Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, June 11, 2019

"The State of Marijuana in The Buckeye State and Fiscal Policy Considerations of Legalized Recreational Marijuana"

The title of this post is the title of this new paper recently posted to SSRN authored by Finley Newman-James, who is a student at The Ohio State University Moritz College of Law.  This paper is the sixth of an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first five papers in this series are linked below.)  Here is this latest paper's abstract:

In 1975, Ohio’s 63rd Governor James A. Rhodes joined the growing trend of marijuana decriminalization by signing a bill passed by the legislature that supported amending the Ohio Revised Code to remove criminal penalties for use of marijuana.  This was the first big change to marijuana laws in Ohio.  Despite Ohio being one of the most conservative states in the country at the time, Rhodes brought Ohio to become the 6th state to relax punishments on marijuana use.  Since that time, a lot has changed regarding the status of cannabis in the Buckeye State.

This paper will first describe the past legal framework for marijuana along with current developments and proposed changes in the future, including a citizen’s ballot initiative that will appear on the November 2019 ballot that could potentially make sweeping changes to Ohio’s Constitution and marijuana law in Ohio.   This is then followed by an analysis of the potential benefits that recreational marijuana could have in respect to key fiscal budgetary issues facing the state of Ohio. 

Prior student papers in this series:

June 11, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, June 6, 2019

SAM releases latest big report on "Lessons Learned from State Marijuana Legalization"

The leading national group opposed to modern marijuana reform, Smart Approaches to Marijuana (SAM), has this big new report titled "Lessons Learned from State Marijuana Legalization"  Here is the short "Executive Highlights" from the start of the report:

Today’s highly potent marijuana represents a growing and significant threat to public health and safety, a threat that is amplified by a new marijuana industry intent on profiting from heavy use.

State laws allowing marijuana sales and consumption have permitted the marijuana industry to flourish, and in turn, the marijuana industry has influenced both policies and policy-makers.  While the consequences of these policies will not be known for decades, early indicators are troubling.

This report, reviewed by prominent scientists and researchers, serves as an evidence-based guide to what we currently observe in various states.  We attempted to highlight studies from all the “legal” marijuana states (i.e., states that have legalized the non-medical use of marijuana).  Unfortunately, data does not exist for several “legal” states, and so this document synthesizes the latest research on marijuana impacts in states where information is available.

Disappointingly, this report does not cover data comprehensively on any single topic from any one state nor does it effectively detail similar data across a number of states.  Rather, as seems common with SAM reports, this latest report focuses on the most troublesome data from a few states to make the case that marijuana reform is creating big problems.  In this way, the report serves as a good review of some of the strongest "data talking points" against marijuana reform, but it does not really provide a sound basis to reach sound conclusions about what lessons should be learned from modern marijuana reforms.

June 6, 2019 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, June 5, 2019

Americans For Safe Access releases detailed "Patient's Guide To CBD"

2CBD_Guide_GraphicThe leading medical marijuana advocacy group, Americans for Safe Access, has this terrific new resource titled "Patient's Guide To CBD."  Though the title of this nearly 50-page report is simple, the contents provide an intricate road-map to the complicated law and science surrounding the status and import of the cannabis-plant compound known as CBD. Here is a section of the publication's introduction:

The Patient’s Guide to CBD was created by Americans for Safe Access (ASA) for the benefit of patients, prospective patients, healthcare providers, consumers, and anyone interested in learning more about CBD.  The goal of this guide is to be an informative and useful reference document that will be shared with others so that patients, doctors, and regulators can make informed decisions regarding CBD....

Patients and consumers should also be aware of the legal and regulatory status of CBD products.  As of May 2019, 47 U.S. states have passed some type of legislation permitting the use of cannabis or cannabinoids such as CBD; nevertheless, cannabis with THC in excess of 0.3% by dry weight is a Schedule I controlled substance under U.S. Federal law.  Therefore, CBD-containing products that were produced from cannabis plants that exceed the federal threshold on THC may be legal at the state level, but are federally illegal.  Additionally, even CBD products that are derived from plants containing not more than 0.3% THC by dry weight may violate laws such as the Food, Drug and Cosmetics Act and create further legal challenges for patients and consumers.

The passage of the Agriculture Improvement Act of 2018 (also known as the 2018 Farm Bill) will make industrial hemp (i.e., cannabis with no more than 0.3% THC by dry weight), including CBD-rich industrial hemp, an agricultural commodity in the United States, but the U.S. Department of Agriculture has yet to promulgate federal regulations or approve state regulations regarding the cultivation and processing of industrial hemp. Further, the U.S. Food & Drug Administration has yet to provide a pathway for the introduction of hemp-derived CBD products into the marketplace.  Therefore, it is not yet federally legal to market hemp-derived CBD as a drug, dietary supplement, food product, or cosmetic.  Patients and consumers are encouraged to stay up to date on these changing regulations to ensure that they, and their products, are in compliance with applicable laws.

Globally, the use of products containing CBD has risen dramatically as more and more people seek alternative ways to improve their health and their lives.  The data has shown an increase in the sales of products containing CBD every year, and sales are expected to continue to rise in the coming years.

