Wednesday, March 11, 2020
The title of this post is the title of this short piece just posted to SSRN authored by Heather Razook concerning a case currently pending before the Ohio Supreme Court. Here is its abstract:
In 2019, the first and third California Appellate courts both decided cases examining the same issue: whether proposition 64 decriminalized marijuana possession in state correctional institutions. People v. Perry, from the first district, held that Prop 64 did not decriminalize and People v. Raybon, from the third district, held that Prop did decriminalize marijuana possession in correctional institutions. The cases presented two exceptionally similar arguments with opposite outcomes. This paper compares those arguments and predicts an outcome for People v. Raybon that is currently up for review in the California Supreme Court.
Tuesday, March 10, 2020
Coalition urges Prez Trump to "immediately being the process of granting clemency to those serving federal time for non-violent cannabis offenses"
As reported here by Marijuana Moment, a "coalition of criminal justice reform advocates — including several Republican officials and a major basketball star — recently delivered a letter to President Trump, imploring him to grant pardons or commutations to people serving time in federal prison for non-violent marijuana offenses." Here is more:
Weldon Angelos, who himself was convicted over cannabis and handed a mandatory minimum sentence before a court cut his sentence and released him, led the effort. He’s since become a reform advocate, and he rallied support for the new letter from a wide range of politicians, activists, entertainment figures and legal experts.
“On behalf of cannabis offenders serving federal prison sentences, their loved ones, and supporters across the country, we strongly urge you to immediately being the process of granting clemency to those serving federal time for non-violent cannabis offenses,” the letter, signed by several Republican state lawmakers, a former federal prosecutor, Koch Industries and NBA champion Kevin Garnett, among others, states. “Our nation’s view of cannabis has evolved, and it is indefensible to incarcerate citizens based on the unduly harsh attitudes of past generations.”
The letter, which was delivered to a staffer at the White House late last month, notes that Trump has expressed support for states’ rights to enact their own marijuana programs and it appeals to the president’s desire to accomplish unilaterally what Congress has been unable to do. “We respectfully urge you to begin the process of identifying and granting clemency to those serving federal time for cannabis offenses, particularly those who were prosecuted in states where cannabis is now legal. We stand by to help in any way possible.”
“[W]hile there are a number of proposals being introduced in Congress to finally put an end to cannabis prohibition, they tend to lack any real avenue of relief for those who are serving time for selling cannabis,” it continues. “Given the timidity of this proposed legislation, the gridlock in Congress, and the imperative fo freedom, clemency is the right tool to fix this problem.”
Angelos, who launched the cannabis reform advocacy campaign Mission Green, told Marijuana Moment in a phone interview that while comprehensive cannabis reform is important, the “more urgent need is to at least free those who were following state law or are in states where it’s legal now.”
“I think those ones are a no-brainer and low-hanging fruits that I think the president could take care of immediately,” he said. “Then we can work with Congress to try to have broader solutions to the problems than just clemency. Clemency can only do so much.”
Among the more than 50 signatories are two individuals whose sentences Trump previously commuted, along with representatives of #cut50, the Marijuana Policy Project (MPP), Terra Tech Corp and Law Enforcement Action Partnership. Actor Danny Trejo and the New Haven police chief also signed the request.
Saturday, March 7, 2020
The title of this post is the title of this notable new research by multiple authors appearing in the American Journal of Preventive Medicine. Here is its abstract:
The objective of this study is to assess the changes in rates of juvenile cannabis criminal allegations and racial disparities in Oregon after legalization of cannabis (July 2015) for adults.
This study included all allegations for cannabis-related offenses that occurred from January 2012 to September 2018 in Oregon. Negative binomial regression models were used to examine monthly cannabis allegation rates over time, and tested differences between youth of color and white youth, adjusting for age, gender, and month the allegation occurred. Analysis was conducted in January–March 2019.
Cannabis allegation rates increased 28% among all youth and 32% among cannabis-using youth after legalization. Rates of allegations were highest for American Indian/Alaska Native and black youth. Rates for black youth were double that of whites before legalization, and this disparity decreased after legalization. For American Indian/Alaska Native youth, rates were higher than whites before legalization, and this disparity remained unchanged.
Adult cannabis legalization in Oregon was associated with increased juvenile cannabis allegations; increases are not explained by changes in underage cannabis use. Relative disparities decreased for black youth but remained unchanged for American Indian/Alaska Native youth. Changing regulations following adult cannabis legalization could have unintended negative impacts on youth.
The paper cites to this notable similar work published last year in JAMA Pediatrics titled "Youth and Adult Arrests for Cannabis Possession After Decriminalization and Legalization of Cannabis." That study, looking at arrest data through 2016, found that "arrest rates of youths significantly decreased in states that decriminalized cannabis possession for everyone but did not decrease in states that legalized adult use."
Importantly, these studies are looking at arrest data only to and through a few years after state marijuana reforms. I know Colorado experiences an interesting spike in juvenile marijuana arrests the year right after dispensaries opened, but then there was a notable decline in arrests thereafter. These are important numbers, but I think we really need to keep examining them over a greater time period before reaching any firm conclusions about enforcement patterns.
Friday, March 6, 2020
Eager to include discussion of notable tax allocation provision in new Ohio marijuana reform initiative as part of "A Fresh Take on Cannabis Regulation"
As highlighted in prior posts here and here, a serious effort to get a serious marijuana legalization initiative to Ohio voters in November 2020 is in the works. Though this Ohio 2020 ballot initiative, titled "An Amendment to Regulate Marijuana Like Alcohol," still has an uphill climb to even make it to the ballot, I will likely be discussing some of its mostinteresting provisions in a variety of fora in the months ahead. And today the forum will be at the University of Cincinnati where I have the honor of participating in the College of Law's Corporate Law Symposium titled "A Fresh Take on Cannabis Regulation."
