Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, February 11, 2021

"The Effect of State Marijuana Legalizations: 2021 Update"

The title of this post is the title of this recent "Policy Analysis" from the folks at the Cato Institute.  This 40-page document was authored by Angela Dills, Sietse Goffard, Jeffrey Miron, and Erin Partin, and here is its executive summary:

In November 2012, Colorado and Washington approved ballot initiatives that legalized marijuana for recreational use under state law.  Since then, nine additional states (Alaska, Oregon, California, Nevada, Maine, Vermont, Massachusetts, Michigan, and Illinois) plus the District of Columbia have followed suit, either by ballot initiative or legislative action.  Voters in four other states (New Jersey, South Dakota, Arizona, and Montana) approved state ballot measures legalizing marijuana for personal use in the November 2020 election.

Supporters and critics make numerous claims about state-level marijuana legalizations.  Advocates suggest that legalization reduces crime, raises tax revenue, lowers criminal justice expenditures, improves public health, increases traffic safety, and stimulates the economy.  Critics argue that legalization spurs marijuana and other drug or alcohol use, increases crime, diminishes traffic safety, harms public health, and lowers teen educational achievement.

In previous work, we found that the strong claims made by both advocates and critics are substantially overstated and in some cases entirely without support from existing legalizations; mainly, state legalizations have had minor effects.  This paper updates previous work to account for additional years of data and the increase in the number of states with legalized marijuana.  Our conclusions remain the same, but our assessments of legalization’s effects remain tentative because of limitations in the data.  The existing data nevertheless provide a useful perspective on what other states should expect from legalization or related policies.

February 11, 2021 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Tuesday, February 9, 2021

"Cannabis Croynism"

DownloadThe title of this post is the title of this notable new report just released by the Government Accountability Institute.  Here is part of the report's executive summary:

Cannabis legalization in the United States has come a long way . In 1996, California became the first state to legalize marijuana for medicinal use only.  This past November, five more states legalized marijuana, and 47 of the 50 states now allow its recreational or medical use.  While governments this Spring were imposing lockdowns and closures of most businesses, churches and schools to combat the COVID-19 epidemic, marijuana dispensaries joined pharmacies and liquor stores as “essential businesses” that must remain open in California.

While he was the first governor to issue a statewide shelter-in-place order, Governor Gavin Newsom of California kept marijuana available.  Other states would soon follow: Thirty states in total that issued statewide stay-at-home orders would allow dispensaries of some kind, including recreational, to remain open.

While some claim that cannabis dispensaries were truly as important as pharmacies, which also remained open during statewide lockdowns, other factors may have contributed to this decision.  Whatever its medicinal and recreational benefits, cannabis has evolved into a nearly $21 billion industry that lobbies, pressures, and rewards politicians who look out for it.

In August 2019, the FBI announced it was investigating public corruption in the cannabis industry through pay-to-play bribery schemes. This announcement came at a time when the debate in the United States over the pros and cons of legalizing pot had mostly concluded. Officials in many states have routinely ignored federal laws prohibiting the use of marijuana, effectively giving regulatory authority over marijuana to individual states.

There are now far more states where marijuana is fully legal than where it is illegal.  Twelve states have decided through referendum, and two states through legislative action, to legalize recreational use of marijuana.  Just three states – Nebraska, Kansas, and Idaho – still prohibit any use of marijuana, while the remaining forty-seven states have opted for legalization in some form.

With this new authority, state officials must now create specific regulations.  Where states have approved legal marijuana, politicians must make licensing rules for detailing which businesses may distribute such products, and who may purchase them. As with any new market, laws and regulations inevitably will pick the winners and losers in this emerging industry, whose value may be as high as $35 billion by 2025.

As with any economic activity regulated by the government, affected businesses seek an advantage by hiring insiders who have access to those close to the regulatory process.  They also make campaign contributions to well-positioned politicians.

And while most cannabis-related regulatory and legislative action is happening at the state level, some national level political figures have leveraged their positions to make money from cannabis legalization.  For example, in 2017, Paul Pelosi Jr., the son of House Speaker Nancy Pelosi, was named Chairman of the Board of Directors of Freedom Leaf, Inc., a consulting firm advising the budding marijuana industry.  The following year, the company entered the CBD distribution business, while Pelosi purchased more than $100,000 in company stock.

Former Republican Speaker of the House John Boehner, who staunchly opposed legalizing marijuana in Congress, is now bullish on the industry.  “This is one of the most exciting opportunities you’ll ever be part of,” he says in a video announcing his new National Institute for Cannabis Investors.  “Frankly, we can help you make a potential fortune.”  Boehner stands to earn an estimated $20 million if his group succeeds in persuading the federal government to legitimize marijuana.