June 5, 2019 in History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, June 4, 2019

Spotlighting former congressional leader John Boehner (and his cohorts) following the marijuana money

1541019214-screen_shot_2018-10-31_at_1.52.43_pmThe New York Times has this notable new account of the work of the former US House Speaker as salesman for marijuana reform.  The front-page lengthy piece, headlined "John Boehner: From Speaker of the House to Cannabis Pitchman," is an interesting read and here are a few excerpts:

John A. Boehner, the former speaker of the House, once stood second in line for the presidency and staunchly against legalized marijuana.  Now you can find the longtime Republican standing before a wall-size photo of the Capitol, making an online infomercial pitch for the cannabis industry.  “This is one of the most exciting opportunities you’ll ever be part of,” Mr. Boehner says in an endlessly streaming video for the National Institute for Cannabis Investors.  “Frankly, we can help you make a potential fortune.”

Mr. Boehner’s pro-weed epiphany coincides with the prospect of a payday as high as $20 million from the industry he once so vigorously opposed.  He sits on the board of Acreage Holdings, a marijuana investment firm whose sale to a cannabis industry giant hinges on Mr. Boehner’s ability to persuade Congress and the federal government to legalize, or at least legitimize, marijuana.

The chain-smoking, merlot-sipping, former 12-term congressman from Ohio says he had never lit a joint in his life when he and the former Massachusetts governor William F. Weld, now a Republican candidate for president, joined Acreage’s board last year.  This year, Acreage announced plans to sell itself to Canopy Growth, a Canadian company that is the biggest cannabis holding in the world.  The deal, worth around $3 billion, based on current stock prices for both Acreage and Canopy, would create an $18 billion behemoth, industry analysts say.  Buried deep in a financial filing from Nov. 14, 2018, is Acreage’s disclosure that the two men each hold 625,000 shares in the company, which if sold after the company’s sale to Canopy would net them a fortune.

Representative Earl Blumenauer, Democrat of Oregon and a founder of the Congressional Cannabis Caucus, said he saw Mr. Boehner at a dinner on Capitol Hill the day he joined Acreage.  “I said, ‘John, where were you when we needed you?’ And he said, ‘I’ve evolved,’” Mr. Blumenauer recalled in an interview, imitating Mr. Boehner’s smoky baritone.  (Mr. Boehner had made a similar statement on Twitter earlier that day.)

“He’s nothing if not entrepreneurial,” Mr. Blumenauer said.  “The more the merrier.”  But there is a catch.   The takeover will not happen without substantial changes in marijuana policy, leaving it up to Mr. Boehner and his team of lobbyists to work their magic in Washington.

Mr. Boehner declined to be interviewed for this article.  Terry Holt, a spokesman for the National Cannabis Roundtable, which Mr. Boehner founded in February, declined to speculate on Mr. Boehner’s potential income from the sector. Mr. Boehner “sees an investment opportunity in cannabis,” Mr. Holt said. Citing statistics suggesting most Americans favor “some kind of marijuana reform,” he added, “Who wouldn’t want to be involved?”

A slew of former lawmakers agree.  Among those who have signed on in recent months to represent the weed industry are former Senator Tom Daschle of South Dakota, a longtime Democratic leader in the Senate; former Representative Dana Rohrabacher, Republican of California; former Representative Joseph Crowley, Democrat of New York; and former Representative Carlos Curbelo, Republican of Florida....

In 2016, [Boehner] joined Squire Patton Boggs, successor to the marquee Washington law and lobbying firm, as a “strategic adviser.”  About the same time, Mr. Boehner, who once handed out campaign checks from the tobacco industry to lawmakers on the House floor, joined the board of the tobacco giant Reynolds American, makers of his favorite Camel brand.

Reynolds directors with his profile earn roughly $400,000 a year, and Mr. Boehner holds other board seats, too, Mr. Holt said.  Combined with a pension derived from his $223,000 annual congressional salary, Mr. Boehner likely earns a seven-figure retirement income, even without the potential Acreage windfall.

Mr. Boehner and Mr. Weld joined Acreage’s board in April 2018, and together issued a statement: “We both believe the time has come for serious consideration of a shift in federal marijuana policy.”  For evidence, “We need to look no further than our nation’s 20 million veterans, 20 percent of whom, according to a 2017 American Legion survey, reportedly use cannabis to self-treat PTSD, chronic pain and other ailments,” they said, denouncing “the refusal of the V.A. to offer it as an alternative” to opioids.

Chanda Macias, the National Cannabis Roundtable’s first vice chairwoman and the owner and general manager of the National Holistic Health Center medical marijuana dispensary in Washington, said that she had seen more than 10,000 patients who suffer from a lack of research, education and access to medical marijuana.  “This is not about Boehner,” Ms. Macias added, “this is about saving lives.”

June 4, 2019 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Friday, May 31, 2019

Illinois poised to become first big state to legalize adult use/recreational marijuana via traditional legislation

Soc_rr_no_shadow2A couple of big states on the east coast, New Jersey and New York, saw efforts this year to fully legalize marijuana via traditional legislation falter.  But it seems that the biggest midwestern state, Illinois, got this done this legislative session as reported in this local article:

A recreational marijuana legalization bill will soon land on Gov. J.B. Pritzker’s desk after the Illinois House on Friday voted to pass the comprehensive measure.

