Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, December 30, 2021

Rounding up interesting marijuana/drug policy "year in review" postings

2021-marijuana-bubbles-leafI saw this afternoon two notable "year in review posts," and there are links:

From Marijuana Moment, "Here Are The Biggest Marijuana, Psychedelics And Drug Policy News Stories Of 2021"

From NORML, "2021 Year in Review: NORML’s Top Ten Events in Marijuana Policy"

I recommend both of these pieces in full, but I will here highlight a few of the top-10 from the NORML review that gives particular attention to my concerns about the intersection of marijuana reform and criminal justice.

#1: Five More States Enact Adult-Use Legalization Laws

Legislatures in five states — Connecticut, New Jersey, New Mexico, New York, and Virginia — enacted laws in 2021 legalizing adult-use marijuana possession and regulating retail cannabis markets. These legislative victories marked a significant change from past years, when similar laws were enacted almost exclusively via citizens’ initiatives, not by legislative action. In total, 18 states — comprising nearly one-half of the US population — have now adopted laws regulating adult use marijuana production and retail sales.

“State lawmakers have learned that advocating for adult-use legalization laws is a winning political issue that is popular with their constituents, regardless of their age, race, or political affiliation,” NORML’s Deputy Director Paul Armentano said.

#2: State Officials Vacate Over Two Million Cannabis Convictions

Officials in multiple states have moved to either expunge or seal the records of over two million people with cannabis convictions. Specifically, officials in New York announced vacating an estimated 400,000 convictions. In Virginia, officials have similarly taken steps to seal some 400,000 convictions. In New Jersey, officials have expunged over 360,000 marijuana-related convictions. Officials in Illinois have vacated an estimated 500,000 cannabis convictions, while California officials have expunged over 200,000 convictions. In all, more than a dozen states have enacted legislation in recent years facilitating the process of having past marijuana convictions either expunged or sealed from public view.

In December, US Representatives Dave Joyce (R-OH) and Alexandria Ocasio-Cortez (D-NY) introduced federal legislation to provide funding to state and local governments for the purposes of expunging the records of those with marijuana-related convictions. Following the bill’s introduction, NORML’s Political Director Justin Strekal said, “This bipartisan effort represents the growing consensus to reform marijuana policies in a manner that addresses the harms inflicted by prohibition. There is no justification for continuing to prevent tens of millions of Americans from fully participating in their community and workforce simply because they bear the burden of a past marijuana conviction.”....

#4: Marijuana Arrests Decline Precipitously

The number of persons arrested in the United States for violating marijuana laws declined 36 percent between 2019 and 2020, according to data released in September by the US Federal Bureau of Investigation. According to the agency, police made an estimated 350,150 arrests for marijuana-related violations in 2020. That total is down more than 50 percent from peak levels in 2008, when police made over 800,000 marijuana-related arrests. Marijuana-related arrests were least likely to occur in 2020 in western states — most of which have legalized the possession of the substance.

“As more states move toward the sensible policy of legalizing and regulating cannabis, we are seeing a decline in the arrest of non-violent marijuana consumers nationwide,” NORML’s Executive Director Erik Altieri said. He added, however, “While these numbers represent a historic decline in arrests, even one person being put into handcuffs for the simple possession of marijuana is too many.”

December 30, 2021 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, December 27, 2021

Looking back and forward suggests pessimism (with a hint of hope?) for federal marijuana reform in 2022

6a00d8341bfae553ef0223c85155dc200c-320wiA couple of notable new commentaries on federal marijuana reform caught my eye recently.   This first one is by Alex Shephard at The New Republic under this full headline: "Legalize It, Already!: Biden needs to ditch his old-fashioned ideas about marijuana and realize that legalization is a winning bipartisan issue — something he desperately needs in 2022."  This piece is more about marijuana politics than policy, and here are a few passages with an emphasis on the White House:

“You would think that President Biden would embrace legalization, considering where his constituents are on this issue,” Chris Lindsey, legislative analyst at the Marijauna Policy Project, told me. Per a recent Pew survey, 60 percent of Americans favor full legalization, while 31 percent favor legalizing marijuana for medical use only, meaning that a whopping 91 percent of Americans are in favor. And while several states have relaxed laws or fully legalized weed, the federal government is trailing....

Given the general sense of inertia in Congress, there are other less far-reaching but still important things the Biden administration could do.  The Cole memo, issued by Eric Holder in 2013 and revoked by Jeff Sessions five years later, instructed U.S. attorneys not to enforce federal marijuana laws.  That memo could be reinstated and even expanded to other departments.  Biden could offer clemency to people currently imprisoned for nonviolent cannabis-related offenses and pardons for them and those who have been released.

All of this would be better politically and morally, and in policy terms, than what Democrats are doing now. “You would think that President Biden would embrace legalization, considering where his constituents are on this issue,” Lindsey told me.  “There’s really no question [about] the level of support that they have, and yet the president seems to be AWOL.” After a year ending with political and legislative inertia — and with Biden’s tanking poll numbers, particularly among young people — marijuana policy would be the perfect place to start.