On my panel today, I plan to discuss some of the topics I first covered in my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," exploring ways that marijuana reform intersects with criminal justice concerns. In that article, among other points, I urge jurisdictions to earmark a portion of marijuana revenues to improving the criminal justice system and I specifically advocate for the creation of a new criminal justice institution, which I call a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to help remedy some of the harms of the war on drugs.
Against that backdrop, I was especially intrigued by an interesting provision for taxing and spending the tax revenue appearing in new Ohio marijuana legalization ballot initiative. Specifically, Section 12(E)(5) of the proposed Ohio constitutional amendment provides:
The General Assembly may enact a special sales tax to be levied upon marijuana and marijuana products sold at retail marijuana stores or other entities that may be authorized to sell marijuana or marijuana products to consumers and, if such a sales tax is enacted, shall direct the Department to establish procedures for the collection of all taxes levied. Provided, at least one-quarter of the revenue raised from any such sales tax shall be placed in a special fund and used to establish a Commission on Expungement, Criminal Justice, Community Investment, and Cannabis Industry Equity and Diversity, which shall provide recommendations regarding the allocation of the remaining revenue in the fund; at least one-half of the revenue raised from any such sales tax shall be allocated to the State Local Government Fund or any successor fund dedicated to a similar purpose; and at least one-tenth of the revenue raised from any such sales tax shall be returned to the municipal corporations or townships in which the retail sales occurred in proportional amounts based upon the sales taxes remitted.
Though I think the the Commission on Expungement, Criminal Justice, Community Investment, and Cannabis Industry Equity and Diversity (CECJCICIED?) is a very clumsy name, I this it is a very good idea and I am quite excited to see a marijuana reform proposal that includes a means for building needed criminal justice infrastructure with the proceeds of marijuana taxes.
- Ballot initiative pursuing 2020 vote on full marijuana legalization in Ohio now in the works
- Ohio 2020 ballot initiative, "An Amendment to Regulate Marijuana Like Alcohol," officially filed
March 6, 2020 in Criminal justice developments and reforms, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Wednesday, March 4, 2020
Noting how blanket federal prohibition serves to thwart continued progress of medical marijuana reforms
This new Roll Call article, headlined "States turn to unenforced federal law to slow medical marijuana legalization," effectively reviews how federal prohibition still serves to impact medical marijuana reforms efforts in a number of states. I recommend the lengthy article in full, and here are excerpts:
Since 2014, Congress has protected patients and cannabis programs from federal marijuana prosecutions in states that allow it for medical use. Medical marijuana’s unique legal status involves a little-known provision called the Rohrabacher-Farr amendment that Congress renews every year in spending laws. It says the Justice Department cannot use federal funds to prevent states from implementing their own medical marijuana laws.
Yet marijuana’s continued status as a Schedule I substance — the most severe drug category — remains fodder for those opposed to legalizing medical marijuana in other parts of the country.... In states considering the issue this year, including Alabama and Tennessee, opponents continue to cite the drug’s Schedule I status.
In Tennessee, House Speaker Cameron Sexton, a Republican, said in January that he won’t take up medical marijuana because “it’s against federal law.” A commission created by the Alabama Legislature to advise lawmakers on cannabis policy last year recommended that the state adopt a medical marijuana plan this session, and it published draft legislation to do so. But opponents on the commission said the top reason for their objections was “the fact that marijuana remains a Class I Controlled Substance under state and federal law.”
Alabama Attorney General Steve Marshall inflamed debate further in January when he wrote a letter in opposition to legislators. “State laws that allow any use of marijuana, medical or recreational, are in direct conflict with duly enacted and clearly constitutional law,” Marshall wrote. “Thus, state marijuana statutes enacted in violation of the law are damaging to the law itself.”...
Such arguments underscore why Congress is considering a number of bills to deschedule marijuana entirely or reschedule it in order to better study it. They face long odds in the Senate, which has yet to move on a House-passed bill that is limited to offering protections for banks that do business with marijuana companies.
But advocates for legalization say federal prohibition is a red herring, and that states shouldn’t have to comply with a federal drug law the Drug Enforcement Administration is barred from enforcing. “States are authorizing conduct that is prohibited under federal law, so at first blush, I can see how this could be confusing and surprising, but at this point, two-thirds of the country have implemented comprehensive medical marijuanalaws,” says Karen O’Keefe, state policy director for the Marijuana Policy Project, a pro-legalization advocacy group that lobbied for the Rohrabacher-Farr amendment. The rider halted most raids involving medical marijuana in states with legalization.
The patients and providers who cultivate, process and dispense the cannabis these patients rely on in these states for the treatment of debilitating illness do not have to fear federal charges as long as they are in compliance with state law, says Sean Khalepari, regulatory affairs coordinator for the pro-medical marijuana group Americans for Safe Access.
But the unusual nature of the provision is not well understood, some say.... Although the amendment serves as a shield against federal prosecution, “I think it can be misunderstood that this rider does not in and of itself legalize medicinal marijuana at the federal level,” says Jeffrey Vanderslice, who worked as an aide to Rohrabacher in 2014. Since the Justice Department technically retains the ability to prosecute medical marijuana — even in states that have legalized it, if a business or individual doesn’t comply with state law — advocates are hoping for more certainty on the federal level eventually.