The Illinois House voted 66-47 after more than three hours of debate. The Illinois Senate on Wednesday cleared the measure. The governor issued a statement applauding the bill’s passage and pledging to sign it. “The state of Illinois just made history, legalizing adult-use cannabis with the most equity-centric approach in the nation,” Pritzker said. “This will have a transformational impact on our state, creating opportunity in the communities that need it most and giving so many a second chance.”

While there are giant swaths of criminal justice and social equity reforms attached to the measure — including giving a second chance to thousands of people convicted of marijuana possession — practically speaking it will allow Illinois residents over 21 to buy cannabis from licensed dispensaries as soon as Jan. 1.

If signed into law, Illinois will become the first state to approve cannabis sales through the Legislature, instead of a ballot measure. There are laws regulating and taxing cannabis in nine states. In Vermont and Washington, D.C., cannabis possession and cultivation is legal but sales are not regulated.

The measure would also allow Illinoisans over 21 years old to possess 30 grams, or just over an ounce of cannabis flower, and 5 grams, or less than a quarter-ounce, of cannabis concentrates such as hash oil. Additionally, Illinoisans would be able to carry up to a half-gram of edible pot-infused products.

“It is time to hit the reset button on the war on drugs,” bill sponsor state Rep. Kelly Cassidy, D-Chicago, said during the debate. “What is before us is the first in the nation to approach this legislatively, deliberately, thoughtfully, with a eye toward repairing the harm and the war on drugs. We have an opportunity today to set the gold standard for a regulated market that centers on equity and repair.”...

Others weren’t convinced. State Rep. Mary Flowers, D-Chicago, said “the reset button is broken.” “The fact of the matter is nothing in this bill addresses the harm that’s been done to our community,” Flowers said. “Our community is still being used for people to make a profit and get rich and give nothing to the community.”

Amid opposition, some initiatives in the initial measure, which was filed in early May, were scaled back. A House committee this week approved changes that include allowing only medical marijuana patients to have up to five plants in a home. There were also changes made within the expungement provisions, which would have initially automatically expunged hundreds of thousands of marijuana possession convictions.

Now, convictions dealing with amounts of cannabis up to 30 grams will be dealt with through the governor’s clemency process, which does not require individuals to initiate the process. For amounts of 30 to 500 grams, the state’s attorney or an individual can petition the court to vacate the conviction.

The updated language means those with convictions for cannabis possession convictions under 30 grams can get pardoned by the governor. States attorneys would then be able to petition the court to expunge the record. A judge would direct law enforcement agencies and circuit court clerks to clear their record. This only applies to those convicted with no other violent crime associated with the charge. And it only applies for convictions that have taken place when the bill takes effect on Jan. 1....

Designed to address concerns about impaired driving, the measure would also add a DUI Task Force led by Illinois State Police to examine best practices. Those would include examining emergency technology and roadside testing.

Sales from recreational marijuana is expected to bring in $57 million in this year’s budget and $140 million next year, sponsors have said. It should eventually rise to $500 million a year once the program is fully running.

May 31, 2019 in History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, May 30, 2019

Split Second Circuit panel gives small victory to medical marijuana users while turning away their high-profile court challenge to Schedule I placement

I have noted in a number of prior posts linked below the notable lawsuit seeking to ensure legal access to medical marijuana that was filed in federal district court in New York in July 2017 (first discussed in this post.)   In February of 2018, as noted in this post, US District Judge Alvin Hellerstein dismissed the suit, ruling the litigants had "failed to exhaust their administrative remedies” while concluding that "it is clear that Congress had a rational basis for classifying marijuana in Schedule I."  In response to that ruling, I said "plaintiffs in this suit could appeal this dismissal to the US Court of Appeals for the Second Circuit, and doing so would likely keep the case in the headlines [but] I am not optimistic it would achieve much else."  

In fact, an appeal was brought to the Second Circuit, and it did achieve something: an interesting split panel ruling that provides an interesting small victory to the plaintiffs despite ultimately failing to provide an real relief.  Specifically, the majority opinion authored by Judge Guido Calabresi in Washington v. Barr, No. 18-859 (2d Cir. May 30, 2019) (available here), gets started this way:

This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government’s classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 2 U.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655 (D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994) (mem.).  The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to their health.  We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings.  Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.

Judge Jacobs dissents from the panel's failure to just dismiss the lawsuit, and his opinion starts this way:

The plaintiffs seek a declaration that the classification of marijuana as a Schedule 1 substance is unconstitutional because it does not reflect contemporary learning regarding the drug’s medicinal uses.  I agree with the District Court that this case must be dismissed for failure to exhaust administrative remedies in the Drug Enforcement Agency (“DEA”).  The majority opinion does not actually disagree, though it seems to treat lack of jurisdiction as a prudential speed bump. I dissent from the majority opinion’s decision to hold the case in abeyance so that we may turn back to it if, at some future time, we get jurisdiction.