Still, for now, the states are where most of the action on marijuana distribution is found, and where the greatest threat of political corruption exists.  The Government Accountability Institute (GAI), whose mission is to expose cronyism, reviewed the process related to legalizing marijuana in seven states.  For each state we reviewed, GAI focused on identifying the relationships between policy decisions that benefited advocates of marijuana legalization and the transfer of money and other benefits from marijuana-related businesses and lobbyists to elected officials.

While each state possessed a unique set of circumstances related to legalizing marijuana, our research found striking similarities in how cronyism in these states occurred.  For example, in several states, elected officials and government employees made decisions that ultimately benefited them financially.

February 9, 2021 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Monday, February 8, 2021

State judge declares South Dakota ballot iniative legalizing marijuana invalid for covering "multiple subjects"

This AP article, headlined "South Dakota judge strikes down voter-approved measure legalizing marijuana," reports on a notable state ruling from the Mount Rushmore State.  Here are the basics:

A South Dakota judge on Monday struck down a voter-approved constitutional amendment that legalized recreational marijuana.  Circuit Judge Christina Klinger ruled the measure approved by voters in November violated the state’s requirement that constitutional amendments deal with just one subject.

Lawyers on both sides have said they expect the issue to be appealed to the state’s Supreme Court.

Two law enforcement officers, Highway Patrol Superintendent Col. Rick Miller and Pennington County Sheriff Kevin Thom, sued to block legalization by challenging its constitutionality.  Miller was effectively acting on behalf of South Dakota Gov. Kristi Noem, who had opposed the effort to legalize pot.

Lawyers for the law enforcement officers argued that the ballot initiative violated a rule that constitutional amendments must only address one subject.  They also said that by giving the Department of Revenue the power to tax and regulate marijuana, it improperly elevated the department to a fourth branch of state government.

Lawyers defending legalization dismissed those arguments and said the lawsuit was an effort to overturn the results of a fair election.  About 54 percent of voters approved recreational marijuana.  Possessing small amounts of marijuana would have become legal on July 1, but that will not happen unless a higher court overturns the ruling.

The full ruling is available at ths link.

February 8, 2021 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, February 1, 2021

Key Democratic Senators pledging to soon "release a unified discussion draft" to advance "comprehensive cannabis reform legislation in the 117th Congress"

6a00d8341bfae553ef0223c85155dc200c-320wiThere is notable marijuana reform news from Capitol Hill today, well covered by this Marijuana Moment piece headlined "Democratic Senate Leaders Announce Steps To Federally Legalize Marijuana In 2021."  Here are the basics:

Three leading champions of marijuana reform in Congress said on Monday that the issue will be prioritized in the new Democratic Senate this year and that they plan to release draft legislation in the coming weeks to begin a conversation about what the federal policy change will look like.

Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) said in a joint statement that ending cannabis prohibition “is necessary to right the wrongs of this failed war and end decades of harm inflicted on communities of color across the country,” but that alone “is not enough.”...

This is a narrative that’s been building in recent months, with Schumer saying on several occasions both before and after the election that he would work to move reform legislation with his new power to control the Senate floor agenda. Since Democrats secured a majority in the chamber, the stage is set for action....

Rep. Earl Blumenauer (D-OR), who has spent decades working to end marijuana prohibition and is a co-chair of the Congressional Cannabis Caucus, said in a press release that he’s encouraged that Senate’s new majority is “prepared to move forward together on comprehensive cannabis legislation.” He added that the House-passed Marijuana Opportunity, Reinvestment and Expungement (MORE) Act to legalize marijuana “is a great foundation” for reform in the 117th Congress. The new legislation would likely be referred to Wyden’s panel, the Senate Finance Committee, for consideration once introduced....

Recent comments from the Schumer, the majority leader, indicate that whatever bill is filed will likely include components of multiple pieces of legislation from the last Congress, which he said are actively being merged....

Already in 2021, two congressional marijuana bills have been filed: one to move cannabis from Schedule I to Schedule III of the Controlled Substances Act and another to prevent the U.S. Department of Veterans Affairs from denying veterans benefits solely because they use medical marijuana in compliance with state law.

