Friday, April 12, 2019
The title of this post is the title of this paper just posted to SSRN and authored by Shelby Slaven, who is a student at The Ohio State University Moritz College of Law. Here is the paper's abstract:
While the idea of legalizing cannabis for adult use is gaining on acceptance among the public, the past and current policies on both, the state and federal level, have resulted in dearth of research on the efficacy of cannabis for therapeutic purposes as well as possible societal and health consequences of recreational use. Institutes of higher education are best positioned not only to reform research on the substance, but to train a generation of cultivators, distributors, and healthcare professionals, and while doing so address some of the historical harms perpetrated by the policies of the War on Drugs. Students are seeking out ways to capitalize on a growing market and remedying past discrimination should be a top priority. This paper first provides an overview of cannabis legalization as it stands today, the political efforts that got it here, and those that will move it forward. It then discusses institutes of higher education and the efforts to bring cannabis into the classroom. Lastly, this paper argues that Historically Black Colleges and Universities can provide education, training, and a foot in the door for Black individuals who have suffered harsher criminal penalties in the name of the war on crime.
April 12, 2019 in Business laws and regulatory issues, Employment and labor law issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
I am very sad that presentations in my my Marijuana Law, Policy & Reform seminar have wrapped up, but that reality gives me a bit more time and space here to catch up on the marijuana law, policy and reform stories that most catch my eye. One such important story that I missed a few weeks ago comes here from Stateline under the headline "African-Americans Missing Out on Southern Push for Legal Pot." I recommend the extended article in full, and here are some excerpts:
Medical cannabis laws typically lay out the conditions for which the drug may be prescribed. But the laws in Arkansas and Florida — the only Southern states that have legalized medical cannabis — don’t cover sickle cell disease, which causes acute pain and disproportionately affects African-Americans. The bills advancing in Tennessee and Kentucky also exclude that condition. Three states that have legalized medical but not recreational cannabis — Connecticut, Ohio and Pennsylvania — allow sickle cell disease patients to use it....
Black legalization advocates also fear that even if medical cannabis becomes legal, white politicians won’t regulate licensing and permitting in a way that ensures equitable opportunities for people of color. “Without that, it’ll be more of the same,” said Dr. Felecia Dawson, a board-certified physician who closed her Georgia-based OB-GYN practice to focus on advocating for medical cannabis. “Legislators will keep people of color ... from the benefits of cannabis.”
Nationally, research suggests that medical marijuana use is more common among whites with high incomes, perhaps in part because of the long history of racial disparity in drug enforcement....
Every Southern state by 2016 had legalized the treatment of a limited number of conditions using CBD oil. As public support increased, so did lawmakers’ willingness to expand the list of eligible conditions. But some conditions that affect minority populations at higher rates than white ones — such as sickle cell disease, which affects 73 in 1,000 African-Americans at birth compared with 3 whites, according to federal estimates — are not included in proposals currently making their way through several Southern statehouses.
In a 2017 hearing co-hosted by the Arkansas Medical Marijuana Commission, following a ballot initiative that had legalized medical cannabis, advocates wore “Diversity for All” T-shirts to emphasize the drug’s importance to minority residents. “We know that such diseases as hypertension, sickle cell, neuropathy and so on are more predominant in blacks,” Casey Caldwell, a black cannabis advocate, said at the hearing.
“It is safe to say that African-American communities would benefit the most,” she added. “In the past, pharmaceutical drugs have been priced so high that [we] have to make a decision whether or not they should eat or whether they should purchase medication.”
Those concerns echoed what Dee Dawkins-Haigler, a former Democratic Georgia representative who headed the state’s Black Caucus, said in 2015 about the initial absence of black people among the state’s 17 appointees to the Commission on Medical Cannabis. The Black Caucus eventually fought to get sickle cell disease added to the list of conditions eligible for CBD oil....
In Florida, black farmers initially cried foul at being shut out of the state’s multibillion-dollar cannabis trade over policies that required license holders to have operated for 30 straight years. According to Roz McCarthy, founder of the Florida-based advocacy group Minorities for Medical Marijuana, the state’s law lacked the teeth needed to ensure that medical cannabis license holders adhered to requirements to ensure diversity in hiring. A spokesperson for the Florida Department of Health said that state law “does not require medical marijuana treatment centers to report the race or ethnicity of its owners.”
McCarthy said, “We’re trying to push lawmakers to understand that they have the ability and the power to ensure exclusionary practices don’t happen. Barriers are there. But the opportunity to reduce barriers is also there.”
April 12, 2019 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)
Monday, April 8, 2019
Regular readers will not be surprised to hear I am excited for the first of the last four student presentations planned for this coming week in my Marijuana Law, Policy & Reform seminar. Of course, I am excited about the work of all my students, but this wee we have a student focused on a topic on which I have done some writing, namely expungement practices. Here is how my student has summarized this topic, along with the background readings she has provided:
States that have chosen to decriminalize or legalize marijuana have, in most places, chosen to enact a specific marijuana expungement scheme within the bill that legalizes marijuana or separately. The expungement schemes offer a way for some to shed the hurtful effects of collateral consequences from a marijuana misdemeanor or felony.
As we come closer to legalizing marijuana on the federal level, the question of how to repair for the harms done by the War on Drugs and how best to expunge records will continue to be visited. The collateral consequences have consequences of their own and the War on Drugs helped fuel mass incarceration and racist policing practices. Robust and broad reforms will be needed to repair for the extensive damage to the criminal justice system, something marijuana legalization isn’t equipped to do wholly on its own. But the current expungement schemes, with filing fees, waiting periods and other hurdles, don’t set a good example as we head toward nationwide legalization.
Links to readings and background materials:
"Federal Collateral Consequences for Marijuana Convictions", Marijuana Policy Project paper explaining some of the federal collateral consequences resulting from marijuana convictions
"Drug offenders in American prisons: The critical distinction between stock and flow", Brookings piece by Jonathan Rothwell highlighting difference between stock and flow of drug prisoners which highlights that there are many more drug convictions than violent offense convictions.
"Why you can’t blame mass incarceration on the war on drugs", Vox article by German Lopez disputing Michelle Alexander’s "drug war" explanation for mass incarceration while explaining why the path to ending mass incarceration is complicated.
“Leveraging Marijuana Reform to Enhance Expungement Practices” by Douglas Berman
Links to Expungement Schemes:
Connecticut Bill - Bill for legalization in state's house judiciary committee
Monday, April 1, 2019
The question in the title of this post is the headline given to this Connecticut public radio show which aired today. I am very grateful to Professor Jenny Roberts, who was part of the show, for sending me the link to the show and also for providing this summary:
As you may know, Connecticut's proposed bill has some really interesting social justice/equity provisions – not only with expungement, but also with who will actually get the licenses in Connecticut. The show also explored issues of how those affected negatively by drug laws over the years might now get funding, etc, to start a marijuana business. State Sen. Gary Winfield, who is sponsoring part of the legislation, is on the whole time and well worth a listen, and a Boston Globe journalist joined for one segment on the Massachusetts social equity situation.