Prior related posts:

May 30, 2019 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, May 29, 2019

"An Argument Against Regulating Cannabis Like Alcohol"

The title of this post is the title of this paper recently posted to SSRN authored by Jonathan R. Elsner, who just recently graduated from The Ohio State University Moritz College of Law. This paper is now the fifth of an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first four papers in this series are linked below.)  Here is this latest paper's abstract:

As cannabis prohibition comes to an end in the United States, federal and state governments must decide how to regulate its cultivation, distribution, and sales.  One particular option, supported by some alcohol wholesalers and distributors, is a regulatory system based on that of the alcohol industry, whereby the government mandates a distribution system consisting of three mutually exclusive tiers: manufacturers, distributors, and retailers.  This paper, however, argues against creating a regulatory framework for the nascent adult-use cannabis industry modeled after the government-mandated, three-tier distribution system established for alcohol post-Prohibition as it inherently stifles innovation and quality.

Essentially, the three-tier distribution system creates an unnatural layer of government-mandated middlemen, distributors and wholesalers, who perpetuate market inefficiencies that benefit themselves, along with large corporations, to the detriment of consumers and small-to-medium-sized businesses.  The beer industry, now dominated by two breweries offering largely undifferentiated products, provides a cautionary tale regarding the effects of the three-tier distribution system to those developing the regulatory structure for the adult-use cannabis industry.

Prior student papers in this series:

May 29, 2019 in Business laws and regulatory issues, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, May 22, 2019

"Half-Baked: The Science and Politics of Legal Pot"

The title of this post is the title of this new article authored by Joelle Anne Moreno and now available via SSRN. Here is its abstract:

Weed, herb, grass, bud, ganja, Mary Jane, hash oil, sinsemilla, budder, and shatter.  Marijuana – whether viewed as a medicine or intoxicant – is fast becoming a part of everyday life, with the CDC reporting 7,000 new users every day and the American market projected to grow to $20 billion by 2020.  Based on early campaign rhetoric, by that same year the U.S. could have a pro-marijuana president.

Despite its growing acceptance and popularity, marijuana remains illegal under federal law.  Like heroin, LSD, and ecstasy, marijuana is a DEA Schedule I drug reflecting a Congressional determination that marijuana is both overly addictive and medically useless.

So what is the truth about pot?  The current massive pro-marijuana momentum and increased use, obscures the fact that we still know almost nothing about marijuana’s treatment and palliative potential.  Marijuana’s main psychoactive chemical is THC; but it also contains over 500 other chemicals with unknown physiological and psychological effects that vary based on dosage and consumption method.  Medical marijuana may be legal in 32 states and supported by 84% of Americans, but federal constraints shield marijuana from basic scientific inquiry.  This means that lawmakers and voters are enthusiastically supporting greater access to a drug without demanding critical scientific data.  For policymaking purposes, this data should include marijuana’s short and long-term brain effects, possible lung and cardiac implications, chemical interactions with alcohol and other drugs, addiction risks, pregnancy and breast-feeding concerns, and the effects of secondhand smoke.

This Article treats marijuana as a significant contemporary science and law problem.  It focuses on the fundamental question of regulating a substance that has not been adequately researched.  The Article examines the extant scientific data, deficiencies, and inconsistencies and explains why legislators should not rely on copycat laws governing alcohol or prescription narcotics.  It also explores how marijuana’s hybrid federal (illegality)/state (legality) raises compelling theoretical and practical Constitutional questions of preemption, the anti-commandeering rule, and congressional spending power.  Marijuana legalization has, thus far, been treated as a niche academic concern.  This approach is short-sighted and narrowminded.  Marijuana regulation implicates the reach of national drug policy, the depth of state sovereignty, and the shared obligation to ensure the health and safety of our citizenry.

May 22, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Monday, May 20, 2019

Fitting headlines mark the many challenges of the next era of modern marijuana reforms

There is so much media coverage of so many marijuana related issues that I barely have time to keep up with my reading, let alone blog about all the interesting stories.  (E.g., I keep meaning to blog about the New York Times Magazine's CBD cover story.)  But in the last day, I saw three lengthy and connected stories that relate to the intersection of marijuana reform, politics and social justice that seems to have come now to define the realities and challenges of this space.  The headlines of the three pieces help capture the themes:

In addition to recommending all these pieces, I will seek to summarize them by just saying it has always been clear to me that effective and sound legal reform in this space is very, very hard and calls for lots and lots of folks working very, very hard to get it as right as possible from the outset and then continuing to work very, very hard to assess and refine reform regimes. 

May 20, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, May 15, 2019

Interesting data on marijuana arrests in DC after 2014 legalization initiative

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The American Civil Liberties Union of the District of Columbia has this notable new report titled "Racial Disparities In D.C. Policing: Descriptive Evidence From 2013–2017," which includes a section on marijuana arrests. Here is what this report reports (with some added emphasis):

Passed in 2014, Initiative 71 made it legal for people to possess, use, grow, and share small quantities of marijuana.  The law does not authorize individuals to consume marijuana in public or sell the drug to other people.  As a result, public consumption and distribution remains illegal.

The marijuana statute became effective in February 2015 and, that year, the overall number of arrests for marijuana-related offenses plummeted, from 1,747 arrests in 2014 to just 216 arrests in 2015.  The drop was largely driven by the reduction in arrests for marijuana possession.