Read the full joint statement on Senate marijuana reform priorities below:

Washington, D.C. – U.S. Senators Cory Booker, D-N.J., Ron Wyden, D-Ore., and Chuck Schumer, D-N.Y., issued the following joint statement regarding comprehensive cannabis reform legislation in the 117th Congress:

“The War on Drugs has been a war on people—particularly people of color.  Ending the federal marijuana prohibition is necessary to right the wrongs of this failed war and end decades of harm inflicted on communities of color across the country. But that alone is not enough. As states continue to legalize marijuana, we must also enact measures that will lift up people who were unfairly targeted in the War on Drugs.

“We are committed to working together to put forward and advance comprehensive cannabis reform legislation that will not only turn the page on this sad chapter in American history, but also undo the devastating consequences of these discriminatory policies.  The Senate will make consideration of these reforms a priority.

“In the early part of this year, we will release a unified discussion draft on comprehensive reform to ensure restorative justice, protect public health and implement responsible taxes and regulations. Getting input from stakeholder group will be an important part of developing this critical legislation.”

I am pleased to see this reform effort moving forward, and it will be especially interest to see when this unified discussion draft will be released and what provisions it will include. I am inclined to guess that the draft will be public sometime in late March or early April (I hope not on 4/20), and that the draft will look somewhat like, but not exactly like, the MORE bill that made it through the House last year. Interesting times

February 1, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Sunday, January 17, 2021

"Guidance Documents: The Sirens of the Cannabis Odyssey"

The title of this post is the title of this notable new paper authored by Troy Sims recently posted to SSRN.  Here is its abstract:

The growing cannabis industry in the United States has presented both economic opportunity and legal complexity. States that allow medical or recreational cannabis conflict with federal regulations and lawyers who represent cannabis businesses are caught in an ethical maze.  This article discusses an often-overlooked cause of this complexity: guidance documents from the Department of Justice.  The rapid growth of the cannabis industry correlates with a series of memos issued by the Department of Justice, one of which is known as the “Cole Memorandum”, and all of which have been rescinded.  The ambiguities and shortcomings of current administrative law have played a large part in creating the confusing legal status of the cannabis industry.  Resolutions must reflect this reality to adequately address the ethical, financial, and legal problems in the cannabis industry. 

January 17, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, January 8, 2021

Catching up on a remarkable political moment for marijuana reform with the help of Marijuana Moment

Saturday, December 5, 2020

"Cannabis Capitalism"

The title of this post is the title of this new paper authored by Paul Larkin now available via SSRN.  Here is its abstract:

Federal law treats cannabis as contraband, but more than 30 states allow it to be sold for medical or recreational use.  The industry has a unique, quasi-legal status that poses legal, political, and commercial challenges for member businesses.  States with legalized cannabis use allow parties to own the means of production and sale, but supervise the industry by using traditional regulatory tools such as licensing, product quality testing, and taxation.

Yet, those supply-side regulations are not likely to control the harms that cannabis overuse can generate.  Like alcohol and tobacco, marijuana is a consumer good that can harm individual users and third parties.  Supply-side restrictions are also necessary to limit the number of people who overly consume marijuana.  States should assume responsibility for the sale of that product, just as many already do in the case of alcohol.  States should also decline to advertise their own sales of cannabis.  Finally, Congress should require states to assume those responsibilities as a condition of revising the federal Controlled Substances Act to lift the federal ban on cannabis sales.

December 5, 2020 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, December 4, 2020

MORE Act passed by US House, but party-line vote suggests uncertain future for federal reform

As reported in this CNN article, headlined "House passes bill decriminalizing marijuana at federal level," a big vote on federal marijuana reform was conducted today. But the vote reveals the still politically divisive nature of this issue, which will surely impact future reform efforts. Here are details:

The House of Representatives has approved legislation that would decriminalize marijuana and seek to "address the devastating injustices caused by the War on Drugs." Friday's vote in the Democratic-led House is the first time a chamber of Congress has voted on federal marijuana decriminalization. It has little chance of passing the Republican-led Senate, however.

The bill passed largely along party lines: 222 Democrats, five Republicans and Rep. Justin Amash, a libertarian, voted in support while 158 Republicans and six Democrats voted against.

The Republicans who voted for the bill are Florida Rep. Matt Gaetz, the bill's co-sponsor, as well as Reps. Brian Mast of Florida, Tom McClintock of California, Denver Riggleman of Virginia and Don Young of Alaska. The Democrats against were Reps. Cheri Bustos and Dan Lipinski of Illinois, Henry Cuellar of Texas, Conor Lamb of Pennsylvania, Chris Pappas of New Hampshire and Collin Peterson of Minnesota....