Here is how the show's website describes the 50-minute segment:
With recreational marijuana on sale in Massachusetts, Connecticut lawmakers are looking at legalizing recreational cannabis more seriously than ever. Meanwhile, research continues to show that the enforcement of drug laws in recent decades has disproportionately impacted communities of color. This hour, we ask: if Connecticut legalizes recreational marijuana, can it do so in a way that corrects some of this history of discriminatory enforcement?
We talk with Judiciary co-Chair Senator Gary Winfield, who is calling for putting equity at the front of legalization efforts. And we check in about how racial justice has — or hasn’t — come along with legalization in states that already have legal weed, from Massachusetts to California.
April 1, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Wednesday, March 27, 2019
Minority Cannabis Business Association engages OSU College of Law 3L Chris Nani to evaluate social equity efforts in Los Angeles
I am always so very excited when students here at The Ohio State University Moritz College of Law get so very excited about marijuana law and policy. One such student whose work I have spotlighted here is Christopher Nani, who took my marijuana seminar back in Fall 2017 and has been doing amazing work in this space ever since. In addition to getting articles published at the Cannabis Law Report discussing federal tax treatment of cannabis businesses (see prior posts here and here) and co-hosting a podcast focused on business development in the cannabis industry (called Cannabiz with Canna-Chris), Chris has produced this notable article detailing a "Model Social Equity Equation for the Cannabis Industry."
I describe Chris' article as notable in part because the Minority Cannabis Business Association took note of the work, and MCBA has now engaged Chris to use his equation to "score" Los Angeles. This press release, titled "MCBA Engages in Case Study to Rate Efficacy of Los Angeles’ Social Equity Program," explains:
The Minority Cannabis Business Association (MCBA) announced plans to take a score of social equity policies implemented by the city of Los Angeles intended to increase diversity in the burgeoning cannabis industry. Partnering with the MCBA on this effort is Chris Nani, an Ohio State Law student who recently released a similar study that focused on these equity policies in three other California cities.
The results of Nani’s preliminary study had outcomes for Sacramento, San Francisco and even the much-lauded Oakland program that didn’t fully meet the intent of those policies, and underlines the necessity of reassessment once these programs have been implemented. As one of the largest markets in California, Los Angeles is an important influencer in the industry and will serve as an example for future efforts on this topic.
“We are excited to see municipalities across the country starting to implement social equity programs as a way to reinvest in communities that for decades have been disproportionately harmed by the War on Drugs,” says Kayvan Khalatbari, MCBA’s Board Chair. “Now we need to ensure their intended outcomes are being met. If they’re not, we need to reexamine those policies and work on them until we get it right. We must develop an effective and repeatable model.”
The case study will utilize an “Equity Equation”, which provides a scored assessment to rate the effectiveness of municipal social equity programs based on 10 separate factors, all of which have been determined to play a major role in the ultimate success or failure of these policies. One factor commonly cited as a barrier to entry for people of color to find a place in the cannabis industry, regardless of policies in place, is a lack of available capital.
“Social equity programs are an important progression for the cannabis industry,” says Chris Nani. “As new markets come online and use Los Angeles as a model in their own programming, it’s critical that we understand what is working and what is not. The equation I developed is meant to grade the efficacy of these programs and offer suggestions for improvement. I look forward to working with lawmakers, social equity applicants and MCBA to work towards improving these policies across the country.”
March 27, 2019 in Business laws and regulatory issues, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, March 19, 2019
The title of this post is the title of a presentation to be made by one of my students in my Marijuana Law, Policy & Reform seminar this coming week. Here is part of her explanation of her topic and links to some background reading:
Native Americans have a tricky and unique history with cannabis. Indians have always used “teaching plants.” And almost every single ceremonial herb used by Indians has been illegal at some point in the United States: salvia, peyote, mullen, mints, and sage. In particular, cannabis is more controversial, given its growing popularity in the United States by non-Natives. Cannabis is considered a sacred herb in many tribes, but not all tribes. For example, the First Nation tribe uses it in rituals, some tribes claim great visionaries used it with their sacred pipes, and other tribes, such as the Dakota and Lakota tribes, state that their medicine men have never used cannabis as a part of their ceremonies.
There has recently been a rise in "cannabis churches,” with the most controversial church, the Oklevueha Native American Church, leading such controversy. The church was founded by James “Flaming Eagle” Mooney. Mooney claims to have native American ancestry, but does not have any official tribal affiliation. The church is comparable to the fundamentalist mormons: The Church of Jesus Christ of Latter Day Saints does not condone of affiliate itself with fundamentalist mormons, and the National Council of Native American churches released a statement, advising the public that it does not “condone the activities of the illegitimate organization.” This complicates Indian history, as some tribes may wish to use it as a sacrament, and others use the Oklevueha church as a scapegoat and a reason to ban cannabis on its tribes.
U.S. courts have previously ruled that cannabis being used as a religious sacrament does not give tribes the right to use it. Overall, my goal is to: 1) explain the history of peyote, ayahuasca, and cannabis in Native American culture; 2) describe the use, or lack thereof, of cannabis and how it differs from tribe to tribe; 3) describe the rise of “cannabis churches” generally, with a focus on the Oklevueha Native American Church, and the legal troubles they have faced; 4) the legal argument to allow Indian churches to use cannabis as a sacrament or a ritual herb, and the legal argument to prohibit Indian churches from using cannabis as a sacrament or a ritual herb; and 5) the potential implications which it would have on tribes in the future.
- "Recent Articles Concerning Oklevueha"
- Rolling Stone article: "Are Weed Churches Legitimate Houses of Worship, or Just Another Way Around Marijuana Law?"
- Amici curiae brief filed in 2014 in Ninth Circuit case on behalf of by the Native American church groups (generally discussing the controversy over cannabis and the use of peyote by Indian tribes)
Tuesday, March 12, 2019
There is much discussion in marijuana reform circles about how states and localities can best ensure the new growing marijuana industry develops in a diverse, socially equitable way. The latest effort to advance this agenda comes from the Minority Cannabis Business Association (MCBA), which has now released this interesting new "Model Municipal Social Equity Ordinance." Here is part of the preface of this model ordinance:
This Model Municipal Social Equity Ordinance (“Model Ordinance”) is intended to be used by municipalities that have adopted ordinances to regulate, zone and license local cannabis businesses, or are currently considering draft ordinances to do so. As such, this Model Ordinance does not include recommended provisions for general license types (other than to add license types that lower barriers to entry or mitigate on-going criminalization of cannabis consumption), nor does it include detailed zoning and land use provisions. The drafters of this model ordinance assume those provisions are already incorporated within the adopting municipality’s general licensing ordinance, and that the general licensing ordinance already reflects the particular circumstances of its local community.
We also assumed that the types of licenses which may be available, and the general regulatory framework surrounding cannabis businesses will be largely predetermined by the state in which the adopting local jurisdiction sits. As such, the Model Ordinance contains only those provisions necessary to create a baseline framework for adopting and advancing social equity in the cannabis industry as official public policy -- a “minimum viable product” designed to be broadly adopted and tailored as necessary by each adopting jurisdiction. Prevailing political realities in each jurisdiction will vary, and the Model Ordinance includes bolded and bracketed substantive terms that may be revised as necessary....