However, while arrests for marijuana possession remained low, the number of arrests for public consumption of marijuana has been steadily increasing, particularly for Black people.  After marijuana legalization, consumption arrests briefly declined before starting to rise, increasing from 79 arrests in 2015 to 217 in 2017.  Arrests for that offense are racially skewed: even though white and Black D.C. residents use marijuana at similar rates, Black individuals comprised 80% of the individuals arrested for marijuana consumption from 2015–2017.

This disparity could stem from officers’ racial bias.  Alternatively, the disparity could be the result of another statute that makes it illegal to do in public what is legal to do in private — thereby penalizing those who have less access to private property.  These explanations could also work in tandem. No matter the cause, the consequence of the current marijuana regime is that Black people are ensnared in the criminal justice system at disproportionate rates for what the D.C. government agrees is a minor offense.

I understand the continued concern, as expressed here, that even after marijuana legalization "Black people are ensnared in the criminal justice system at disproportionate rates."  But I think the dramatic decline in the total number of marijuana arrests is the much bigger story and one that cannot be emphasized too much.  Because even the most minor of drug convictions or even just arrest can have profound impact on all sorts of future employment, schooling and housing opportunities, a yearly reduction of 1500 arrests means (somewhat invisible) yearly improvements in 1500 lives (and all those touched by those lives) thanks to marijuana reform.

May 15, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)

Tuesday, May 14, 2019

Lots of notable green coverage in lots of sections of the Gray Lady

My east coast roots (and bias?) has long led me to look at the New York Times as the "paper of record" in so many ways (and that thinking led me to view as so important  the 2014 New York Times editorial calling for the legalization of marijuana).  But the biggest developments in the marijuana reform space have taken place in other regions, and so other papers, especially the Denver Post and the Boston Globe, have been much more at the forefront of marijuana coverage.

But the Gray Lady seems to be keeping pace with marijuana developments these days, and some headlines from distinct section of the paper this past week highlights all the angles the paper is now covering:

From the local section, "Marijuana Legalization Hits a Wall: First in New Jersey, Then in New York"

From the U.S. section,"Attorneys General From 33 States Urge Pot Banking Reform"

From the "Mind" section, "The Stoner as Gym Rat"

From the "Style" section, "Design’s New Leaf"

And, interestingly, the NYT is also now soliciting tales to tell via this "Reader Center" quesy: "How Has Colorado’s Legalization of Marijuana Affected You? Help us better understand how Coloradans are adapting to their state’s legalization of pot."

Of course, the Gray Lady has not quite yet turned into Marijuana Moment.  But it is still interesting to see the stories it is deciding to cover in this space, and encouraging that they are eager to inquire further.

May 14, 2019 in Current Affairs, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, April 29, 2019

"Marijuana Banking in New York and Around the U.S.: 'Swim at Your Own Risk'"

The title of this post is the title of this paper just posted to SSRN authored by Jordan Hoffman, who is a student at The Ohio State University Moritz College of Law.  This is the second of what will be an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first paper in the series was authored by Shelby Slaven under the title "The Canna(business) of Higher Education.") 

Here is the abstract of this new paper on marijuana banking:

Today, banking in any way relating to marijuana is a violation of federal law.  Conflicting laws and guidance from the federal and state governments threatens the welfare and success of a billion-dollar industry.  Analyzing the current marijuana banking laws, regulations, and practices in New York and around the US provides a glimpse into an industry suffocating from public pressures and overpowering economic tides.  To protect and uphold the integrity of our government and the agencies it deems controlling, the federal government must reform marijuana banking.

April 29, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, April 18, 2019

Terrific coverage of all sorts of issues via Reason's "Weed Week"

As a general matter, I am not too keen on all the marijuana buzz devoted to 4/20.  But, as a specific matter, I really like what folks at Reason have a put together in a "Weed Week" series of pieces.  Here are the pieces posted to date: 

April 18, 2019 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

"Canada Has Made Pot Super Boring"

Download (19)The title of this post is the headline of this interesting New Yorker commentary authored by Stephen Marche. Here are excerpts:

This 4/20 will be different, at least in Canada.  It will be the first celebration of marijuana since the country made pot legal in October, 2018.  The time passed since the end of prohibition hasn’t been long enough to establish any direct consequences from legalization so far, but one thing has already become painfully clear from Canada’s experiment. When you make pot legal, you make it super, super boring....

Other than new signs at the airport warning the more dull-witted Canadian citizens to dispense of their marijuana in the appropriate receptacles before leaving the country, it was hard to notice any real change after the passage of the marijuana laws.  The pot dispensaries, semi-underground before the end of prohibition, were supposed to disappear, but went on just as before.  They’ve just becoming increasingly polished.  The place where I buy my weed looks like a Pottery Barn, and it was so busy the other day that they gave me one of those buzzers they hand out at Shake Shack to tell you when your order is ready.  I had to wait twenty minutes.

It’s also money that’s making pot boring.  Recently, I went to a champagne-and-hot-wings party — a superb concept, by the way — in a wealthy neighborhood in Toronto, and it felt like half the people attending were in the cannabis industry in one way or another; many of them had transitioned from hedge funds.  Marijuana stocks have overtaken real estate as the standard conversational go-to of Toronto dinner parties.  And you have not understood how banal marijuana can be until you overhear two parents watching their kids at a swimming lesson discuss how I.S.O. 9000 certification affects the marketing efforts for stocks of C.B.D.-extract companies....