Meanwhile, the Trump administration’s interpretations and actions have contributed to the confusion. In 2018, the administration rescinded guidance by the Obama administration known as the Cole memorandum, which directed Justice to deprioritize prosecuting state-legal marijuana businesses. Trump’s reversal stoked worry and confusion among supporters of legalization.
The office of the attorney general has since turned over from Jeff Sessions, a severe critic of marijuana, to William Barr. Barr said during a Senate hearing in 2019 that he operates under the Cole memo, but leaves significant discretion to U.S. attorneys in each state. Meanwhile, the White House has sought the repeal of Rohrabacher-Farr in each of its budgets, including in Trump’s fiscal 2021 budget proposal. Congress has always bucked that recommendation.
In the midst of broader discussions of issues surrounding the full legalization of marijuana in various states, I asked my students to give some particularized attention to tax issues. Tax issues in the marijuana space strike me as especially interesting because they present (a) value issues of what goals that tax here is designed to achieve (e.g., raise revenue vs. impact consumption patterns), (b) practical issues about how best to impose a tax (e.g., sales v. excise; weight v. potency of products), and (c) policy issues about whether and how to earmark tax revenues (e.g., for certain infrastructure, social equity, public health).
Against the backdrop of these big issues, and as my students do some independent research on tax matters, I thought I might here round up some relatively newer resources on tax matters. These materials cover only a very small slice of important marijuana tax issues, but I hope it still might prove useful to readers as well as to my students:
From Illinois Policy in January 2020, "Among Nation’s Highest, Could Keep Black Market Thriving"
From the Federation of Tax Administrators from various sources in December 2019, "Status of State Taxation/Sales of Marijuana"
From Pew Trusts in August 2019, "Forecasts Hazy for State Marijuana Revenue"
From Tax Foundation in April 2019, "How High Are Taxes on Recreational Marijuana in Your State?"
From the Institute on Taxation & Economic Policy in January 2019, "Taxing Cannabis"
Tuesday, March 3, 2020
As noted in this post, last week news broke that there was in the works a serious attempt to bring a full marijuana legalization initiative to Ohio voters in 2020. This local press piece, headlined "Ohio 2020 recreational marijuana legalization measure filed: 5 things to know," report on that effort and (some of) what we all need to know. Here are excerpts:
The latest effort to legalize marijuana in Ohio stems from frustration with Ohio's nearly four-year-old medical marijuana law. Supporters of the measure include at least two medical marijuana businesses, a medical marijuana patient, a mother of twins with autism – a condition excluded from the program – and advocates for recommending cannabis in place of opioids.
Supporters of the Regulate Marijuana Like Alcohol Amendment turned in the petition summary language and an initial 1,000 signatures to the Ohio attorney general on Monday. This is the first step in a months-long process to qualify for the November ballot. The constitutional amendment would allow adults over age 21 to buy, possess, consume and grow limited amounts of marijuana....
Tom Haren, a Northeast Ohio attorney representing supporters, said there were several catalysts in the medical program that led to the new adult use measure. "If you're a patient in Ohio, it's hard to participate in Ohio's medical marijuana program," said Haren, who has also represented medical marijuana licensees. "We were promised a program that worked." Haren confirmed Pure Ohio Wellness, a cultivator and dispensary operator in Springfield and Dayton, and Galenas, a small-scale grower in Akron, are backing the measure. Haren said other medical marijuana businesses support it but declined to name them on Monday.
The Ohio Medical Cannabis Industry Association, which represents 14 Ohio companies, is not supporting the measure. “We’re focused on the medical program and at this time are not backing a recreational initiative,” association associate director Thomas Rosenberger said.
The purchase and possession limit in the amendment is 1 ounce, with no more than 8 grams of concentrate. Adults could grow up to six plants (limit of three flowering plants) in an enclosed area – home grow is not allowed in the medical marijuana program. The state's nascent medical marijuana program would remain in place, and state officials would have to ensure patients still have access to products.
The amendment wouldn't change laws against driving under the influence of marijuana or employers' rights to prohibit employee marijuana use....
The 118 medical marijuana licensees could operate as recreational businesses on July 1, 2021, according to the amendment. The Ohio Department of Commerce, which oversees medical marijuana growers, processors and testing labs, would also regulate the entire recreational marijuana program.
The agency could issue more licenses, but the number of licenses would be capped until 2026. Retail stores would be capped at about 200. Cultivation would be limited to a total of 1.5 million square feet of growing space among all licensees. For comparison, the state's 19 large-scale and 13 small-scale medical marijuana growers are licensed to cultivate 514,000 square feet.
Local governments could limit the number, location and business hours of marijuana businesses and could ban them altogether. Licenses would be awarded if the applications comply with the rules and regulations; Ohio's medical marijuana business licenses were awarded after a months-long application scoring process....
The amendment doesn't set a tax rate – that would likely violate an anti-monopoly amendment passed by voters in 2015 to block ResponsibleOhio's recreational marijuana measure. Lawmakers could set a special sales tax for recreational marijuana.
Revenue from marijuana would be split several ways:
- 25% to a special fund for a Commission on Expungement, Criminal Justice, Community Investment, and Cannabis Industry Equity and Diversity
- 50% allocated to the state's Local Government Fund
- At least 10% must be returned to municipalities where retail sales occurred, proportional to the amount of sales
Equity in legal cannabis programs refers to ensuring African-Americans and members of other traditionally marginalized groups participate in the industry. African-Americans are nearly four times more likely than whites to be arrested for marijuana possession, according to the ACLU.