The Drafting Committee finalized this version of the Model Ordinance after incorporating input received on two previous working drafts. The First Discussion Draft was previously circulated in October 2018 and presented to the attendees of the MCBA Policy Summit, as well as the members of the MCBA Policy Committee and the MCBA Board of Directors. Their input was incorporated by the Drafting Committee into the Second Discussion Draft. The Second Discussion Draft was circulated for input to the MCBA Board of Directors, the NCIA Policy Council staff, Drug Policy Alliance staff as well as other select stakeholders for additional input before being finalized. Finally, please note that this Model Ordinance is intended to be a living documents, and one that can be continually improved upon. The Drafting Committee invites any and all input on the Model Ordinance, and expects to publish updated versions of the Model Ordinance periodically.
Interestingly, though the heart of the Model Ordinance is a social equity program, these heading from the model proposal show that more is covered than just business issues:
Section 1: Short Title
Section 2: Cannabis Social Equity Program
Section 3: Good Faith Effort for Equity in Employment
Section 4: Community Benefits Agreement
Section 5: Community Reinvestment Fund
Section 6: Record Change Provisions
Section 7: No Additional Restrictions Allowed on Entry Into the Cannabis Industry
Section 8: Data Collection
Section 9: Lowest Law Enforcement Priority
Section 10: Permitting Social Consumption Lounges
Section 11: Eliminating Suspicionless Drug Testing
March 12, 2019 in Business laws and regulatory issues, Criminal justice developments and reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Thursday, March 7, 2019
Latest polling data shows overwhelming support for medical marijuana reform and notable age gap in support for full legalization
The results of the latest Quinnipiac University national poll with questions on marijuana reform can be found at this link, and here is how the results on these questions are summarized:
American voters say 60 - 33 percent "the use of marijuana should be made legal in the U.S." There is a very small gender gap, but a wide age gap:
- Voters 18 to 34 years old support legalized marijuana 85 - 12 percent;
- Voters 35 to 49 years old support it 63 - 30 percent;
- Voters 50 to 64 years old support it 59 - 35 percent;
- Voters over 65 years old are divided on legalized marijuana as 44 percent support it, with 49 percent opposed.
Voters support medical marijuana, if a doctor prescribes it, 93 - 5 percent.
American voters support erasing criminal records for marijuana possession 63 - 29 percent. Republicans are divided as 45 percent support erasing records, with 47 percent opposed. Every other listed party, gender, education, age and racial group supports erasing criminal records.
"The baby boomers say no to the drug that helped define an era, while the millennials say bring it on," [Tim] Malloy [assistant director of the Quinnipiac University Poll] said. "In between are enough voters to rubber stamp legalizing marijuana for recreation as well as medical reasons."
The results on these questions are here also broken down by gender, education levels and racial background. Interestingly, there is no real gender gap on these questions in this latest poll, but there is a small racial gap on a few of the questions.
Saturday, March 2, 2019
"Achieving Equity in the Marijuana Industry: Should State's Implement Social Equity Provisions into their Regimes?"
As mentioned in a recent post, this time of year students in my Marijuana Law, Policy & Reform seminar are advancing research projects/papers around topics of their choosing, and they are starting to gear up for in-class presentations. The presentation includes the requirement that they provide for posting here materials/links with background reading and information for the discussion they will lead. This coming week a student will be discussing the topic that serves as the title of this post, and here is his description of his plans:
I will examine how minorities have been disproportionately affected by the war on drugs and the consequences we still face today as a result of this enforcement. I will focus on the regimes that various states have put in place to address social equity, proposals states/localities are currently facing, the challenges of implementing these types of regimes, and what I consider the best solution to the social equity issue. Below are sources for the presentation: the first two examine why social equity regimes are necessary; the next three discuss regimes in place and the issues they have faced.
Trevor Hughes, New Marijuana Laws in 2019 Could Help Black and Drug Dealers go Legal, USA Today (Feb. 21, 2019)
Janell Ross, Legal Marijuana Made Big Promises on Racial Equity – and Fell Short, NBC News (Dec. 31, 2018) .
Laura Hancock, Judge Tosses Ohio Medical Marijuana License Requirements for Minority Groups, Cleveland.com (Nov. 16, 2018)
Celene Adams, Challenges – and Controversy – Swirl Around Marijuana Social Equity Programs in California, Marijuana Business Daily (Nov. 29, 2018)
March 2, 2019 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Thursday, February 21, 2019
The title of this post is the headline of this notable new NPR piece. Here are excerpts:
As marijuana becomes legal around the country, blacks and Latinos are often left out of new business opportunities. Advocates say people of color are often reluctant to join the growing legal marijuana economy because they were targeted far more often than whites during the war on drugs. Studies show members of such communities were arrested and jailed for illegal marijuana use far more often than whites.
As Massachusetts developed laws for legal marijuana, officials wrote what they claimed was a first-in-the-nation Social Equity Program explicitly to give members of those communities a leg up. But this part of the state law isn't working — next to no black or Latino candidates have applied for licenses in Massachusetts.
They're scared of the government. "They're scared of the government, man," said Sieh Samura, an outspoken cannabis activist. "This is still a new thing. And there's taxes, there's the government, there's all kinds of things, you know. Just because people say it's legal ... it's not welcoming for everybody."
Studies show that blacks and Latinos nationwide have been arrested and incarcerated for cannabis and other drug crimes at at least four times the rate of whites. The long-term effects of the war on drugs launched in the 1970s are still evident in many communities of color.
So, the city of Somerville, Mass., passed an ordinance requiring that 50 percent of recreational marijuana licenses go to black and Latino applicants. "We want to make sure that everyone has a real authentic opportunity to participate in that economy in the future," said Somerville Mayor Joe Curtatone. "If not, we start to lose the fabric and soul of our community. And then social inequity becomes greater, becomes vaster, and we can't allow that to happen. We're a pro-growth community, but we want to make sure regular folks are able to participate in that."...
To be a model for others, Samura and his wife Leah created a recreational marijuana business called 612 Studios. For months they've been coming to a massive marijuana cultivation facility in Milford, Mass., to participate in The Sira Accelerator, a 12-week program designed to get more people of color into the industry by doing everything from raising money, to helping with marketing, packaging and distribution.
This program is run by Sira Naturals, which grows marijuana and creates products for its own medical dispensaries and some other recreational businesses. Mike Dundas, Sira Naturals' CEO, said the company wants to help longtime marijuana advocates, like the Samuras, or folks who have been dabbling in the illegal pot market. "We see our program, the Sira Accelerator, as sort of offering a hand to those who've been operating — and have skill and passion and dedication to cannabis products — in the illicit marketplace, to come to the regulated side, to get on the books and help facilitate the start of their businesses," said Dundas.
In return for the advice and counsel, Sira takes just under a 10 percent stake in the new company. Sira also hopes the accelerator will help it open a recreational shop in Somerville, where it already runs one of three medical dispensaries. The company can't get a recreational license until black or Latino entrepreneurs do because of the city's ordinance. Dundas, who is white, admits he's scrambling to find and mentor people of color who want to open businesses in Somerville to ensure that his company can open a retail shop of its own.
Karen O'Keefe, director of state policies with the Washington, D.C.-based Marijuana Policy Project, said there have been lots of attempts around the country to help candidates from black and Latino communities, but none have worked. "None of the states have the kind of diversity that we would like to see in the cannabis industry," she said....