The MORE Act would remove marijuana from the Controlled Substances Act and eliminate criminal penalties for individuals who manufacture, distribute or possess marijuana. It also includes creating a process to remove prior convictions, known as expungement, and conduct sentencing review hearings for federal cannabis offenses.

The measure would also authorize a 5% sales tax on marijuana products to invest in services such as job training, legal aid and substance abuse treatment for individuals adversely impacted by the war on drugs. The tax revenue would also provide funds for small businesses loans and allow access to marijuana licensing and employment for economically disadvantaged individuals.

Republican Senate Majority Leader Mitch McConnell this week criticized the House for moving on the bill instead of passing parts of the Covid-19 stimulus bill that both parties agree on. "The House of Representatives is spending this week on pressing issues like marijuana. You know, serious and important legislation befitting this national crisis," McConnell said sarcastically on the Senate floor.

Critics of the bill cite the lack of potential traction in the Senate. "It's an unserious bill that was voted on in an unserious manner and we rest easily knowing there is zero interest in moving this bill in the Senate and zero interest in supporting it in either the current administration or the incoming one," Kevin Sabet, president and co-founder of Smart Approaches to Marijuana, which opposes marijuana legalization, said in a statement....

President-elect Joe Biden supports decriminalizing marijuana and the automatic expungement of prior criminal records for marijuana possession, but not full legalization of the substance, a Biden campaign spokesman said last year. "He would allow states to continue to make their own choices regarding legalization and would seek to make it easier to conduct research on marijuana's positive and negative health impacts by rescheduling it as a schedule 2 drug," Andrew Bates, who is now a spokesperson for the Biden transition, told CNN.

December 4, 2020 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Rounding up a few headlines just before historic vote on MORE Act to end federal marijuana prohibition

I have already highlighted in a prior post, asking "How many House Republicans are going to vote in support of the MORE Act?," what grabs my attention as the US House of Representatives conducts an historic vote on federal marijuana reform today.  But as the vote approaches, I thought it might be worthwhile to flag some media coverage that has caught my eye in recent days:

From Courthhouse News Service, "House Prepares for Historic Vote on Marijuana Decriminalization"

From Fox News, "McCarthy skewers Pelosi over coronavirus relief deadlock as House Dems take up marijuana, 'Tiger King' bills"

From Investor's Business Daily, "Marijuana Stocks Rise Ahead Of Historic Vote To End Prohibition"

From Marijuana Moment, "Conservative Groups Call For Marijuana Legalization Ahead Of House Vote"

From Rolling Stone, "Inside the Weed Legalization Bill Congress Is Voting on This Week"

December 4, 2020 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, December 1, 2020

How many House Republicans are going to vote in support of the MORE Act?

Capitolpot-largeA few months ago there was lots of excitement about the announced plans for the US House of Representatives to vote on H.R. 3884, the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (MORE Act).  But House leadership put off the vote until after the 2020 election, and now excitement is growing again as a vote is being discussed again.  This new Marijuana Moment piece, headlined "House Leaders Propose Changes To Federal Marijuana Legalization Bill Up For Floor Vote This Week," provides an effective accounting of where matters stand.  Here is how it starts:

A key House committee has scheduled a Wednesday hearing to advance a bill to federally legalize marijuana toward a full floor vote, which could then happen as soon as Thursday. Meanwhile, leaders in the chamber are proposing an amendment that would make several changes to the cannabis legislation.  Among the most significant revisions would be to the tax-related provisions of the bill.

The Rules Committee’s move to take up the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act follows Majority Leader Steny Hoyer (D-MD) announcement that the chamber would be holding a floor vote on the bill before the end of the year. 

Judiciary Committee Chairman Jerrold Nadler (D-NY), the lead sponsor of the bill, transmitted it to Rules with the series of modifications—many of them technical in nature. But beyond the tax changes, the newly proposed language also reaffirms the regulatory authority of certain federal agencies such as the Food and Drug Administration (FDA) and clarifies that cannabis can still be included in drug testing programs for federal workers.  Other members of the House are likely to file proposed amendments as well, though the Democratic majority of the Rules panel will determine which ones can be made in order for floor votes later this week.

Because there is zero chance that the MORE Act will move forward in the Senate during this Congress, this House vote may seem mostly symbolic.  (Indeed, this new Politico piece, headlined "Why the next Congress is unlikely to legalize marijuana," highlights why marijuana reform is likely to remain an uphill battle in the Senate even in 2021 and beyond.)  But Jacob Sullum has this new Reason piece, headlined "Will a Historic House Vote on Marijuana Legalization Nudge Biden Toward More Ambitious Reforms?," which rightly suggests the vote could have an impact on Joe Biden and the work of the incoming Biden Administration.  As Sullum puts it, any "historic House vote to repeal [the federal marijuana] ban would allow him to go further than he has so far without sacrificing his cherished reputation as a moderate."