Ohio's attempt at equity in the medical marijuana program – awarding 15% of all licenses to minority-owned businesses – was found unconstitutional. The amendment requires the Department of Commerce to conduct a study into whether there has been discrimination in awarding medical marijuana licenses.
The attorney general has 10 days to review the petition language to make sure it's "fair and truthful" summary of the amendment. Most initiatives don't pass the first time. A bipartisan legislative panel led by the Ohio secretary of state will then decide whether the measure is one or more ballot issues. Then, supporters will have to have to collect at least 442,958 valid signatures of Ohio voters, including a certain percent in 44 of Ohio's 88 counties.
To do that before July 1 – the deadline for the November ballot – supporters will likely need to hire paid signature collectors. Recent statewide ballot issue campaigns have spent upwards of $3 million to collect signatures. Haren declined to name investors or sources funding the campaign. "We expect it will be funded by a diverse set of folks including people with licenses as well as folks outside the licensing," Haren said.
The full text of the the ballot initiative, titled "An Amendment to Regulate Marijuana Like Alcohol," is available at this link. Once I get a chance to read the text in full, I suspect I will have a lot more to say about how this proposal seek to make marijuana fully legal in the Buckeye State.
Friday, February 28, 2020
The title of this post is the title of this new paper authored by Robert Greenberg now available via SSRN. Here is its abstract:
The prohibition on immoral trademarks has been steadily eroding as a result of First Amendment litigation at the United States Supreme Court. In light of recent Supreme Court decisions on trademark registrations and free speech, the question then becomes: Is the Lanham Act’s ban on cannabis trademark registrations justifiable in light of the First Amendment in view of these recent cases?
Wednesday, February 26, 2020
Throughout the first part of 2019, I thought it quite likely that there would be at least an attempt to bring a full marijuana legalization initiative to Ohio voters in 2020. But as 2019 marched forward and as I heard that some Ohio medical marijuana industry players were against such an effort, I concluded that the Buckeye voters were going to have to wait until at least 2022 to weigh in again on recreational marijuana. But, to my surprise, this news broke this week: "Ohio petitioners want to put recreational marijuana on the fall ballot." Here are the basics and some context:
Advocates of adult marijuana use, which includes some licensed Ohio medical marijuana companies, are working on letting citizens vote on recreational marijuana this fall.
But an initiative to bring a referendum before voters this November will face an uphill battle, as it may be challenging to collect the signatures needed by a July deadline to get a measure on this fall's ballot. Presidential elections historically draw the greatest voter turnouts, which is why it makes sense strategically to bring out a marijuana legalization referendum at that time despite the time crunch.
According to the Cincinnati Enquirer, which says it's seen a copy of the petitions, the proposed constitutional amendment would "allow anyone 21 and older to buy, consume and possess up to one ounce of marijuana and grow up to six marijuana plants." Additionally, the Enquirer reported that "Ohio's existing medical marijuana businesses would have first dibs on the recreational market beginning in July 2021. State regulators could decide to issue additional licenses."
Matt Close, executive director of the Ohio Medical Cannabis Industry Association, which includes about 15 members, said the trade group is aware of the petitions but is not backing any legalization measure, at least not yet. "From the association standpoint right now, we are not backing any sort of initiative," Close said. "We are trying to fix the current program."... Nonetheless, while it's currently unclear who's supporting the legalization initiative, sources say the group does include some current Ohio medical marijuana license-holders.
According to the Ohio attorney general's office, a statewide total of 442,958 signatures would be required from at least 44 of the state's 88 counties to file a ballot initiative. That number is particularly high because of the high voter turnout in the last gubernatorial election. Petitions can be tricky because a number of signatures will inevitably be marked invalid. Collecting nearly 443,000 valid signatures means petitioners would likely want to collect double the required number to be safe. If initial petitions are filed with the state later this week, the initiative would have just four months to collect signatures before the July 1 deadline. A successful campaign would probably take several million dollars of financial support.
The last marijuana referendum brought before voters was Issue 3 in 2015. While that would've established a recreational market, the amendment would've provided for only 10 cultivators chosen by backers of the bill, including '90s boy-band singer Nick Lachey of 98 Degrees. Critics, including the state, which worried about losing control of the marijuana situation, framed Issue 3 as a monopoly on the lucrative cultivation business. While not a literal monopoly, the idea was that one group of investors working together would effectively gain unilateral control over who would be allowed to grow medical pot and where in the Buckeye State. That left many marijuana advocates unimpressed.
H.B. 523 followed in 2016 as a way for lawmakers to create a strictly regulated medical marijuana industry after seeing a recreational industry nearly willed into existence. Former Gov. John Kasich eventually signed that bill to little fanfare. Medical marijuana sales in Ohio started in January 2019. The state saw $58.3 million in total sales in that first year, a good deal less than comparable markets in their inaugural years.
I am very much looking forward to seeing the details of the petition, which should be out this week or next, and also seeing of the organizers will have the resources to collect the signatures needed to actually get the petition to the ballot. Stay tuned.
Tuesday, February 25, 2020
I have to give a shout out to CBS News for asking a direct question on marijuana policy and reform, though only three candidates had time during the debate to speak to the issue. This live-time coverage of the debate reports on the (mostly unsurprising) comments from the candidates under the heading "Sanders pushes ahead on legalizing marijuana, but isn't joined by other candidates":
Klobuchar was given the first chance to address the issue of legalizing marijuana. "Well, it is realistic to want to legalize marijuana, I want to do that, too," Klobuchar said.