"States moving forward are going to look at what happened in Massachusetts," O'Keefe said, "why such good intentions didn't end up bearing as much fruit and as much diversity in the industry as was intended."
UPDATE: Not long after this posting I saw that USA Today has an even fuller discussion of these issues in this new article headlined "Drug laws have historically been racist. Marijuana activists are helping minority dealers go legal." Here is a small piece of a long article worth reading in full:
The war on drugs has for decades disproportionately devastated minority communities by punishing people like Blunt and creating a cycle of poverty, incarceration and limited employment options, legal and social justice experts say.
Now, lawmakers and legalization advocates across the country are demanding not just cannabis legalization but remedies to address decades of demonstrably racist policing, from laws that automatically expunge criminal records for marijuana dealing and possession to policies that would give minority communities assistance in building cannabis businesses....
For many marijuana legalization activists, it's now up to local governments to diversify the legal pot industry by clearing conviction records and handing out subsidies. If white men have unfairly benefited from marijuana legalization, then it's only fair that minority communities be given extra help now because they suffered more, the thinking goes.
"We actually do have to overcorrect," said Kassandra Frederique, 32, the New York state director of the Drug Policy Alliance, which is lobbying to legalize marijuana in the Empire State. "People from our communities, black and brown communities, were the one first ones to be criminalized. Why shouldn’t we be the first ones to benefit?"
February 21, 2019 in Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (2)
Sunday, February 17, 2019
As reported in this local article, headlined "Norfolk judges unite to block prosecutor from dropping marijuana cases," a fascinating tussle has broken out as an elected prosecutor tries to move away from criminally prosecuting marijuana offenders. Here are the details:
The judges on the city’s top court have decided to block Norfolk’s chief prosecutor from essentially decriminalizing marijuana possession, a setback he’s thinking about appealing to the state Supreme Court.
On Tuesday, prosecutors under Commonwealth’s Attorney Greg Underwood went to court for at least the third time to try to drop or dismiss misdemeanor marijuana charges. Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, he’s said.
For the third time, a judge rebuffed them, and told prosecutors she’s not alone, but joined by her seven colleagues. “We are of one mind on this,” Circuit Judge Mary Jane Hall said.
The decisions adds to the confusion about whether it’s OK to have a small amount of weed in the city. Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them....
In 2016 and 2017, more than 1,560 people have been charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi told the judge in court Tuesday. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black.
This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”
On Tuesday, Hall denied Fatehi’s motion to dismiss charges against Zemont Vaughan. The 24-year-old Norfolk man, who is black, had been convicted in a lower court in October, but on Tuesday, he went to the higher Circuit Court to appeal that conviction.
Prosecutors’ motions to dismiss or drop charges are typically formalities. They don’t generally like giving up on cases, so when they make what amounts to an admission of defeat, judges almost always grant them. Not this time.
Hall told Fatehi she and the other seven judges think the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws. The judge said Fatehi made an “extremely compelling case” with his statistics on racial disparities, but should pitch it to lawmakers in Richmond.
“I believe this is an attempt to usurp the power of the state legislature,” Hall said. “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”
Fatehi countered: Underwood is exercising the executive power voters gave him when they elected him the city’s top prosecutor. Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources. In contrast to the misdemeanor possession charges, Underwood’s lawyers will keep prosecuting people accused of trafficking or dealing marijuana. “This is an exercise of our discretion,” Fatehi said.
Fatehi said Underwood is thinking about asking the state Supreme Court to reverse the judges’ decisions, adding that he’s “very close” to making a decision.
Lots can be said on the substance of the decisions being made by the city prosecutor and city judges in this case, but I will be content for now (1) to note that broad prosecutorial discretion in charging (and not charging) is the norm, and (2) to wonder aloud how prosecutions could or would move forward in these cases if city prosecutors refuse to be involved. And, finally, this story highlights yet again how disparate marijuana enforcement seems to be everywhere and how interesting legal issues surrounds all kinds of modern marijuana reform efforts.
February 17, 2019 in Campaigns, elections and public officials concerning reforms, Court Rulings, Criminal justice developments and reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)
Monday, February 11, 2019
The title of this post is the headline of this notable new research brief produced by the Data Collaborative for Justice at the John Jay College of Criminal Justice. This brief provides lots of interesting data within this research project, and it starts with these four "key findings":
1. The number and rate of arrests for marijuana possession were higher in 2017 than in 1990 for the State as a whole and for New York City, Upstate Cities and the Rest of the State but the number and rate of arrests were lower in 2017 than the peaks in New York City and Upstate Cities;
2. In 2017, in New York City, the vast majority of misdemeanor marijuana possession arrests (~93%) were for possession of marijuana in public view or public consumption whereas for the Upstate Cities and the Rest of the State, significant percentages of misdemeanor marijuana possession arrests were for possession of between 25 grams to 8 ounces (~60% and ~30% respectively);
3. At the state-level, 18-20 year-olds consistently had the highest rates of arrest for marijuana possession, mostly driven by the higher rates of arrest for this group in New York City, but there was more variability by age in Upstate Cities and the Rest of the State; and
4. Across all three geographic areas, Blacks and Hispanics consistently had higher rates of arrest for misdemeanor marijuana possession compared to Whites, these racial differences in arrest rates widened over the study period and, in 2017, the racial differences in arrest rates were wider for the Upstate Cities and the Rest of the State compared to New York City.
Saturday, January 26, 2019
The title of this post is the headline of this lengthy new commentary piece authored by Jenni Avins appearing in Quartz. I recommend the piece in full, here is its powerful start:
Since California legalized recreational cannabis in January 2018, pot enthusiasts in posh sections of Los Angeles can sleep easily with a few drops of CBD oil under the tongue. They can stroll into dispensaries such as MedMen, the chain touted as the “Apple store of weed,” which recently reported quarterly revenues of $20 million. On Venice Boulevard, shiny sedans toting surfboards drive past posters for Dosist vape pens and billboards for delivery services such as Eaze, a San Francisco-based startup that has raised some $52 million in venture capital.
In places like this, weed is chic. But just a few freeway exits away, in largely black and Latino neighborhoods where cannabis was aggressively policed for decades, people saddled with criminal convictions for possessing or selling the plant still fight to clear criminal records standing in the way of basic necessities: employment, a rental apartment, or a loan. Marijuana legalization and the businesses that profit from it are accelerating faster than efforts to expunge criminal records, and help those affected by them participate in the so-called “Green Boom.” And the legal cannabis industry is in danger of becoming one more chapter in a long American tradition of disenfranchising people of color.
Here is more:
As the US teeters at the tipping point for marijuana going mainstream, it’s increasingly apparent that people and communities who were disproportionately punished for its criminalization were wronged. It’s a cruel footnote to the story of the plant’s legalization that punishment for past involvement with cannabis can remain a bar to entry in the lucrative newly legal industry. Now, policy-makers, entrepreneurs, activists, and everyday consumers are asking what reparations for those wrongs might look like.
Here’s one idea that many agree on: Those disproportionately affected by the War on Drugs—largely, black and Latino communities—should be first in line to benefit from the Green Boom, whether as business owners or beneficiaries of programs funded by earnings from the business.