Even a few months after legalization, I find myself wondering how much of the pleasure of marijuana came from its illicitness.  When you used to pass around a joint, you were sharing a little naughtiness, a tiny collective experience of rebellion.  Now, at a party, when you a pass around a joint, you’re basically saying let’s go stare at things for a while.  When I see cops on the street today, there is nothing I do that might upset them.  We are on the same side, utterly.  It’s pathetic.

There may still be dangers to marijuana, of course.  The public-health effects of legalization are, as yet, unknown.  Nobody knows whether legalization will lead to higher rates of teen-age mental illness, or to traffic accidents.  But, already, it is unimaginable that marijuana would be made illegal again.  Even with the brief distance of a few months since the end of prohibition, the sheer stupidity of the drug war appears absolute. Marijuana isn’t worth the attention of the police.  It’s not even that good a drug. It wouldn’t be in my top five, anyway.

One of the most important consequences of marijuana’s legalization is that the drug can now be studied. We might learn how it works and what it does to people. Clinical trials will replace the loose collection of vague anxieties and promotional pseudoscience that have dominated discussions of marijuana up to this point in history.  It will finally be possible to think sensibly about marijuana. And what could be more boring?....

It has to be said, in boredom’s defense, that it’s the cure for a great number of evils.  The cliché holds that America is losing the war on drugs, but it’s not quite accurate. Cocaine and heroin have never been cheaper.  Overdose deaths recently topped car accidents as a more likely cause of death for adults in the United States.  But America is very much winning the war on drugs that are legal: tobacco use has declined sixty-seven per cent since 1965, and drunk-driving fatalities by forty-eight per cent since 1991.  Of course, the way America reduced the use of these drugs wasn’t by killing bad guys and arresting users en masse, but by treating them like social problems with collective solutions.  Yawn.  No one’s going to make a season of “Narcos” out of that.

Canada is proving, once again, the deep political power of boredom: if you want to suck the power and glamour out of drugs, let the government run them.

April 18, 2019 in Business laws and regulatory issues, History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)

Friday, April 12, 2019

"The Canna(business) of Higher Education"

The title of this post is the title of this paper just posted to SSRN and authored by Shelby Slaven, who is a student at The Ohio State University Moritz College of Law. Here is the paper's abstract:

While the idea of legalizing cannabis for adult use is gaining on acceptance among the public, the past and current policies on both, the state and federal level, have resulted in dearth of research on the efficacy of cannabis for therapeutic purposes as well as possible societal and health consequences of recreational use.  Institutes of higher education are best positioned not only to reform research on the substance, but to train a generation of cultivators, distributors, and healthcare professionals, and while doing so address some of the historical harms perpetrated by the policies of the War on Drugs.  Students are seeking out ways to capitalize on a growing market and remedying past discrimination should be a top priority.  This paper first provides an overview of cannabis legalization as it stands today, the political efforts that got it here, and those that will move it forward.  It then discusses institutes of higher education and the efforts to bring cannabis into the classroom.  Lastly, this paper argues that Historically Black Colleges and Universities can provide education, training, and a foot in the door for Black individuals who have suffered harsher criminal penalties in the name of the war on crime.

April 12, 2019 in Business laws and regulatory issues, Employment and labor law issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Spotlighting racial and regional differences in modern marijuana reform dynamics

I am very sad that presentations in my my Marijuana Law, Policy & Reform seminar have wrapped up, but that reality gives me a bit more time and space here to catch up on the marijuana law, policy and reform stories that most catch my eye.  One such important story that I missed a few weeks ago comes here from Stateline under the headline "African-Americans Missing Out on Southern Push for Legal Pot."  I recommend the extended article in full, and here are some excerpts:

Medical cannabis laws typically lay out the conditions for which the drug may be prescribed. But the laws in Arkansas and Florida — the only Southern states that have legalized medical cannabis — don’t cover sickle cell disease, which causes acute pain and disproportionately affects African-Americans. The bills advancing in Tennessee and Kentucky also exclude that condition. Three states that have legalized medical but not recreational cannabis — Connecticut, Ohio and Pennsylvania — allow sickle cell disease patients to use it....

Black legalization advocates also fear that even if medical cannabis becomes legal, white politicians won’t regulate licensing and permitting in a way that ensures equitable opportunities for people of color. “Without that, it’ll be more of the same,” said Dr. Felecia Dawson, a board-certified physician who closed her Georgia-based OB-GYN practice to focus on advocating for medical cannabis. “Legislators will keep people of color ... from the benefits of cannabis.”

Nationally, research suggests that medical marijuana use is more common among whites with high incomes, perhaps in part because of the long history of racial disparity in drug enforcement....

Every Southern state by 2016 had legalized the treatment of a limited number of conditions using CBD oil. As public support increased, so did lawmakers’ willingness to expand the list of eligible conditions. But some conditions that affect minority populations at higher rates than white ones — such as sickle cell disease, which affects 73 in 1,000 African-Americans at birth compared with 3 whites, according to federal estimates — are not included in proposals currently making their way through several Southern statehouses.