This second one is by John Hudak at Brookings under the headline: "The numbers for drug reform in Congress don’t add up." This piece effectively details some political cross-currents thwarting reform progress in Congress. It should be read in full, and here are some highlights:

Often, in a legislative body, the issue is not whether a law should be reformed, but how that law should be reformed. And there’s the rub for federal legalization legislation. Liberals and progressives in the Democratic Party cannot agree with moderate and libertarian Republicans on what cannabis reform should look like, even if majorities agree that the law should be changed. And as pro-cannabis reform members from both sides dig their heels in on the importance of provisions that are close to their heart (and the heart of their base), it makes assembling that coalition impossible....

It is clear that as a legalization bill shifts away from a pro-business direction, the number of Republican supporters plummets.  And while in a Democratic-controlled House, leadership can muster the votes to pass something like the MORE Act, the requirement to beat a filibuster in the Senate makes passage of more social equity and racial justice-oriented comprehensive legislation an impossibility.  It is not clear if Democrats can even keep all 50 of their Democratic members in line for such a vote, and it is a certainty that they cannot attract the 10 or more Republicans necessary to clear the 60-vote hurdle. And more moderate legislation that could attract more Republicans will likely lose the more progressive members of the Senate Democratic Caucus....

Ultimately, cannabis reform supporters inside and outside of Congress need a reality check about the state of play of current cannabis reform proposals, and what additional complications the future may offer. Regardless of the chosen path forward, there will be naysayers, holdouts, resistance, and anger.  There will be accusations of bloated government or not doing enough to reverse the effects of the drug war.  That is standard for an interest group environment on a passionate issue in a deliberative body.  However, in the end, Congress has a choice between doing nothing and letting prohibition win the day and allowing all of the consequences of that to remain. Or doing something short of perfect, that addresses some of the real harms that drug prohibition has created in this country.

Looking for a hint of hope in these stories, I am drawn to notion that, if the Biden team concludes that Congress is unlikely to get much (if anything) done on this front in 2022, it might look for "safe" executive action that serves as a political winner in this space.  And, as I see it, a clemency initiative focused around certain marijuana offenders — maybe not one as robust as urged by many advocates, but still impactful — could be a huge political winner. 

Frustratingly, I know I am projecting a vision of what I hope will happen soon, not an account of what seems likely in the short term (or even long term).   But I really want to believe there are "safe" and  smart and impactful ways for Prez Biden to start leaning in to this issue at least a bit more.  And at some point he has to at least try in some way to deliver on his 2020 campaign promise to "Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions."

UPDATE on 12/28: I see that the Wall Street Journal now has this new article in a similar vein discussing the challenges of federal marijuana reform under this full headline: "Cannabis Overhaul in Washington Is Only Getting Harder: Legalization agenda could be complicated by states that want to defend their nascent marijuana industries and associated tax revenues."

December 27, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, December 20, 2021

Initiated statute effort to legalize marijuana in Ohio advances with submission of signatures to prompt legislative consideration

Ballot Initiative Process Diagram_final_16Dec202_webAs reported in this local article, headlined "The Just Like Alcohol campaign submits signatures to state, one step closer to getting recreational marijuana on Ohio ballot next year," a notable effort to advance marijuana reform in the Buckeye State advanced a bit today.  Here are the basic details:

A group of Ohio medical marijuana businesses with a proposal placing recreational cannabis on the ballot said they submitted 206,943 signatures to Ohio Secretary of State Frank LaRose’s office Monday.  The submission of signatures is just the latest step in the winding process to get the issue on the November 2022 ballot....

The Coalition to Regulate Marijuana Like Alcohol campaign needed 132,887 signatures from at least 44 of Ohio’s 88 counties by Dec. 27.  The campaign’s spokesman, Cleveland attorney Tom Haren, said campaign workers also verified signatures as they came in.  “The success of our petition drive shows just how eager Ohioans are to end prohibition and legalize the adult use of marijuana,” Haren said. “We look forward to receiving the results of the Secretary of State’s review, and are eager to begin working with legislators on this important issue.”

If county election officials verify the signatures, the proposal will go before the Ohio General Assembly, which gets to first stab at creating a law based on it.  If the legislature fails, the proposal will go on the ballot as an initiated statute.  Haren said the campaign would prefer if the legislature passed a law.

Under the proposed law, Ohioans ages 21 and older could buy and use marijuana.  They could grow up to six plants per person and 12 plants per residence.  It would create a Division of Cannabis Control under the Ohio Department of Commerce to license, regulate, investigate and penalize adult-use cannabis operators, testing laboratories and individuals who would be required to be licensed.

Existing Ohio medical marijuana growers could expand their cultivation areas once they receive an adult-use cultivator license, the proposal says.  Nine months after the proposed law goes into effect, the state would have to issue recreational licenses for existing medical marijuana dispensaries, cultivators, processors and testing laboratories if they complied with other provisions of the proposed law....

People who buy recreational marijuana would be taxed 10% at the dispensaries, and have to pay any other state and local sales taxes at the time of the purchase.  Of that, 36% of tax revenues would go to communities with recreational dispensaries; 36% to a social equity and jobs fund that would seek to “redress past and present effects of discrimination and economic disadvantage” for communities that have been disproportionately affected by marijuana prohibition, such as the more severe criminal penalties for Black men in comparison to white men possessing the same levels of marijuana; 25% to substance abuse and addiction efforts; 3% to the Division of Cannabis Control to support the costs of regulation....