The US’s legal weed explosion is an incredible story of de-stigmatization, entrepreneurship, and opportunity. It’s also at risk of becoming a staggering tale of hypocrisy, greed, and erasure. But as a deep-pocketed industry with political momentum, American cannabis is uniquely positioned to serve as a model for what racial reparations could look like.
“This is about harnessing the industry to embody the work of repair,” said Adam Vine, the founder of Cage Free Cannabis, an organization that pushes for “drug war reparations” in the form of criminal record expungement, job fairs, voter registration, health care, and social equity programs. “Otherwise,” he said. “Legalization is just theft.”
Go read the rest.
January 26, 2019 in Business laws and regulatory issues, Criminal justice developments and reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Sunday, January 6, 2019
Highlighting and lamenting how state decriminalization did not diminish racially disparate enforcement of marijuana prohibition
This notable new Baltimore Sun editorial, headlined "More blacks still arrested for marijuana charges," spotlights with new data a point I made in this recent post, namely that decriminalization reforms will not eliminate the harmful and disparate aspects of marijuana prohibition. Here are excerpts:
There were high hopes for decriminalizing marijuana in Maryland. Most notably, many pushing for change, including The Sun’s editorial board, hoped it would put an end to racial disparities that meant an African-American caught with a small baggy of the drug might see their life ruined, while a white person might not ever get arrested for the same offense.
Yet little has changed on that front since a law went into effect in 2014 that reduced the penalty for possession of fewer than 10 grams of cannabis to a simple citation and fine. Arrests are way down — but racial disparities in enforcement aren’t. A new analysis of data by Baltimore Fishbowl [available here], in collaboration with the Baltimore Institute for Nonprofit Journalism and data researcher Andy Friedman, has found that in Baltimore African Americans are still arrested for marijuana possession at much higher rates. This despite the streams of research finding that neither race uses the drug any more than the other.
In the first three years after the law was instituted, Baltimore police arrested 1,448 adults and 66 juveniles for possession, according to the analysis. Of those,1,450 — 96 percent — were black. That disparity is actually slightly worse than what the ACLU found in a pre-decriminalization analysis of Baltimore arrest data. Police filed nearly 3,200 individual charges for misdemeanor possession during that same period, and most of those charged were in predominantly black areas of the city, the data showed.
We could debate whether this means the law didn’t go far enough. Maybe the racial disparities wouldn’t be so dire if the state raised the amount of marijuana — to, say, an ounce — that would result in a fine rather than arrest. Some will argue marijuana needs to be 100 percent legalized to erase the discriminatory arrest practices. There are good and bad sides to these arguments and ones lawmakers could find themselves debating again in the near future.
Most disturbing about the data, however, is the implication that law enforcement still polices certain neighborhoods and people of a particular hue much tougher than everyone else. This is no surprise to the people living in these communities who have long complained they receive more attention than they care for from the police....
The disparities shouldn’t be taken lightly. An arrest for marijuana possession can be the start of a downward spiral in a person’s life that begins with a criminal record that can make it hard to find a job. A conviction can also mean somebody couldn’t get student financial aid, housing or professional licenses, according to the Marijuana Policy Project. On top of that, police officers should be spending their resources and time on more pressing crime issues, such as homicides and shootings.
With the legalization of medicinal marijuana, it is becoming increasingly hypocritical for the state to throw people in jail for marijuana while allowing others to make millions off of the drug. And let’s not ignore the fact that the the ones prospering are disproportionately white. A bill in the Maryland General Assembly had sought to add more black firms to the state's regulated medical marijuana industry. Instead it might end up favoring existing players — nearly all of whom are white-owned companies.
Baltimore isn’t the only jurisdiction facing inequality in policing when it comes to marijuana. The ACLU has found that there are “disproportionate arrest rates” in every state. In the United States, African Americans are more than 3.5 times as likely to be arrested for possession as whites, the civil rights organization has found. Arrests for possession in Baltimore increased 15 percent last year, from 471 in 2016 to 544 in 2017, according to the Baltimore Fishbowl analysis. All but 18 of those 544 arrested people were black.
The issue needs to be addressed, and the most effective way is by changing police culture and arrest tactics. As we know, marijuana arrests are not the only place where there are disparities. Hopefully, the consent decree will have some impact, and a new police commissioner, whoever that might be, will make it a priority as well. In the meantime, Maryland hasn’t truly decriminalized marijuana, at least not for African Americans. The numbers make that clear.
The full report referenced in this editorial is available at this link under the title "Structural Racism and Cannabis: Black Baltimoreans still disproportionately arrested for weed after decriminalization." Among the interesting data points in the report is this telling trend: "The number of cannabis citations in Baltimore has climbed significantly in each full year since decriminalization took effect, going from 44 in 2015 to 200 in 2016 to 429 in 2017."
The questions in the title of this post are prompted by this new lengthy Rolling Stone piece fully headlined "Why 2019 Will Be the Year of Weed: From more states legalizing to a boom of new kinds of products, here’s what to expect from the cannabis industry this year." Here are excerpts from an article that merits a full read:
In 2018, pot reached a tipping point. A clear majority of Americans now wants to see the drug made fully legal. California and Canada began selling marijuana to anyone over 21. Corporate behemoths like Altria (parent company of Marlboro cigarettes) and Constellation Brands (parent of Corona beer and Svedka vodka) made multi-billion dollar weed investments. And Senate Majority Leader Mitch McConnell (R-KY) managed to include hemp legalization in the 2018 Farm Bill — de facto legalizing every part of the cannabis plant except THC.
But at the same time, pot prohibition is not over. Well over half a million folks are still arrested for possession every year. Smoking weed or working for a pot company can still threaten your housing, employment, immigration status, finances and freedom. Cannabis business models, regulatory environments and market valuations shift on a daily basis....
As for the 2018 Farm Bill, it’s not yet clear what the regulatory landscape will look like for CBD in 2019. [Some expect] researchers will soon be able to access CBD without jumping through the hoops necessary to acquire a Schedule I drug license from the DEA, which could finally allow scientists to provide more evidence of the compound’s uses and dosage. Still, many people in the cannabis industry are concerned about what the exact guidelines will look like on the commercial production side, and how the rollout will go.
For business owners who have been involved in the weed game for a while, another aspect of the 2018 Farm Bill has proven a troubling sign of the times: anyone with a drug felony conviction in the past 10 years will not be allowed to participate in the legal hemp and CBD market. “What the fuck is that?” asks longtime cannabis cultivator Bill Levers, who runs an influential Instagram account through his California-based company, Beard Bros Pharms. “No one got rich on hemp. There were no hemp cartels. So why would there be a restriction?”
The drug-felony provision in the Farm Bill cuts to the heart of one of the biggest unresolved problems facing the marijuana movement in 2019: the persistence of the illicit market, and the struggle to accommodate folks who have been illegally selling or growing marijuana for years. It is now widely acknowledged that barring people with drug felony convictions from the cannabis industry is racist, as white people with experience on the illicit marijuana market are far less likely to be arrested or convicted. But even without a criminal record, making the transition from outlaw to mogul has proven incredibly difficult, and many of the people who have tried have already given up....