The Minnesota senator added there also needs to be funding for treatment, so there aren't "repeat customers."
Bloomberg said small amounts of marijuana possession shouldn't be criminalized. And legalization wouldn't be taken away from states that have already legalized the drug. But he admitted there isn't enough research on mairjuana to know how much damage marijuana does, particularly on young minds, so he isn't pushing for full legalization at this point. "Until we know the science, it's just nonsensical to push ahead," Bloomberg said.
Sanders blasted the "horrific war on drugs," and said he would "effectively legalize" marijuana. He also said he wants to move to expunge the records of people with marijuana convictions.
February 25, 2020 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
The title of this post is the title of this new "technical report" from the European Monitoring Centre for Drugs and Drug Addiction and authored by Bryce Pardo, Beau Kilmer and Rosalie Liccardo Pacula of the RAND Europe/RAND Drug Policy Research Center. The full 76-page report is worth reviewing in full, and here are some excerpts from the report's executive summary:
To learn more about these new cannabis regimes and their consequences, the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) commissioned a review of the changes governing recreational cannabis policies in the Americas and an overview of preliminary evaluations. Findings from this research are intended to inform discussions about the development of a framework for monitoring and evaluating policy developments related to cannabis regulatory reform. Key insights include the following.
In addition to the populations of Canada and Uruguay, more than 25 % of the US population lives in states that have passed laws to legalise and regulate cannabis production, sales and possession/use for recreational purposes. In the US, allowing licensed production and sales is often at the discretion of sub-state jurisdictions, which may impose further zoning restrictions on cannabis-related activities. This variation can complicate analyses that attempt to compare legalisation and non-legalisation states, especially when the outcome data are not representative at state level.
The peer-reviewed literature on cannabis legalisation is nascent, and we observe conflicting results depending on which data and methods are used, as well as which implementation dates and policies are considered. It is important to remain sceptical of early studies, especially those that use a simple binary variable to classify legalisation and non-legalisation states. This scepticism should extend to the many studies that fail to account for the existence of robust commercial medical cannabis markets that predate non-medical recreational cannabis laws. Even if a consensus develops on certain outcomes, it does not mean that a relationship will hold over time. Changes in the norms about cannabis use and potentially other substances, the maturation of markets and the power of private businesses (if allowed) could lead to very different outcomes 15 or 25 years after recreational cannabis laws have passed. Evaluations of these changes must be considered an ongoing exercise, not something that should happen in the short term....
One insight arising from the evaluations of the regulatory changes in the Americas to date is the importance of the amount and range of data collected before the change; simply comparing past-month prevalence rates will not tell us much about the effect of the change on health. While US jurisdictions have been moving quickly to legalise the use of cannabis, the data infrastructure for evaluating these changes is limited. In contrast, Canada has made important efforts to field new surveys and create new data collection programmes in anticipation of legal changes. This highlights the importance of any jurisdictions that are considering changes to the regulatory framework for cannabis starting to think about improving data collection and analysis systems in advance.
While there is much to learn from what is happening in the Americas, policy discussions should not be limited to approaches that have been implemented there. There are several regulatory tools (e.g. minimum pricing, potency-based taxes) that receive very little attention — if any — that could have important consequences for health, public safety and/or social equity. It needs to be recognised that all decisions of this nature involve trade-offs and acknowledging that individuals (and governments) have different values and preferences for risk when it comes to cannabis policy is important for productive debates on this controversial topic.
February 25, 2020 in International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Wednesday, February 19, 2020
The title of this post is the title of this amazing conference taking place later this week (February 20-22, 2020) at the Arizona State University Sandra Day O’Connor College of Law in Phoenix, Arizona. I have had the pleasure and honor of working with the amazing team at The Ohio State University's Drug Enforcement and Policy Center (@OSULawDEPC ), along with the also amazing team at ASU's Academy for Justice (@Academy4Justice), to put together an amazing and diverse array of panels and workshops on all sorts of topics relating to the past, present and future of the CSA's development, implementation and enforcement.
The basic agenda for the event can be found at this page, which should alone make you want to register here. I am especially pleased and excited by this list of speakers who are participating. I do not think I could overstate the amount of wisdom and insight on drug laws and policies that will be assembled in Phoenix for this event. And here is a brief overview from the event webpage:
Roughly a century ago, in response to growing concerns about drug use, the federal government enacted its first drug control law in the Harrison Narcotics Act of 1914. Subsequent decades saw Congress continue to pass drug control legislation and criminalize drug abuse, but by the 1960s there was growing interest in more medical approaches to preventing and responding to drug abuse. Upon his election, President Richard Nixon prioritized the reduction of drug use: in rhetoric, he spoke of a so-called “war on drugs”; in policy, he pushed for a new comprehensive federal drug law in the form of The Controlled Substances Act (CSA), enacted as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970.
The CSA emerged from a widespread, bipartisan view that comprehensive legislation was needed to clarify federal drug laws, and its centerpiece was a comprehensive scheduling system for assessing and regulating drugs in five schedules defined in terms of substances’ potential for abuse and dependence, and possible medical use and safety. In design, the CSA was intended to prioritize a scientific approach to drug prohibition and regulation by embracing a mixed law-enforcement and public-health approach to drug policy. But in practice, the US Justice Department came to have an outsized role in drug control policy, especially as subsequent “tough-on-crime” sentencing laws made the CSA the backbone of a federal drug war in which punitive approaches to evolving drug problems consistently eclipsed public health responses.