To head off the initiated statute, the legislature is considering a few bills to broaden marijuana access.  Last week, the Ohio Senate passed and sent to the House a bill that would expand medical marijuana to anyone with a condition that would “reasonably be expected to be relieved” by the drug. It would increase cultivation areas and changes the medical marijuana regulation scheme, which currently is divided among three state agencies, to one under the Ohio Department of Commerce.

Those of us working at the Drug Enforcement and Policy Center, which is based at The Ohio State University Moritz College of Law, have been closely following this initiative and all the other marijuana reform proposals being actively discussed in the Buckeye State.  DEPC has created a set of materials to aid in understanding the Ohio initiative process as well as the substantive particulars of different legislative reform proposals.  These Ohio materials are collected here under the heading "A Comparison of Marijuana Reform Proposals in Ohio."  That page includes this link to the original graphic appearing above that we have created to follow the Ohio initiative process, and here is just a sampling of some of the original Ohio materials to be found at the page:

December 20, 2021 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, December 19, 2021

Is Congress sure to take up marijuana reform in spring 2022?

The question in the title of this post is prompted by this curious new Hill piece boldly headlined "Congress to take up marijuana reform this spring."  The lengthy article discusses all sorts of reasons why it is quite possible Congress could get serious about marijuana reform in 2022, but it really does not present any reason to expect that it actually will take up reform soon.  Here is an excerpt:

Much of the pressure for reform is bipartisan.  On Thursday, Reps. Dave Joyce (R-Ohio) and Don Young (R-Alaska) sent a letter to Biden and Vice President Harris urging them to change the severity with which cannabis is listed, or “scheduled,” under the Federal Controlled Substances Act, distinguishing it from "far more dangerous drugs such as Fentantly, morphine, methadone and cocaine.”

The restrictions forced by marijuana’s place as a Schedule 1 drug, Joyce wrote, “puts the United States far behind many of our international partners and scientific competitors,” from Ireland and the U.K to South Korea and Israel.  “For the sake of researchers, medical professionals and patients across the United States who continue to lose access to life-saving therapies and data every day #cannabis remains over controlled,” Joyce wrote on Twitter, “I will keep asking.”

December 19, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Thursday, December 16, 2021

"The Effects of Marijuana Legalization in Colorado: More Neutral than Expected"

The title of this post is the title of this paper recently posted to SSRN and authored by Jesse Plaksa, a student at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

In 2012, Colorado was among the first states to legalize marijuana for recreational use, coming only second to Washington by four days.  However, Colorado was the first state to begin selling recreationally.  Thus, interested parties immediately began looking to Colorado’s experiment to help determine what exactly happens when a state begins regulating marijuana like alcohol.  Any major policy change will have many wide-ranging effects.

This paper will examine a variety of those effects, including the effects on crime, use of other illicit drugs, policing, health, and economic effects.  The effects on crime are not clear because there are conflicting reports showing crime has gone down, but others show a neutral effect on crime.  Legalization does not seem to affect clearance rates of crimes, as proponents often argue it would.  It is not yet clear whether marijuana legalization lowers opioid overdose deaths, though researchers would expect that some opioid users would use marijuana instead. Additionally, legalization appears to have little to no effect on traffic accidents and fatalities.  Legalization also added a substantial amount of new jobs to Colorado’s economy and brings in substantial revenue with Colorado’s high tax rate on marijuana sales.

Marijuana is still federally illegal, being a schedule I drug along with heroin, but states have pushed forward with little to no interference from the federal government.  Colorado has paved the way by showing that legalization can, at the very least, bring in much-needed revenue via taxes.  By being aware of the possible effects of legalization, state lawmakers and citizens can be better informed to make decisions for their own states.  Additionally, the federal government can look to Colorado as an experiment that it can then learn from to better decide whether to make any changes at the federal level.  Given that Pew polls show around two thirds of Americans favor legalization, a close look at the consequences of such a policy is warranted.

December 16, 2021 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Taxation information and issues | Permalink | Comments (0)

Tuesday, December 14, 2021

Latest issue of JNCI Monographs with multiple articles on cannabis policy and research

M_jncmon_2021_58coverThe December 2021 issue of JNCI Monographs has a series of papers stemming from a symposium last year organized by the National Cancer Institute exploring cannabis policy, public health and research. Here are just some of the great-looking articles in the issue:

"The National Cancer Institute and Cannabis and Cannabinoids Research"

"Cannabis Policy in the United States: Implications for Public Health"

"Nonmedical Cannabis Use: Patterns and Correlates of Use, Exposure, and Harm, and Cancer Risk"

"Cannabis and the Cancer Patient"

"Challenges for Clinical Cannabis and Cannabinoid Research in the United States"

Here is a short excerpt from the first of these article:

Recent survey evidence suggests that one-quarter of cancer patients have used cannabis, often to manage common cancer symptoms or treatment side effects, such as anorexia, nausea, and pain, and there is some evidence of ameliorative effects. A majority of US oncologists engage in discussions about cannabis use with patients, and although almost one-half of them recommend it clinically, few oncologists feel sufficiently informed to make recommendations to their patients regarding the use of cannabis. In general, studies that replicate the effects of cannabis and its constituents are needed as are improvements in research quality and surveillance capacity.