Taxes, in particular, are a thorny issue. Local and state governments generally consider pot taxes to be a primary incentive for legalization, but if tax rates are too high, fewer growers and dispensaries will try to go legal. Already, lax oversight and an oversupply of legal cannabis in states like Oregon and Washington have led to diversion rates of at least 30 percent — meaning at a minimum about a third of legal pot is being sold on the illicit market. Meanwhile, in places like California, Canada and Michigan, hundreds of illegal storefront marijuana dispensaries compete with legal vendors, consistently undercutting them on price. Illicit operators tell me again and again that they cannot afford to survive in the highly taxed and regulated legal market, so they intend to continue breaking the law — sometimes while simultaneously operating a legal business.
Because wealthy (and typically white) applicants have an easier time covering high taxes and licensing fees, some states and municipalities have created so-called “equity” programs to ensure a more diverse industry. In 2017 and 2018, places like Oakland and Sacramento garnered fawning headlines for setting the lofty goal of legislating solutions to the catastrophic and racially disproportionate impact of the War on Drugs. But moving into 2019, California cannabis operators of all colors and political stripes now often describe equity a well-intentioned idea that is failing in practice. The words “tokenism” and “paternalistic” come up a lot.
“Equity is a marketing tool. All of the licenses are going to be given to the people with the most money,” predicts Ophelia Chong, the founder of StockPot Images and executive creative director of Aura Ventures. “Social equity will work for a few, but even then it will be 2 percent [from disadvantaged backgrounds], and those 2 percent will have to really climb a mountain to do it, with no help.” Outside of California, however, including equity and restorative justice in cannabis legalization remains an alluring prospect.
“What I like about California is they give a chance for minorities to get in. They doing the opposite in Michigan,” says Jason, whose cannabis social club, the OMS Dab House, has been a crucial gathering place for Detroit’s marijuana movement for the past decade. Michigan legalized adult-use cannabis in 2018, but as in California, quasi-legal medical dispensaries began proliferating years ago, serving stoners and sick people alike. (The ongoing legal confusion around sales and social spaces is why Jason preferred to not give his last name). Though the city of Detroit is more than 80-percent black, black activists there have previously asserted that only three to five percent of local marijuana dispensaries were owned by black people. Jason predicts that, as Michigan’s legal cannabis industry becomes increasingly corporate and consolidated, those numbers will only go down.
January 6, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Friday, January 4, 2019
Stateline has this new piece, headlined "‘Cannabis Equity’ Runs Into Roadblocks," which highlights that good implementation, and not just good intentions, must be part of modern marijuana social equity programs. Here are excerpts:
Now, as more states legalize recreational marijuana and the federal government moves away from incarcerating nonviolent drug offenders, several cities in California are trying to atone for decades of drug enforcement that fell disproportionately upon minorities.
They’ve created what are known as cannabis equity programs, meant to welcome more minority and low-income entrepreneurs into the now-legal industry. The programs provide business development, loan assistance and mentorships to eligible owners. Hundreds have applied in the past year. But “pot equity” has struggled with growing waitlists, and some participants allege that the programs aren’t fair to the people they’re meant to be helping....
The goal of “cannabis equity” is to lower the barriers to entry into the legal cannabis industry for people who were disproportionately impacted by the criminalization of marijuana. The programs base eligibility on a variety of factors, including marijuana convictions, residency in a heavily policed district and income.
Today, several city partnership programs require that established, non-equity businesses provide an equity business with space for several years rent-free. In exchange, the non-equity company receives faster processing for city approvals. Cities such as Sacramento plan to waive up to tens of thousands of dollars in application and permit fees for eligible cannabis businesses.
But pot equity has struggled to get going. Understaffing in San Francisco’s cannabis office has left a growing waitlist of applicants, and the city doesn’t expect to begin approving businesses until sometime in 2019, said Nicole Elliott, director of San Francisco’s Office of Cannabis. She could not be more specific on timing.
Some applicants argue that the waiting period has allowed other businesses to get an unfair head start. In Oakland, some pot equity businesses claim their incubator partners never followed through on the requirement to provide them with business development assistance or a space to operate....
Creating a program to atone for decades of unjust policing — on top of building the framework for a newly legal cannabis industry — is no easy task. Oakland is setting up a $3 million fund to provide additional capital assistance to pot equity businesses, Brooks said, but it remains unclear when the fund will become available.
San Francisco applicants have raised the same issue, said Elliott, the director of San Francisco’s Office of Cannabis. The office set up an investment fund to provide financial assistance to cannabis businesses, such as low-interest loans. But the city has yet to allocate money to the fund, Elliott said.
She said San Francisco will likely receive part of the $10 million that the state set aside for local cannabis equity programs in September, which could go toward the city’s cannabis investment fund. “There are equity applicants that need money now,” Elliott said. “We will advocate aggressively for that state funding.”
As of mid-December, San Francisco had 227 applicants that qualify for the equity program. Of those, about 110 want to join the city’s incubator partnership program and receive waived permit fees. Elliott said the city will begin approving applicants next year, but she could not say when. Applicants have criticized the lengthy timeline.
San Francisco’s Office of Cannabis, which just added two new staff members to bring the total to five, is tasked with reviewing permit applications and facilitating the equity program. Elliott said adding even more staff would speed things up. In the meantime, the city has established a partnership with the Bar Association of San Francisco to provide pro bono legal assistance to equity program participants.
Malcolm Mirage, an equity applicant in San Francisco, said the long wait has caused him to burn through capital at an alarming rate. He partnered with MedMen, a household name in the cannabis industry that is publicly traded on the Canadian Securities Exchange.
MedMen agreed to provide business development aid and an incubation space for one of Mirage’s businesses. The company also helped him negotiate leases on two other spaces, and he struck a deal that gave him six months of free rent to obtain his permits and become operational.
Mirage figured that was plenty of time. But those six months came and went, and he’s now paying expensive leases on spaces that sit empty. “I got out of jail for selling weed and now I’m trying to do this legally,” Mirage told Stateline. “But I’m drowning right now. My businesses are going to be in a tremendous amount of debt if the city can’t get these licenses out in the next six months.”
January 4, 2019 in Business laws and regulatory issues, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, January 1, 2019
NBC News has two new lengthy articles exploring the state of marijuana research and debate over social justice in this era of marijuana reform. Both pieces are worthwhile reads, and here are links to the pieces with extended headlines and a brief excerpt:
"The year in pot: States embrace legalization, but questions persist; Marijuana, the most widely used illegal drug in the U.S., is winning approval state by state and impressing investors. But researchers still caution against its use."
The wave of legalization is taking place as the latest polls show that nearly two-thirds of Americans endorse it, double the rate in 2000. Investors are noticing too, pouring an estimated $10 billion into the industry in North America this year.
Still, medical researchers continue to caution against its use because little is known about its effects on health. Here is a review of what we’ve learned about marijuana and marijuana-based products in 2018.
"Legal marijuana made big promises on racial equity — and fell short; 'Time is really up on selling your business dream as a social justice movement,' said the president of the Minority Cannabis Business Association."
While marijuana arrests have declined and tax revenue has begun to flow in most states that have legalized pot, the gains have accrued most heavily to white residents, even though black Americans paid the drug war’s biggest costs, according to a statistical analysis conducted by the Drug Policy Alliance, a nonprofit group that advocates drug policy reform.