In a 2017 hearing co-hosted by the Arkansas Medical Marijuana Commission, following a ballot initiative that had legalized medical cannabis, advocates wore “Diversity for All” T-shirts to emphasize the drug’s importance to minority residents. “We know that such diseases as hypertension, sickle cell, neuropathy and so on are more predominant in blacks,” Casey Caldwell, a black cannabis advocate, said at the hearing.

“It is safe to say that African-American communities would benefit the most,” she added. “In the past, pharmaceutical drugs have been priced so high that [we] have to make a decision whether or not they should eat or whether they should purchase medication.”

Those concerns echoed what Dee Dawkins-Haigler, a former Democratic Georgia representative who headed the state’s Black Caucus, said in 2015 about the initial absence of black people among the state’s 17 appointees to the Commission on Medical Cannabis. The Black Caucus eventually fought to get sickle cell disease added to the list of conditions eligible for CBD oil....

In Florida, black farmers initially cried foul at being shut out of the state’s multibillion-dollar cannabis trade over policies that required license holders to have operated for 30 straight years. According to Roz McCarthy, founder of the Florida-based advocacy group Minorities for Medical Marijuana, the state’s law lacked the teeth needed to ensure that medical cannabis license holders adhered to requirements to ensure diversity in hiring. A spokesperson for the Florida Department of Health said that state law “does not require medical marijuana treatment centers to report the race or ethnicity of its owners.”

McCarthy said, “We’re trying to push lawmakers to understand that they have the ability and the power to ensure exclusionary practices don’t happen. Barriers are there. But the opportunity to reduce barriers is also there.”

April 12, 2019 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Thursday, April 4, 2019

More encouraging expungement news out of California cities thanks to proactive district attorneys

In my article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I gave justified credit to work being done at the state and local level in California to ensure marijuana reform is operationalized  as a form of criminal justice reform.  I am pleased to see this work continuing, especially as described in this news release from the LA DA titled "Los Angeles, San Joaquin County District Attorneys Announce Code for America Partnership to Reduce, Clear Cannabis Convictions."  Here is how the release starts:

District Attorneys Jackie Lacey of Los Angeles County and Tori Verber Salazar of San Joaquin County joined with Code for America today to announce a cutting-edge, criminal justice reform partnership to automatically clear more than 50,000 eligible cannabis convictions under Proposition 64.

The two counties are among the first in California to take part in Code for America’s pilot program that proactively identifies convictions that qualify for resentencing or dismissal under the voter-approved initiative in November 2016.

“We have partnered with Code for America to take on this monumental effort in the state’s most populous county,” District Attorney Lacey said. “As technology advances and the criminal justice system evolves, we as prosecutors must do our part to pursue innovative justice procedures on behalf of our constituents. This collaboration will improve people’s lives by erasing the mistakes of their past and hopefully lead them on a path to a better future. Helping to clear that path by reducing or dismissing cannabis convictions can result in someone securing a job or benefitting from other programs that may have been unavailable to them in the past. We are grateful to Code for America for bringing its technology to our office.”

“The war on drugs led to decades-long racial disparities in cannabis-related arrests and convictions,” said Los Angeles County Board Supervisor Mark Ridley-Thomas. “We have a responsibility to right these wrongs by utilizing the latest innovations in technology, such as Code for America’s Clear My Record initiative, to ensure that people who have been disproportionately harmed by the war on drugs get the second chance they deserve.”

“Since the passage of Propositions 47 and 64, the San Joaquin County District Attorney’s Office, in partnership with the Public Defender’s Office and the Superior Court, have worked collaboratively to successfully implement the law in a timely and efficient manner,” said San Joaquin County Public Defender Miriam Lyell in joint statement with District Attorney Tori Verber Salazar. “We have seen firsthand the capabilities of the Clear My Record tool to facilitate the record clearing process and provide a much-needed service to our community, restoring families along with tremendous cost savings to the People of the State of California. This powerful tool represents the best of public-private partnerships: harnessing the power of technology to create new pathways of opportunity for members of our community with convictions.”

“In the digital age, automatic record clearance is just common sense,” said Jennifer Pahlka, Founder and Executive Director, Code for America. “Thanks to the leadership of District Attorneys Lacey and Salazar, we’ve shown how records clearance can and should be done everywhere. When we do this right, we show that government can make good on its promises, especially for the hundreds of thousands who have been denied jobs, housing and other opportunities despite the passage of laws intended to provide relief. Clear My Record changes the scale and speed of justice and has the potential to ignite change across the state and the nation.”

Both offices have been working with Code for America since July 2018 to develop a system that examines cannabis convictions. There is estimated to be approximately 50,000 eligible convictions in Los Angeles County. There are an additional 4,000 eligible convictions in San Joaquin County.

Recognizing that California’s record clearance process was not designed for the digital age, this historic partnership demonstrates a growing momentum for technology-assisted record clearance in California. It builds on last month’s announcement that Code for America’s Clear My Record technology helped San Francisco dismiss and seal more than 8,000 cannabis convictions.

The references to Code for America’s work in San Francisco is both timely and a bit dated. I say that because of this recent tweet by the SF DA:

April 4, 2019 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, April 1, 2019

"Can Legal Weed Counter Decades Of Discriminatory Drug Enforcement?"