December 14, 2021 in History of Marijuana Laws in the United States, Medical community perspectives | Permalink | Comments (0)

Saturday, December 11, 2021

Yet another example of mass past marijuana convictions not addressed by petition-based record relief effort

Given my long-standing interest in marijuana record relief efforts – see, e.g., my early article, "Leveraging Marijuana Reform to Enhance Expungement Practices" and a later piece, "Ensuring Marijuana Reform Is Effective Criminal Justice Reform" –  I was intrigued but not really surprised by this recent AP article out of North Dakota.   The full headline of the article highlights its themes: "North Dakotans Seeking Pot Pardons Slow to a 'Dwindle': Only a few of the tens of thousands of people who may be eligible have taken advantage of a policy change that lets those with low-level marijuana convictions in North Dakota petition have their records wiped clean."  Here are more of the details (with a little of my emphasis added):

Records show only 51 of the 70 people who applied have been granted pardons in the two years the policy has been in place.  Another three people, who were recommended for pardons last month by an advisory board, are awaiting approval by the governor.

Republican Gov. Doug Burgum and Attorney General Wayne Stenehjem both support the change, which brings North Dakota in line with some other states and cities that have been trying to fix problems that such past convictions have caused for people trying to find jobs and housing.  Stenehjem estimated as many as 175,000 marijuana convictions over several decades could be eligible for pardons under the policy....

North Dakota already had allowed people to apply for pardons to remove marijuana-related offenses from their records, but the process was burdensome.  While the new policy doesn’t go as far as other states that automatically dismiss or pardon convictions, it does involve an application process.

People applying for pardons must complete a 1½-page form that law enforcement reviews before placing a case on the pardon board’s agenda.  It costs nothing to apply.

Burgum's spokesman said the number of applicants seeking to have their pot convictions erased has “slowed to a dwindle.”  Only eight applications were received last month in the fourth round of the summary pardons.

I find this story especially interesting because North Dakota is one of the our smallest states (by population, only around 600,000 for decades until recently climbing to nearly 800,000) and also one of our whitest states (90-95% white with Native Americans as the largest minority group).  And yet still, the state AG estimates "as many as 175,000 marijuana convictions over several decades," and these are apparently convictions, not just arrests.  These data highlight how marijuana prohibition has contributed to mass criminalization everywhere and for everyone in the US, not just in urban areas and not just for minority populations.

Even more discouraging, of course, is that over a few years only a few dozen of the tens of thousands with these convictions have the knowledge and ability to fill out only a "1½-page form" to potentially secure a pardon.  Concerns about low "uptake" for petition-based expungement systems often rightly stress how complicated and costly it can be for a person to figure out whether certain records are eligible for  relief and/or to complete the application process (which can have a number of formal and informal costs).  But here there seem to be few complications and minimal costs, and yet still apparently less than perhaps .05% of those potentially eligible have sought relief.  Sigh.

December 11, 2021 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Tuesday, December 7, 2021

"Fair and Square: How to Effectively Incorporate Social Equity Into Cannabis Laws and Regulations"

The title of this post is the title of this notable new paper available via SSRN and authored by Shaleen Title.  (Shaleen Title served as one of five inaugural commissioners of the Massachusetts Cannabis Control Commission from 2017 to 2020, and this year has been serving as the Distinguished Cannabis Policy Practitioner in Residence at the Drug Enforcement and Policy Center.)  Here is the abstract for this paper:

As states and local jurisdictions implement new laws legalizing marijuana, many have charged regulators with the worthy goal of remedying the injustices of the drug war, a concept known as social equity.  Broadly, social equity falls into a few core policy categories: criminal justice reforms, including automatic expungement of past cannabis offenses; reinvesting a percentage of marijuana tax revenue into the most impacted communities; and — the focus of this paper — creating a cohesive cannabis industry licensing framework with special considerations for people affected by the war on drugs.

So far, no program has successfully achieved its social equity goals as originally envisioned.  But as each new state studies and incorporates the experiences of those that previously tried, we are seeing remarkable progress with respect to the involvement, inclusion, and support of people who have experienced disproportionate harm from prohibition.  This paper is designed to equip readers with practical advice about how to implement social equity.  There are three large policy areas regulators have to address as they begin to design a comprehensive social equity policy for their state’s cannabis industry: policies around what makes an individual or an entity a social equity applicant, policies around what benefits a social equity applicant should have access to, and licensing policies that will support your community’s social equity goals.