Although the federal drug war has been controversial since its inception, the CSA’s statutory framework defining how the federal government regulates the production, possession, and distribution of controlled substances has endured. As we mark a half-century of drug policy under the CSA, the Academy for Justice at the Arizona State University Sandra Day O’Connor College of Law and the Drug Enforcement & Policy Center at The Ohio State University Moritz College of Law are together sponsoring a conference to look back on how the CSA has helped shape modern American drug laws and policies and to look forward toward the direction these laws could and should take in the next 50 years.
UPDATE: I am moving this post to the top of the page because this awesome conference starts soon and I can now provide this link with its own links to the livestream for each of the panels. I think every part of the conference will be amazing, but marijuana fans might be especially drawn to Friday (Feb 21) afternoon's "Town Hall on Marijuana in 2020: Legalization and Regulation" 3:30pm-4:30pm (Arizona Time).
"Colorado marijuana sales hit a record $1.75 billion in 2019: Cannabis sales have now reached a total of $7.79 billion in the 6 years since legalization"
The title of this post is the full headline of this new Denver Post piece, which provides a reminder of how easy it is to identify (some) economic metrics that follow from marijuana reform. Here are the details:
Last year was the most lucrative 12 months for cannabis sales in Colorado since the state’s voters legalized recreational marijuana. Medical and recreational cannabis sales hit a record $1.75 billion in 2019, up 13% from 2018, according to data from the Department of Revenue’s Marijuana Enforcement Division. Marijuana tax collections also hit an all-time high, at more than $302 million in 2019.
December closed out the year with strong sales totaling more than $144 million, up 6.7% compared to the previous year. But that wasn’t the biggest month of 2019; instead, August topped the calendar year with $173 million in sales. All told, Colorado marijuana sales now have hit $7.79 billion since recreational sales began in 2014.
Truman Bradley, the newly appointed executive director of the Marijuana Industry Group, said the revenue increases in Colorado track with expectations. “People are moving from the unregulated market to the regulated market,” Bradley said. “As reefer madness goes away, as the stigmatism of cannabis reduces and people come over to the regulated market, I would expect that trend to continue.”
Since January 2014, Colorado’s cannabis industry has generated $1.21 billion in tax revenue. Those taxes are allocated to the state’s public education fund, which covers initiatives such as the Colorado Department of Education’s Building Excellent Schools Today (BEST) fund; the state general fund, which covers agencies’ expenses; and the marijuana tax fund, which benefits programs related to substances abuse and treatment, health research, youth education and more. Tax revenues also benefit local governments.
In recent posts (here and here and here) and in my marijuana seminar, I have been exploring in various ways what might be the proper metrics for assessing medical marijuana reform regimes. This new data from Colorado, in turn, prompts similar questions about assessing recreational reform regimes. I am inclined to believe these numbers represent positive economic realities like increased employment, wealth and valuable wealth reallocation via taxes. But public health experts might see these numbers as representing negative health trends and they might also perhaps demonstrate problematic wealth reallocation from the vulnerable to the already privileged.
February 19, 2020 in Business laws and regulatory issues, 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, February 18, 2020
The title of this post is the headline of this new Salon article that seems to effectively review where marijuana reform initiatives already have qualified, or might still qualify, for the ballot in fall 2020. Here is the wind up and the essentials (click through for lots of details and lots of links):
It's tough to push a legalization bill through the state legislative process. A single recalcitrant committee head can kill a bill, and even committed proponents can fail to reach agreement, squabbling over issues such as taxation, which agencies will have regulatory power, and ensuring social justice in the industry. And so the bill ends up dying. Of the 11 states that have so far legalized marijuana, only Illinois and Vermont have done it via the legislature, and in Vermont, they only legalized possession and cultivation, not a taxed and regulated market.
It could be different this year because 2020 is an election year, and that means residents of a number of states will or could have a chance to vote directly on whether to legalize marijuana without having to wait for the politicos at the statehouse to ratify the will of the people..... While there are serious prospects for legalization at the statehouse in a handful of state this year — think Connecticut, New Mexico, New York, and Rhode Island — a number of other states are seeing marijuana legalization or medical marijuana initiative campaigns get underway, and several states in each category have already qualified for the ballot. That an initiative campaign is underway is no guarantee it will make it onto the ballot — a well-funded legalization initiative in Florida just came up short on signatures for this year — but it is a signal that it could be. Here's where things stand on 2020 marijuana reform initiatives as of mid-February.
States where marijuana legalization will be on the ballot
States where marijuana legalization could be on the ballot
States where medical marijuana will be on the ballot
States where medical marijuana could be on the ballot
Come November, will we see how many of these efforts come to fruition, but we should be adding at least a state or two to the ranks of both the medical marijuana states and the legalization states — and that's not counting what occurs at statehouses around the country.
Sunday, February 16, 2020
As students in my marijuana reform seminar know all too well, I think the phrase "the devil is in the details" has particular salience when considering the import and impact of state-level marijuana reform. So I was intrigued, but not surprised, to see news reports this week of some encouraging details emerging in California and some discouraging details in Massachusetts. Here are links to press pieces with a few of the key details:
Citing the need to bring relief to people of color who are disproportionately impacted by drug laws, Los Angeles County District Attorney Jackie Lacey dismissed nearly 66,000 marijuana convictions on Thursday. Prosecutors asked a Los Angeles Superior Court judge to dismiss 62,000 felony cannabis convictions for cases dating back to 1961, according to a news release. An additional 4,000 misdemeanor cases were dismissed across 10 cities in Los Angeles County....
According to the District Attorney’s Office, “Approximately 53,000 individuals will receive conviction relief through this partnership.