The question in the title of this post is the headline given to this Connecticut public radio show which aired today.  I am very grateful to Professor Jenny Roberts, who was part of the show, for sending me the link to the show and also for providing this summary:

As you may know, Connecticut's proposed bill has some really interesting social justice/equity provisions – not only with expungement, but also with who will actually get the licenses in Connecticut.  The show also explored issues of how those affected negatively by drug laws over the years might now get funding, etc, to start a marijuana business. State Sen. Gary Winfield, who is sponsoring part of the legislation, is on the whole time and well worth a listen, and a Boston Globe journalist joined for one segment on the Massachusetts social equity situation.

Here is how the show's website describes the 50-minute segment:

With recreational marijuana on sale in Massachusetts, Connecticut lawmakers are looking at legalizing recreational cannabis more seriously than ever.  Meanwhile, research continues to show that the enforcement of drug laws in recent decades has disproportionately impacted communities of color.  This hour, we ask: if Connecticut legalizes recreational marijuana, can it do so in a way that corrects some of this history of discriminatory enforcement?

We talk with Judiciary co-Chair Senator Gary Winfield, who is calling for putting equity at the front of legalization efforts.  And we check in about how racial justice has — or hasn’t — come along with legalization in states that already have legal weed, from Massachusetts to California.

April 1, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, March 27, 2019

Examining state medical marijuana programs and historic links to alcohol prohibition

A set of students in my Marijuana Law, Policy & Reform seminar are taking a deep dive into state medical marijuana programs this coming week.  Here is how they explain their planned presentation and links to some background reading:

For our presentation, we analyzed each state’s medical marijuana programs to determine ease of accessibility for patients.  We studied each state’s medical marijuana program and compared variables such as cost of registration, reciprocity, approved conditions, and many others.  Through our research, we discovered that there is wide spectrum of accessibility among the states which have legalized medical marijuana.  More specifically, we concluded that the top 5 easiest states to obtain a medical marijuana card are California, Hawaii, Illinois, Michigan, and Nevada.  Additionally, we concluded that the hardest states (among those which have legalized it) to access medical marijuana are Florida, Louisiana, Missouri, and Utah.

Next, we sought to determine if there was any correlation between the states that had easier/hardest accessibility with when those states ratified and abolished prohibition.  Our hypothesis was that the states with the laxer medical marijuana laws would be the ones that repealed prohibition sooner than those with the harsher medical marijuana laws.  Generally, we found that that states that ratified the 21st Amendment sooner seemed to have laxer medical marijuana laws and the states with the harsher laws repealed prohibition later on.  Also, side note, Oklahoma didn’t even repeal prohibition until 1959!

Background Sources

March 27, 2019 in Assembled readings on specific topics, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, March 24, 2019

"Marijuana Legalization: Dealing with the Black Market"

The title of this post is the title of a presentation to be made by one of my students in my Marijuana Law, Policy & Reform seminar this coming week.  Here is part of his explanation of his topic and links to some background reading:

Summary:

I will be looking at the prevalence (and in some cases, the dominance) of the black market for marijuana in jurisdictions that have legalized marijuana. I will specifically be looking at states that have legalized recreational use. However, I may still look at states that have only legalized medical marijuana because the black market still dominates in many of those states as well.

A major argument for marijuana legalization is potential revenue, but the black market can steal a significant amount of revenue from states.  Additionally, the existence of a black market is detrimental to public health and safety for a variety of reasons, including the distribution of potentially laced products. 

At first, I was surprised by just how dominant the black market remains in states that have legalized. For example, in California the black market is estimated to be worth 4 times the legal market. But consider major reasons why consumers choose to purchase cannabis products from the black market:

  • The black market offers much cheaper weed with no sin taxes;
  • The black market is able to sell higher potencies of marijuana;
  • The black market is able to sell larger amounts of marijuana;
  • The black market is oftentimes much more convenient.

Another reason people choose the black market is because they are familiar with it. Someone who has had a dealer for years is not all of a sudden going to switch to buying from a legal source.  Additionally, the black market (generally) has no age restrictions, so the black market still exists for minors who wish to use marijuana products.

I also plan on talking about the regulations on legal cannabis providers and how those contribute to the struggle to subdue the black market (ex: marketing, banking, barriers to entry, supply problems, lax enforcement of black market).  Finally, although I recognize that wholly eliminating the black market is infeasible, I will analyze potential solutions to the problem, such as deregulating (decreasing barriers to entry, lowering the age restriction, increasing enforcement, increasing strength of legal products, etc.) and working with the black market dealers.

Background Resources:

"Can a marijuana dispensary’s budget pot put illegal dealers out of business?" (discussing Nevada’s lower cost product dubbed the Black Market Killer) 

"Marijuana Black Market ‘Business Has Never Been Better’ In Canada Despite Legalization, Cannabis CEO Warns" (discussing Canada’s struggle with the black market)

"'I deliver to your house': pot dealers on why legalization won't kill the black market" (interview with two black market dealers in Canada)

"How marijuana entrepreneurs can outsmart black-market competitors" (discussing ways to possibly beat the black market)

"California’s black market for pot is stifling legal sales. Now the governor wants to step up enforcement" (discussing California’s black market)

"Marijuana Advertising Rules Challenge California Businesses" (discussing marketing regulations (including <30% of Minors Rule)

March 24, 2019 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)