December 7, 2021 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, December 1, 2021

"Forty Greenhouses and a Dispenser’s License: Affirmative Action and Racial Equity in Marijuana Licensing"

The title of this post is the title of this paper recently posted to SSRN and authored by Eleni Christofides, a recent graduate of The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

Federal and state attempts at creating racially equitable marijuana industries can go much farther to treat the harms of the War on Drugs.  If legislatures, or creators of ballot initiatives, seek “race-neutral” policies, they should boost the ability of people with criminal system involvement to have a place in the industry, and to make good on the often-unrealized promise of expungement.  However, the most effective strategy is to confront the racist impact of the War on Drugs head-on, and acknowledge the significance of race in creating a legal industry.  If laws fail to do so, then as more states pass medical programs or even medical and recreational-combined programs, their data collection shows and will show a lack of diversity in the industry.  The silver lining is that the trend may allow future affirmative action schemes to have the evidence to defeat a strict scrutiny challenge.  Though frustrating, waiting on legalization that builds more socially and racially equitable systems for the industry is worthwhile. Returning to an industry that has already taken off, primarily with white-owned-and-controlled companies, and trying to infuse racial and social equity, is not a promising strategy to accomplish real and meaningful change.

December 1, 2021 in History of Marijuana Laws in the United States, Race, Gender and Class Issues | Permalink | Comments (0)

Monday, November 29, 2021

NORML releases online "2021 Legislative Report" detailing "50 laws liberalizing marijuana policies in more than 25 states"

Safe_imageVia this Facebook posting, NORML noted its new legislative report detailed that "lawmakers in 2021 enacted over 50 laws liberalizing marijuana policies in more than 25 states."  This online report provides all the details and includes these introductory passages:

2021 was a significant year for marijuana policy reform. Among the most significant developments, legislatures in five states enacted laws legalizing adult-use marijuana possession and regulating retail cannabis markets.  This marks a change from past years, when similar laws were primarily enacted via citizens’ initiatives, not by legislative action. In total, 18 states — comprising nearly one-half of the US population — now have laws on the books regulating adult-use marijuana production and retail sales.

Many states also took actions facilitating the expungement or sealing of past marijuana convictions. Such provisions are now generally part and parcel of any adult-use legalization law. In all, state officials have vacated over 2.2 million marijuana convictions in recent months.

With respect to medical cannabis policies, numerous legislatures took steps in 2021 to expand patients’ access to marijuana products.  These actions included expanding the pool of patients eligible for medical cannabis, expanding the number of licensed providers, and easing pathways for patients to obtain a medical marijuana recommendation.  Currently, 36 states regulate medical cannabis distribution to qualifying patients.

These legislative actions reflect the reality that the majority of the public supports meaningful marijuana reforms.  According to recent polling data, nearly seven in ten Americans, including majorities of all major subgroups by gender, age, income and education, and including majorities of Democrats, Independents, and Republicans, believe that the use of marijuana should be made legal.  Only eight percent of adults still favor its continued criminalization.

Public and political support for these legislative changes in marijuana laws will continue growing in 2022 and beyond.  As we look ahead to next year’s legislative session, we expect to see lawmakers advance with many of the same issues in other states, and we also expect voters in several jurisdictions to decide on citizen-initiated ballot measures next November.

November 29, 2021 in History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, November 18, 2021

Highlighting the persistent Democratic divide over federal marijuana reform

Those who follow happenings inside the Beltway know that the primary roadblock to federal marijuana reform right now is the debate over whether to make smaller reforms (like the SAFE Banking bill) or to go for a more comprehensive approach to reform.  This lengthy new Washington Post piece, headlined "Democratic divide puts congressional action on marijuana in doubt," effectively review the state of this debate as of mid-November 2021.  I recommend the full piece, and here is how it gets started:

A split on Capitol Hill over marijuana policy has lawmakers confronting the possibility that they could again fail to pass any meaningful changes to the federal prohibition of cannabis this Congress, even as polls show vast majorities of Americans support at least partial legalization of the drug.

The clash, on one level, follows familiar contours for Washington policymaking: A narrower measure with significant bipartisan support — one that would make it easier for banks to do business with legitimate cannabis firms in states where marijuana is legal — is in limbo while a smaller group of lawmakers pushes for a much broader bill.

But it has also become infused with questions of racial equity and political competence that have pitted key Democrats against each other as they seek a way to roll back federal marijuana laws that have gone largely unchanged since the height of the War on Drugs in the 1980s and 1990s.

The conflict has come to a head in recent weeks after a push by Democratic and Republican lawmakers to attach the narrower banking legislation to the must-pass annual defense policy bill, which would ensure its passage in the coming months.  The bill’s advocates say it would offer a substantial step toward legitimizing and rationalizing the cannabis industry in the 47 states that have moved to at least partially legalize marijuana — allowing businesses to move away from risky cash-only operations.

That push has hit a roadblock in the Senate, however, where Majority Leader Charles E. Schumer (D-N.Y.) has sided with Sens. Cory Booker (D-N.J.) and Ron Wyden (D-N.J.), who are seeking to assemble a comprehensive bill that would federally decriminalize the drug, tax it and potentially expunge the criminal records of those previously convicted of having bought or sold it.  Passing the narrower bill, they argue, would make passing their broader bill more difficult....