Of those, approximately 32% are Black or African American, 20% are White, 45% are Latinx, and 3% are other or unknown.”
California legalized recreational marijuana years ago. Thursday’s announcement was made in partnership with Code for America, a nonprofit which created an algorithm to identify convictions eligible to be dismissed under Proposition 64, which voters approved in 2016. Code for America has offered its Clear My Record technology free to all 58 state district attorneys [and the technology has already] helped reduce or dismiss more than 85,000 Proposition 64 eligible convictions across five counties.
Assembly Bill 1793, which passed in 2018, charges prosecutors with reviewing convictions eligible for dismissal or reduction under Proposition 64 by July 1 of this year -- the District Attorney’s office said only 3% of people eligible for conviction relief have received it before Thursday’s announcement. The current process for clearing records involves petitioning the court, which the District Attorney’s Office calls “time-consuming, expensive and confusing.”
From the Boston Globe, "A law said pot taxes should help communities harmed by the war on drugs. That hasn’t happened":
It was a hard-fought victory for Black and Latino lawmakers — a provision in the state’s marijuana legalization law that said some of the pot tax proceeds would benefit communities targeted most by the war on drugs. Leaders in minority neighborhoods envisioned the money helping people to find housing and jobs, including in the new cannabis industry. Police chiefs, too, celebrated that the law reserved some taxes for officer training, hoping the funds would aid in catching stoned drivers.
But a year and a half into the state’s recreational cannabis rollout, none of the $67 million in excise taxes and fees left over after paying for the cost of regulators has benefited either of those causes, a Globe data analysis has found.
Instead, most of that revenue has gone to the state’s Bureau of Substance Addiction Services for existing programs, including treatment for the uninsured, criminal defendants, and impaired-driving offenders. The bureau has not used the marijuana cash to add any new staff or programs, a spokeswoman said, but the money has allowed the state to cut in half its general fund allocation to the bureau.
The failure to fulfill the tax pledges has frustrated minority leaders who say racially targeted policing left many in their neighborhoods with criminal records and unemployed — and they have yet to see the booming new industry benefit them. That’s especially painful in a state where voters passed the first legalization law in the country that mandates the pot industry include people harmed most by prohibition.
“It’s not only a broken promise, but a fraud,” said Chauncy Spencer, 43, a Dorchester man formerly incarcerated over marijuana who has faced delays opening a cannabis business. “There was always the suspicion that the money would never be rerouted to the communities, so for [that scenario] to come to fruition is no surprise."... The Marijuana Regulation Fund ... covers marijuana public-awareness campaigns and the budget of regulators at the Cannabis Control Commission and the Massachusetts Department of Agricultural Resources. The remainder, state law says, “shall be expended for” five causes: public health, public safety, municipal police training, illness prevention, and assistance for communities hardest hit by the war on drugs.
But none of those causes besides public health have received any marijuana money — and aren’t slated to this year or next year. That’s because the law’s wording is vague and doesn’t specify how numerically the money should be divided among the five purposes, allowing the possibility that some don’t receive anything. The law also requires annual action by the Legislature and governor to allocate the money within the massive state budget where pot revenues, though sizable, can be overlooked among other priorities.
Since the revenues started flowing in July 2018, the fund has collected nearly $81 million through early January, state comptroller records show. Each year since, Governor Charlie Baker’s administration has proposed using the funds to support the Bureau of Substance Addiction Services, which the Legislature has approved.
So far, $13.9 million has funded cannabis regulators and $45.6 million was directed to the Bureau of Substance Addiction Services — which Baker’s administration sees as fulfilling the law’s requirements. But to minority community advocates, the state is violating the spirit, if not the letter, of the law.
February 16, 2020 in Criminal justice developments and reforms, Race, Gender and Class Issues, Recreational Marijuana State Laws and Reforms, Taxation information and issues , Who decides | Permalink | Comments (0)
Thursday, February 13, 2020
The title of this post is the title of this notable new paper authored by Keshar Ghimire and Johanna Catherine Maclean appearing in the journal Health Economics. Because I was just today talking with students about metrics for measuring the efficacy of medical marijuana programs, this new piece caught my eye. Here is its abstract:
We study the effect of state medical marijuana laws (MMLs) on workers' compensation (WC) claiming among adults. Medical marijuana is plausibly related to WC claiming by allowing improved symptom management, and thus reduced need for the benefit, among injured or ill workers. We use data on claiming drawn from the Annual Social and Economic supplement to the Current Population Survey over the period 1989 to 2012, coupled with a differences‐in‐differences design to provide the first evidence on this relationship. Our estimates show that, post MML, WC claiming declines, both the propensity to claim and the level of income from WC. These findings suggest that medical marijuana can allow workers to better manage symptoms associated with workplace injuries and illnesses and, in turn, reduce need for WC. However, the reductions in WC claiming post MML are very modest in size.
As noted in prior posts here and here, this week I have asked students in my marijuana reform seminar to reflect on how policymakers should assess the efficacy of medical marijuana programs. Potentially important to this inquiry is figuring out just what basic metrics should matter — metrics related both to the operation of medical marijuana programs and to the program's potential impact on individual and community well-being.
Reflecting on these questions always lead me back to a range of challenging (and useful) policy questions about what fundamental values are of greatest importance as we consider and operationalize any form of marijuana reform. Of course, there are always going to be plenty of basic medical research questions (and uncertainty) about whether and for whom marijuana might provide health benefits (after all, this article suggests medical science cannot conclusively answer whether adults should be drinking milk). But beyond (or intertwined with) uncertainty about the medical use of marijuana, how should policy makers approach these (or many other) potentially important metrics:
-- Is the raw number of patients in medical marijuana programs, or the number of a particular type of patients, fundamental to judging the success of medical marijuana programs?