The results in Colorado, the District of Columbia and the nine other states where recreational marijuana became legal from 2012 to 2018 have left some lawmakers and even marijuana legalization advocates skeptical of broad social-justice claims. For that reason, lawmakers in New Jersey and New York — two of the three states expected to legalize marijuana in 2019 — are now pushing for detailed criminal justice and business equity measures as part of any legalization package....
The efforts in New Jersey and New York come as the inequities in other states have grown clearer. In Colorado, the Drug Policy Alliance found, the number of black juveniles arrested on marijuana charges grew after legalization. In 2016, a Colorado Department of Public Safety analysis found that black people living in that state remained three times more likely than white people to be arrested for selling or possessing marijuana. In Washington state, an ACLU analysis found that in 2014, the first year in which marijuana became available in legal retail stores, a black adult remained three times more likely to face low-level marijuana charges than a white adult.
January 1, 2019 in Criminal justice developments and reforms, Medical community perspectives, Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Thursday, December 6, 2018
New York City Comptroller Scott M. Stringer first caught my attention six months ago when he produced this notable report titled "Estimated Tax Revenues from Marijuana Legalization in New York." Today, Comptroller Stringer has my attention again with this notable new 15-page report titled "Addressing the Harms of Prohibition: What NYC Can do to Support an Equitable Cannabis Industry." I recommend the document in full, and here is part of its introductory section:
Over the last several decades, the prohibition of cannabis has had devastating impacts on communities in New York City, extending beyond incarceration to often long-lasting economic insecurity: damaged credit, loss of employment, housing, student loans, and more. Today, thousands of New Yorkers, overwhelmingly Black and Latinx, continue to endure the untold financial and social costs of marijuana-related enforcement, despite steps to decriminalize.
As New York joins neighboring jurisdictions in moving closer to legalizing cannabis for adult use, the State and the City must take action to ensure that the communities who have been most harmed by policies of the past are able to access the revenue, jobs, and opportunities that a regulated adultuse marijuana program would inevitably generate.
While the creation of a legal market brings the promise of new wealth, the uneven enforcement of marijuana policies in New York specifically and the lack of diversity in the cannabis industry generally foreshadow potential inequities in who will benefit — and, indeed, who will profit — from a legal adult-use cannabis industry. In anticipation of future legalization, this report, by New York City Comptroller Scott M. Stringer, offers a new neighborhood-by-neighborhood look at cannabis enforcement and charts a roadmap for building equity into the industry....
Together, the report findings show that the neighborhoods most impacted by prohibition are among the most economically insecure and disenfranchised in the city. It is precisely these New Yorkers then — those to whom the benefits of legalization should be targeted — who are most likely to face barriers to accessing opportunities in the industry, in particular financing. In addition to reinvesting tax revenue from legalization in these disproportionally impacted communities, steps should therefore be taken to equip those impacted by prohibition to secure the funding and other resources needed to become cannabis licensees. This report recommends that the City, in partnership with the State, develop a robust cannabis equity program to direct capital and technical assistance to impacted communities interested in participating in the adult-use industry.
December 6, 2018 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)
Sunday, November 18, 2018
Spotlighting the still-challenging politics that surround the intersection of marijuana reform, criminal justice reform and racial inequities
Today's must-read for both marijuana reform and criminal justice reform fans is this lengthy new Politico article fully headlined "Racial Justice and Legal Pot Are Colliding in Congress: The latest fight over criminal justice reform is over allowing felons access to newly legal aspects of the cannabis industry. Lawmakers are getting woke — slowly." I recommend this piece is full, and here are some extended excerpts:
Thanks to Senate Majority Leader Mitch McConnell, the [Farm] bill includes an amendment that would permanently remove hemp from the list of federally banned drugs like heroin and cocaine, freeing hemp from the crippling legal stigma that has made it economically unviable for the past four decades. But that amendment also includes a little-noticed ban on people convicted of drug felonies from participating in the soon-to-be-federally-legal hemp industry.
Added late in the process, apparently to placate a stakeholder close to McConnell, the exception has angered a broad and bipartisan coalition of lawmakers, hemp industry insiders and religious groups who see it as a continuing punishment of minorities who were targeted disproportionately during the War on Drugs and now are being denied the chance to profit economically from a product that promises to make millions of dollars for mostly white investors on Wall Street....
[L]awmakers like McConnell, who have discovered the economic benefits of relaxing prohibitions on products such as hemp, have nevertheless quietly found ways, like the Farm Bill felon ban, to satisfy the demands of their anti-legalization constituents, to the chagrin of pro-cannabis lawmakers and activists. After POLITICO Magazine reported on the drug-crime felon ban in August, three senators — Cory Booker (D-New Jersey), Rand Paul (R-Kentucky), and Jeff Merkley (D-Oregon) — wrote to Senate leadership demanding the removal of the ban, citing its “disparate impact on minorities,” among other concerns.
“I think there’s a growing recognition of the hypocrisy and unfairness of our nation’s drug laws, when hundreds of thousands of Americans are behind bars for something that is now legal in nine states and something that two of the last three Presidents have admitted to doing,” Booker told POLITICO Magazine. “If we truly want to be a just and fair nation, marijuana legalization must be accompanied by record expungement and a focus on restorative justice.”...
[The] once-radical notion that felons ought to gain priority for entry into a newly legal industry — instead of being shut out — has quietly gained bipartisan support on Capitol Hill, albeit not among Republican leadership. In the House, this mounting opposition to the continuing punishment of felons first cropped up in September when the Judiciary Committee passed its first pro-marijuana bill. It would expand access to scientific study of the cannabis plant, a notion agreed-upon by marijuana’s supporters and detractors alike. However, Democrats almost killed the bill because it included language that barred felons (and even people convicted of misdemeanors) from receiving licenses to produce the marijuana.
Felon bans are commonplace in legal marijuana programs. Every state has some version of it, but most of them have a five- or 10-year limit. But the felon bans in both the Senate’s Farm Bill and the House’s marijuana research bill are lifetime bans, and the House bill includes misdemeanors, too. “Any restriction on misdemeanors goes in the exact contrary direction of the Second Chance Act,” said Rep. Jerry Nadler (D-New York), who will become chairman of the Judiciary Committee in January. His criticism was echoed by Steve Cohen (D-Tennessee), who sought to have the misdemeanor language struck from the bill until its sponsor, Matt Gaetz (R-Florida), promised to address that language when it comes to the House floor.
In the Senate, the movement to protect the legal marijuana trade has taken the form of the proposed bipartisan Gardner-Warren STATES Act, which would maintain the status quo of federal non-interference of state-legal programs that was upended when then-Attorney General Jeff Sessions repealed the Cole Memo, an Obama-era document that outlined a hands-off approach to state-legal programs. Booker’s Marijuana Justice Act would adopt California-style principles and apply them federally, going far beyond the STATES Act, removing marijuana from Schedule I (defined as having no medical value and a high risk of abuse) and eliminating criminal penalties for marijuana. But unlike other pro-marijuana bills, it would also deny federal law-enforcement grants to states that don’t legalize marijuana; direct federal courts to expunge marijuana convictions; and establish a grant-making fund through the Department of Housing and Urban Development for communities most affected by the War on Drugs.