November 18, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)

"How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition"

The title of this post is the title of this new essay that I had the pleasure of co-authoring with my colleague Alex Fraga. The forthcoming publication in now up on SSRN, and here is part of its abstract:

Modern state medical marijuana laws date back to 1996, when Californians approved the first statewide medical marijuana legalization law via ballot measure; Colorado and Washington voters passed the first ballot initiatives legalizing marijuana for adult use in 2012.  By summer 2021, a total of 36 states and 4 U.S. territories had legalized the medical use of marijuana and 18 states, two territories and the District of Columbia had legalized adult use of marijuana.

Over this quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court and has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses.  Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

November 18, 2021 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)

Monday, November 15, 2021

Some early coverage of big new federal GOP bill, the States Reform Act, to legalize marijuana

Congress-legalization-billsToday, Representative Nancy Mace (R-SC) unveiled a new GOP-led bill to legalize marijuana at the federal level.  The States Reform Act (available here), which runs 131 pages, is cosponsored by Representatives Tom McClintock (R-CA), Don Young (R-AK), Brian Mast (R-FL) and Peter Meijer (R-MI).

My initial sense is that this bill does not have a great chance of passage anytime soon, but it still ought to be considered a big moment in the broad modern story of marijuana reform.  And it is understandably getting a lot of press.  Here is a sample:

From the AP, "GOP Rep. Mace’s bill would federally decriminalize marijuana"

From Forbes, "Representative Nancy Mace Introduces Bill To End Federal Cannabis Prohibition"

From Insider, "Rep. Nancy Mace says her GOP-led cannabis legalization bill would be 'a real win-win' for bipartisan marijuana reform in the US"

From Marijuana Moment, "Republican Lawmakers File Bill To Tax And Regulate Marijuana As Alternative To Democratic Proposals"

From MJBizDaily, "South Carolina Republican reveals marijuana legalization bill she’ll introduce in Congress"

From Reason, "Frequently asked questions about the States Reform Act, a proposed marijuana bill"

November 15, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Monday, November 8, 2021

Full Policy Brief version of "New Market Entrants and Uncertain Drug Policy in the United States"

Regular readers are familiar with my regular posts highlighting papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center.  I am excited to now be able to highlight another version of one of these papers resulting from DEPC's partnership with the Reason Foundation to turn student work into extended policy briefs.  Nathaniel Wilson, a student at The Ohio State University Moritz College of Law,  has this new full policy brief completed under the full title "New Market Entrants and Uncertain Drug Policy in the United States:  Kratom and Delta-8 THC Illustrate Tradeoffs."   Here is part of the brief's introduction:

This brief focuses on two substances that ... are each regularly sold to consumers across the country and are gaining in popularity, especially among younger demographics. Delta-8 THC is a relatively new phenomenon that has been introduced into consumer markets across the country, though it has been a known derivative of the cannabis plant for decades.  The brief will discuss the legality of delta-8 THC, including the significant role of the 2018 Farm Bill, in this analysis.  Additionally, it examines whether or not delta-8 THC is truly legal at the federal level today and provides a forward-looking analysis as to any potential changes that are likely to come in the future.  This brief then explores concerns that a business has to contend with if it wants to manufacture and sell delta-8 products, as well as the policy considerations for regulators who want to focus their sights on these particular products.  After discussing delta-8, this brief turns to kratom, a substance similarly besieged by incoherent government policy as it gets regularly sold to consumers across the country.  Kratom, which is marketed as an herbal supplement, is another substance that has been around for a long time but has seen a recent rise in interest for its potential recreational and therapeutic applications.  As with delta-8, this brief discusses the legal environment surrounding kratom, as well as the policy considerations that must factor into an effective regulatory scheme for this particular substance. The concluding discussion forges the overall approach that should be taken when dealing with new market entrants in these “underground” markets.

November 8, 2021 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Sunday, October 17, 2021

Is marijuana legalization likely to be a staple of all major Democratic campaigns in 2022?

The question in the title of this post is prompted by this new Hill piece headlined "Crist says as Florida governor he would legalize marijuana, expunge criminal records."  Here are excerpts:

Rep. Charlie Crist (D-Fla.) on Thursday said that he would expunge criminal records of those facing certain marijuana-related charges and legalize the drug if he is elected the governor of Florida.  “Let me be clear: If I’m elected governor, I will legalize marijuana in the Sunshine State,” Crist said in a video posted on his Twitter on Thursday. “This is the first part of the Crist contract with Florida.”

Crist, who is running for the Democratic nomination to take on Gov. Ron DeSantis (R) in 2022, discussed different elements of his gubernatorial platform focused on racial equity in the state, including expunging criminal records for those who have received marijuana-related charges, specifically third-degree felonies and misdemeanors, the Tampa Bay Times reported.

The former Florida governor and Senate hopeful also said that he was in favor of decentralizing the marijuana industry, allowing people to personally grow marijuana plants.  He noted that money made through marijuana sales would fund things such as drug treatment programs and police agencies, according to the news outlet.

Crist, who was a Republican while he was in the governor's mansion from 2007 to 2011, acknowledged that his stance, among others, had changed on marijuana use.  As governor, he had signed harsh anti-marijuana legislation, which included targeting growing the plant.

His comments were criticized over Twitter by Democratic opponent Nikki Fried, who is also running to take on DeSantis. The state Agriculture commissioner, who has been previously supportive of legalizing marijuana and was a former marijuana lobbyist, according to Tallahassee Reports, accused him of imitating her political stance.