-- Should self-reports or health-care worker reports of patient satisfaction or the cost of this form of health care relative to others be central to assessing efficacy?
-- Should reductions (or increases) in opioid overdoses or other salient community health problems be a central consideration?
-- How about potential health care cost savings (or cost increases) for the state?
-- How about other possible public health and safety concerns ranging from increased marijuana use by teens, or more reports of substance use disorders, or more accidents involving impaired drivers or even increased crimes around dispensaries?
-- How about tax revenues or number of jobs created as an important metric for medical marijuana programs (since we see this often discussed for recreational programs)?
-- How should social equity and social justice concerns impact these issues: e.g., should we worry if only privileged people have access to and profit from medical marijuana and/or if arrest rates for low-level marijuana possession go up after a state implements a medical marijuana program?
I am sure I am leaving out lots of other important issues in this spitballing of metrics that might be important when evaluating medical marijuana programs. I eagerly welcome feedback and suggestions on this front from all readers.
A few recent related posts:
- How should policymakers assess the efficacy of medical marijuana programs? What are key metrics?"
- Does official public data about Ohio's Medical Marijuana Control Program show its efficacy? Its ineffectiveness?
Wednesday, February 12, 2020
Does official public data about Ohio's Medical Marijuana Control Program show its efficacy? Its ineffectiveness?
In a post from few days ago, I asked "How should policymakers assess the efficacy of medical marijuana programs? What are key metrics?". I have asked students in my marijuana reform seminar to reflect on these questions, and I am wondering if official data on Ohio's "Medical Marijuana Control Program" can help answer these question in the Buckeye State.
Specifically, here is link to a graphic that compares some data on Ohio's medical marijuana program from January 2019 and January 2020. Because the 2019 data is from the "first day of sales," we see great growth in listed number over the course of a year (e.g., registered patients grew from 12,721 to 73,967). Is this a mark of success for a program that became law in mid 2016? Or does this show how slowly (or poorly) the program got launched?
Or consider this page of cumulative data as of Feb 7, 2020
- 19 Level I provisional licenses
- 13 Level II provisional licenses
- 57 Provisional licenses
- 49 Provisional licensees have received a Certificate of Operation
Patients & Caregivers (as of 12/31/2019)
- 83,857 Recommendations
- 78,376 Registered patients
- 5,617 Patients with Veteran Status
- 4,398 Patients with Indigent Status
- 449 Patients with a Terminal Diagnosis
- 55,617 Unique patients who purchased medical marijuana (as reported to OARRS by licensed dispensaries)
- 8,259 Registered Caregivers
- 590 Certificates to Recommend
- 43 provisional licenses
Sales Figures (as of 2/3/2020)
- 8,174 lbs. of plant material
- 393,726 units of manufactured product
- 68.1 million in product sales
- 534,913 total receipts
- Historical Sales Data
Are any of these numbers especially important in judging the success of Ohio's medical marijuana program? What other metrics would be important to judging the success of Ohio's medical marijuana program?
the title of this post is the title of this great new report authored by The Ohio State University's Drug Enforcement and Policy Center (DEPC) now available via SSRN. Though I am listed as a lead author on the report, this document is truly the product of the collective great work of so many DEPC folks. the report also includes the input of dozens of legal academics who participated in a spring 2019 workshop bringing together those who teach or have an interest in teaching in law schools about various aspects of drug policy and law. Here is an abstract for the report:
Despite the significant impact of laws and policies surrounding controlled substances, few classes in the typical law school curriculum focus on either basic legal doctrines or broader scholarship in this field. This gap in law school curricula is especially problematic given the shifts in the landscapes of legalized cannabis and hemp, as well as the range of legal and policy responses to the recent opioid crisis.
To better understand how law schools currently approach these issues and to identify how drug policy and law could be better incorporated into law school curricula, we conducted two surveys of all accredited law schools in the U.S. and hosted a workshop of legal scholars who work in this space. The surveys and workshop were designed to identify law school courses currently taught and the primary obstacles to teaching this subject matter. The results show that the vast majority of law schools do not teach courses touching on drugs or the evolving legal structures around cannabis, and this is true even for law schools located in states with legalized cannabis markets.
Sunday, February 9, 2020
The question in the title of this post are questions I have asked students in my marijuana reform seminar to be considering this week. I am not sure I have good answers to these questions, so I am hoping my students can help answer them.
Notably, the group Americans for Safe Access (ASA) produces an annual report that gives letter grades to all states based on various criteria relating to medical marijuana programs. (The 2019 version of this lengthy and informative report is summarized in this ASA blog post.) But ASA is a medical marijuana advocacy group that grades states based primarily on how accessible marijuana is to individuals who want access -- i.e., ASA is focused on whether programs "ensure that all patients have access to the medicine they need" -- and it is not a given that all policymakers would be keen to adopt the ASA's grading criteria. (Tellingly, in these ASA reports, states with recreational marijuana programs consistently get the highest grades).
The Drug Enforcement & Policy Center last Fall released this survey report that "revealed immense dissatisfaction with the Ohio medical marijuana system" among likely medical marijuana consumers. But again, the views of likely consumers may not be the best metric for assessing the efficacy of a medical marijuana program. In some coming posts, I will focus on some existing data related to Ohio's and (some other states') medical marijuana program to further explore just what metrics ought to be key to assessing the virtues (and vices?) of these programs.