Booker’s bill has become popular among Senate Democrats. Ron Wyden, Kirsten Gillibrand, Bernie Sanders, Kamala Harris, Jeff Merkley and Elizabeth Warren have signed on as co-sponsors — a list that looks a lot like a lineup of presumed candidates for the 2020 Democratic presidential primary. “For too long, the federal government has propped up failed and outdated drug policies that destroy lives,” Wyden told POLITICO Magazine. “The War on Drugs is deeply rooted in racism. We desperately need to not only correct course, but to also ensure equal justice for those who have been disproportionately impacted. People across America understand and want change. Now, Congress must act.”
Recent polling shows that Americans agree with Wyden — to a point. There is a widespread acceptance of legalizing marijuana. Gallup has been tracking this number since 1969, when only 12 percent of Americans believed in legalizing it; in October, Gallup put the number at 64 percent, the highest ever number recorded. Pew says it is 62 percent, also its highest number ever.
But there is far less acceptance of the idea that the War on Drugs has had an adverse impact on poorer, minority communities, or that there should be some form of compensation in terms of prioritized access to the new industry. A poll conducted by Lake Research Partners, a progressive DC-based polling firm, earlier this year on the “Politics of Marijuana Legalization in 2018 Battleground Districts” found that 62 percent of the 800 likely voters surveyed agreed with the idea “we need legalization to repair the financial and moral damage of the failed War on Drugs.” However, when the pollsters added a racial component to this message — whether the respondents felt that the marijuana prohibition “unfairly target[s] and destroy[s] minority communities” — only 40 percent found that message to be “very convincing.”...
[M]any members of the Congressional Black Caucus have been slow to support marijuana legalization. But the CBC finally made its position on this issue clear in June when its 48-member caucus voted in an “overwhelming majority” to support policies beyond mere decriminalization: “Some of the same folks who told African Americans ‘three strikes and you’re out’ when it came to marijuana use and distribution, are now in support of decriminalizing the drug and making a profit off of it,” CBC Chairman Cedric L. Richmond, Democrat from Louisiana said at the time. “The Congressional Black Caucus supports decriminalizing marijuana and investing in communities that were destroyed by the War on Drugs…”
Arguments for legalizing marijuana haven’t been entirely persuasive to sway many in the conservative black community, but re-framing it in the context of civil rights has brought many around to this new way of thinking. “What is moving conservative black and brown folks is this idea that we’re on the horizon of marijuana legalization,” according to Queen Adesuyi of the Drug Policy Alliance. “So the idea is in order to do this in a way that is equitable and fair, you have to start on the front end of alleviating racially biased consequences of prohibition while we’re legalizing — and that means expungement, re-sentencing, community re-investment, and looking at where marijuana tax revenue can go, and getting rid of barriers to the industry.”
Now that Democrats have won control of the House, co-founder of the Cannabis Caucus, Rep. Earl Blumenauer (D-Oregon), is poised to implement his blueprint for how the House under Democratic leadership would legalize marijuana at the federal level. Racial justice is front-and-center in that plan. The memo he sent to Democratic leadership reads in part, “committees should start marking up bills in their jurisdiction that would responsibly narrow the marijuana policy gap — the gap between federal and state marijuana laws — before the end of the year. These policy issues… should include: Restorative justice measures that address the racial injustices that resulted from the unequal application of federal marijuana laws.”
Cross-posted at Sentencing Law & Policy
November 18, 2018 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Polling data and results, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)
Friday, November 16, 2018
Ohio judge finds unconstitutional state law requiring some medical marijuana licenses go to minority-owned businesses
As reported in this local article, this week "a Franklin County judge threw out a state law requiring that at least 15 percent of cultivation licenses go to businesses owned or controlled by African Americans, Asians, American Indians, Hispanics or Latinos." Here is more on the ruling and reactions thereto:
The Ohio Department of Commerce, the state agency that awards cultivation licenses, will have to decide whether to comply with Franklin County Common Pleas Judge Charles A. Schneider’s Thursday decision and award provisional cultivation licenses to white-owned businesses that scored higher in the review process -- including Greenleaf Gardens, LLC, which challenged the constitutionality of the law in court. Greenleaf Gardens had planned for a large-scale medical marijuana grow operation in Geauga County.
The state could also decide whether to throw out previously awarded licenses to two minority-owned and -controlled businesses that scored lower, although Greenleaf’s attorney wrote in court filings the company did not want that. Commerce can also appeal the decision to a higher court. “We are reviewing the judge’s ruling and considering next steps,” said Kerry Francis, the Department of Commerce’s spokeswoman.
Schneider’s decision only affects part of Ohio’s medical marijuana law, and leaves the rest of it intact.
Greenleaf CEO David Neundorfer said he’s pleased with the court’s ruling. The company has licenses in other parts of the nascent medical marijuana program....
Greenleaf Gardens sued after the Department of Commerce announced recipients of the provisional cultivation licenses, nearly a year ago. It received the 12th highest score among cultivation applicants but did not receive one of the 12 licenses for a large-scale cultivator. The department instead gave licenses to two lower scoring applicants, Parma Wellness Center, LLC and Harvest Grows, LLC.
The Department of Commerce argued it was following Ohio’s medical marijuana law, including provisions the Ohio General Assembly created that not less than 15 percent of cultivator, processor or laboratory licenses be given to entities owned and controlled by Ohio residents who are members of an economically disadvantaged group. The law lists each racial and ethnic group and states that “owned and controlled” means at least 51 percent of the business or business stock is owned by people in the groups....
Harvest Grows argued in a brief that Ohio for nearly 40 years has remedied discrimination in government licensing through set-asides for minority businesses. Hundreds of studies have shown that without the set-asides, “government funds have been, and will be, used in a discriminatory fashion.” It noted that blacks are more than four times more likely than non-minorities to be arrested for marijuana possession, even though studies show marijuana use is almost the same. “The legislature knew about these issues when it created the 15 percent set-aside at issue in this case," Harvest Grows wrote.
The judge, however, sided with Greenleaf Gardens. Schneider relied on a 2003 U.S. Supreme Court case that said a way to examine these issues is by looking at whether there is a compelling governmental interest for racial classification and whether the set-aside is narrowly tailored to achieve the goal.
Schneider wrote that there is a lack of “sufficient evidence of a government compelling interest" because the only evidence the legislature considered were marijuana crime arrests. He wrote that the state didn’t look at arrest rates for racial groups outside of blacks and Latinos, and discrimination in arrest rates and marijuana businesses are different....
The marijuana law’s provisions were different from specifications in Ohio’s Minority Business Enterprise Program, he concluded. And other states' encouragement of minority businesses in their medical marijuana programs were different from Ohio’s, such as Illinois giving minority businesses more points during scoring, not after scoring.
“If the legislature sought to rectify the elevated arrest rates for African Americans and Latinos/Hispanics possessing marijuana, the correction should have been giving preference to those companies owned by former arrestees and convicts, not a range of economically disadvantaged individuals, including preferences for unrelated races like Native Americans and Asians,” he wrote.
The full opinion in Pharmacann Ohio v. Ohio Department of Commerce, 17-CV-10962-Grant-SJ (Ohio Common Pleas Nov. 15, 2018), is available here: Download Pharmacann v. Ohio 17-CV-10962-Grant-SJ