“Imitation is flattery, but records are records. People went to jail because Republicans like @CharlieCrist supported and enforced racist marijuana crime bills. Glad he's changed his mind, but none of those people get those years back. Legalize marijuana. #SomethingNew,” Fried tweeted.

Crist last year voted to end marijuana from being prohibited and criminalized federally. “We know that people across racial and income levels use marijuana at the same rate.  And yet, for decades, it's been poor, Black, and/or Hispanic folks targeted for prison on marijuana charges,” Crist said in a statement in December.  “That tells me that marijuana has been legal now for a while if you had the right skin tone or the right paycheck.”

I surmise that all major Democratic candidates have finally figured out that marijuana reform is a popular position. It will be interesting to watch if this issue could become significant debate topic is red-leaning swing states like Florida and Ohio that have big 2022 elections. I am inclined to believe this topic still is more fringe than fundamental in broader political discourse, but even topics that only move the electorate a little bit could prove consequential sometimes.

October 17, 2021 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, October 8, 2021

Senators Booker and Warren call upon DOJ to "decriminalize cannabis using its existing authority"

As reported here, two notable US senators "are urging Attorney General Merrick Garland to decriminalize marijuana on his own" by "asking Garland and Department of Health and Human Services Secretary Xavier Becerra to use powers granted them under the Controlled Substances Act to deschedule — or decriminalize — marijuana at the federal level." The letter to this effect from the desk of Senator Elizabeth Warren and joined by Senator Cory Booker is available at this link, and it starts this way:

We write to urge the Department of Justice (DOJ) to decriminalize cannabis using its existing authority to remove the drug from the Federal controlled substances list. Under the Controlled Substances Act of 1970 (CSA), the Attorney General can remove a substance from the CSA’s list, in consultation with the Secretary of Health and Human Services (HHS).  Decriminalizing cannabis at the federal level via this descheduling process would allow states to regulate cannabis as they see fit, begin to remedy the harm caused by decades of racial disparities in enforcement of cannabis laws, and facilitate valuable medical research.  While Congress works to pass comprehensive cannabis reform, you can act now to decriminalize cannabis.

The letter goes on to explains the DOJ descheduling process this way:

The executive branch has the authority to initiate the process of cannabis descheduling.  The CSA empowers the Attorney General to initiate proceedings to reschedule or deschedule a drug, either individually or at the request of the HHS Secretary or another interested party.  The Attorney General then seeks a scientific and medical evaluation from the HHS Secretary, including the Secretary’s recommendations as to the appropriate scheduling for the drug or whether the drug should be descheduled.  If the Secretary recommends descheduling a drug, that recommendation is binding on the Attorney General.  However, if the Secretary recommends retaining a drug in the same schedule or moving it to a different schedule, that recommendation is not binding and the Attorney General may still choose to initiate a rulemaking procedure to deschedule or reschedule the drug.

October 8, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, September 13, 2021

"Targeted Marijuana Law Enforcement in Los Angeles, 1914-1950"

The title of this post is the title of this notable new paper authored by Sarah Brady Siff now available via SSRN. Here is its abstract:

Marijuana was illegal to possess or sell in California for 103 years.  The state first banned it in 1913, grouping it with opiates and cocaine on a list of prohibited vice drugs adopted six years earlier, meaning that it was subject to the same penalties as these other, far more dangerous, drugs until 1961.  Initially framed as a “Mexican” drug, marijuana prohibition enforcement began on the periphery of Los Angeles in older Latino neighborhoods as well as in agricultural outposts where immigrants lived, worked, and gardened.  Later this policing turned toward the city center, targeting the segregated section of Central Avenue with its jazz musicians and its multiracial nightlife, as well as actors and musicians in nearby Hollywood.  By 1950, Los Angeles-area police were arresting more people for the possession or sale of marijuana than for heroin, other opiates, and cocaine combined.  Mexican, Mexican American, and Black citizens were the targets of this enforcement in sharp disproportion to their presence there.

September 13, 2021 in History of Marijuana Laws in the United States | Permalink | Comments (0)

Monday, August 23, 2021

"Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana"

The title of this post is the title of this notable new paper now available on SSRN authored by Robert Mikos and Scott Bloomberg.  Here is its abstract:

Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets.  In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana.  However, the states’ reprieve from the doctrine may soon come to an end.  Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate.

This Article serves as a wake-up call.  It provides the most extensive analysis to date of the disruptions the DCC could cause for lawmakers and the marijuana industry. Among other things, the doctrine could spawn a race to the bottom among states as they compete for a newly mobile marijuana industry, undermine state efforts to boost participation by minorities in the legal marijuana industry, and abruptly make obsolete investments firms have made in existing state-based marijuana markets.  But the Article also devises a novel solution to these problems.  Taking a page from federal statutes designed to preserve state control over other markets, it shows how Congress could pursue legalization without disruption.  Namely, Congress could suspend the DCC and thereby give state lawmakers and marijuana businesses time to prepare for the emergence of a national marijuana market.  The Article also shows how Congress could make the suspension temporary to allay any concerns over authorizing state protectionism in the marijuana market.

August 23, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Sunday, August 15, 2021

Noting a dozen states that may be voting on marijuana and other drug reforms in 2020

20200803-160721-ballot with pot leafKyle Jaeger at Marijuana Moment has this helpful article about developing drug reform ballot initiatives under the headline "These States Could Have Marijuana And Psychedelics Legalization On The Ballot In 2022."  I recommend the full piece, and here are the highlights (with links from the original):

Marijuana reform has advanced in numerous state legislatures in the first half of 2021, with lawmakers enacting four new legalization laws so far this year. Now, activists in roughly a dozen states are moving to put cannabis legalization proposals directly before voters in 2022.

Across the country, advocates are in the early stages of drafting proposals, collecting signatures and engaging in public outreach to build support for medical and recreational cannabis legalization measures that they hope to see voted on next year. In at least one state, activists are working to qualify a measure to legalize psychedelic mushrooms for next November’s ballot. And in others, lawmakers may take it upon themselves to put cannabis referendums up for the general election without the need for citizen petitions....

Here’s a breakdown of where cannabis legalization and other drug policy reforms could be decided by voters in 2022, as well as a look at a handful of local efforts to enact marijuana policy changes via municipal ballot initiatives this year.

Arkansas

Arkansas activists are collecting signatures to place adult-use marijuana legalization on the state’s 2022 ballot....

California

California psychedelics activists recently filed a petition for the 2022 ballot to make the state the first in the nation to legalize psilocybin mushrooms for any use....

Idaho

Advocates in Idaho are working to advance separate measures to legalize possession of recreational marijuana and to create a system of legal medical cannabis sales....

Maryland

Maryland’s House speaker recently pledged that lawmakers will pass legislation to put the question of marijuana legalization before voters as a referendum on the 2022 ballot....

Mississippi

No initiatives have been filed for the 2022 ballot so far, but advocates say it’s possible a campaign could launch if the legislature fails to enact medical cannabis legalization during a special session this year or ends up passing a bill that has less robust patient protections than they want....

Missouri

A group of Missouri marijuana activists recently a number of separate initiatives to put marijuana reform on the state’s 2022 ballot, a move that comes as other advocacy groups are preparing separate efforts to collect signatures for cannabis ballot petitions of their own....

Nebraska

Nebraska marijuana activists are gearing up for a “mass scale” campaign to put medical cannabis legalization on the state’s 2022 ballot after the legislature failed to pass a bill to enact the reform this session....

North Dakota

After a House-passed bill to legalize marijuana in North Dakota was rejected by the Senate in March, some senators hatched a plan to advance the issue by referring it to voters on the 2022 ballot....

Ohio

Ohio marijuana activists recently unveiled a new plan to legalize cannabis in the state via the ballot as lawmakers pursue separate reform legislation....

Oklahoma

Oklahoma advocates are pushing two separate initiatives to legalize marijuana for adult use and overhaul the state’s existing medical cannabis program....

South Dakota

South Dakota activists recently filed four separate legalization measures with the state Legislative Research Council — the first step toward putting the issue before voters next year if the state Supreme Court upholds a lower court ruling that overturned the legal cannabis measure that voters approved last November....

Wyoming

Activists are seeking to put separate measures to legalize medical cannabis and decriminalize adult-use marijuana before voters next year — and the secretary of state’s office recently approved the latest version of their proposed ballot language, freeing up advocates to gather a requisite 100 signatures per initiative in order to proceed to the next step.

August 15, 2021 in History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (2)

Thursday, July 29, 2021

Lots of notable midsummer marijuana reform headlines

Poster (1)Decades ago before modern marijuana reforms became mainstream, the stories and headlines linked below might have seemed like a midsummer night's dream.  But now, reform stories are common every time of the year, and these midsummer stories are almost par for the course.  But they still caught my eye and seemed blog-worthy for various reasons:

From the AP, "High profile: Cannabis chemical delta-8 gains fans, scrutiny"

From Courthouse News Service, "You can smoke it but you can’t study it: Cannabis researchers get creative"

From Forbes, "Billionaire Charles Koch On Why Cannabis Should Be Legal"

From FoxNews, "Geraldo calls for legalizing marijuana 'in every corner of this country' to curb fentanyl overdoses"

From GQ, "How American Attitudes About Drugs Changed Overnight"

From High Times, "Study Finds Cannabis Use Not Related to Loss of Motivation"

From Marijuana Moment, "Senators Are Having Marijuana ‘Conversations’ With White House To Get Biden On Board With Legalization, Booker Says"

From Marijuana Moment, "House Approves Marijuana Banking, Employment And D.C. Sales Provisions In Large-Scale Spending Bill"

From MJBiz Daily, "Boom or bust? Marijuana execs see more sales gains as COVID-19 lockdowns ease"

From MJBix Daily, "Proposed tax rates in Schumer’s marijuana reform bill elicit ‘sticker shock’"

From the New York Post, "More than 3,500 marijuana-related warrants tossed by Brooklyn DA"

From the Washington Post, "Medical marijuana saved me and other veterans. Why does the military punish us for it?"

 

July 29, 2021 in History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)