I share Sullum's view that the House lame-duck vote on the MORE Act could prove to be consequential, though my take is that the answer to the question in the title of this post could and likely will prove to be the most important part of the story (perhaps along with how many Democrats vote against the MORE Act).  If the MORE Act passes with only D support, the discourse over federal marijuana reforms is likely to remain quite partisan for the months and years to come.  But if more than a handful of GOP Representatives vote for the MORE Act, it will become that much easier for reform advocates to portray future federal efforts as bipartisan.

Notably, Florida GOP Rep, Matt Gaetz was one of the original 29 co-sponsors of the MORE Act.  The Act now has 120 co-sponsors, but Rep. Gaetz is still the only GOP Rep among that number.  My understanding is that there may be a few more GOP Reps who would ultimately vote for the MORE Act.  But without more than just token GOP support, I doubt even a passing vote on the MORE Act will be as consequential as many reformers might hope.

 

December 1, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, November 30, 2020

"Preventing Industry Abuse of Cannabis Equity Program"

The title of this post is the title of this paper authored by Daniel G. Orenstein recently posted to SSRN.  Here is its abstract:

Enforcement disparities have pervaded the history of U.S. drug control laws, particularly regarding cannabis.  These disparities have systemically disadvantaged persons of color and other communities.  Responding to these inequities, some state cannabis legalization campaigns have emphasized social justice goals, and states and localities have adopted cannabis social equity programs directed toward communities disproportionately impacted by the War on Drugs.  These programs encourage and assist individuals from target communities in entering the legal cannabis industry by offering access to grants, loans, and technical assistance and providing priority or preference in licensure, a significant advantage in a competitive industry. 

Equity programs serve laudable goals but must be structured to mitigate the risk of corporate abuses that threaten public health.  The history of tobacco control in particular offers cautionary examples of how for-profit industries can infiltrate communities by leveraging targeted marketing, building political relationships, and operating disproportionately in underprivileged areas.  Equity programs’ focus on disadvantaged communities may inadvertently allow this damaging history to repeat in the cannabis industry to the detriment of the communities equity programs seek to help.  This Article explores pathways that could lead to industry abuse, surveys possible restrictions within a for-profit market, and assesses options for alternative market structures, including government monopoly, mandatory nonprofit status, and mandatory public benefit company status.  Among these options, compulsory public benefit status offers the best combination of current legal feasibility and advancement of social equity goals. 

November 30, 2020 in Business laws and regulatory issues, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, November 23, 2020

"Trends in Adolescent Treatment Admissions for Marijuana in the United States, 2008–2017"

126027997_3443829359064341_5275240354102147479_n-768x1005The title of this post is the title of this notable new publication from the CDC's Preventing Chronic Disease series authored by Jeremy Mennis.  (Hat tip Marijuana Moment.)  Here are the highlights and action sections that conclude the piece (with some sentences highlighted):

Highlights

The map, visually dominated by blue tones, clearly shows that adolescent treatment admissions for marijuana declined in most of states.  The mean annual admissions rate for all states declined over the study period by nearly half, from 60 (admissions per 10,000 adolescents) in 2008 to 31 in 2017, with state admissions rate slopes ranging from −0.42 to 0.19 (median = –0.28).  State admissions rates in 2008 ranged from fewer than 1 to 218 (median = 52); in 2017 they ranged from fewer than 1 to 167 (median = 21). Admissions rates increased over the study period in only 7 states, 6 of which (excepting North Dakota) have relatively low mean admissions rates (states colored lighter orange).  Low mean admissions rates tend to occur in a loose band extending from the Southwest through the South, Appalachia, and into parts of New England.  All 12 states in the high mean admissions rate class sustained admissions declines, with 10 of those states having declines in the steepest category (states colored darkest blue).  Consistent with prior research on medical marijuana and adolescent marijuana use (12), medical legalization status does not appear to correspond to treatment admission trends.  Notably, however, 7 of 8 states with recreational legalization during the study period fall into the class with the steepest level of admissions decline.

Action

To our knowledge, this map is the first to illustrate state level trends in adolescent treatment admissions for marijuana, and the trends depicted can inform public health responses to changing marijuana laws.  Possible causes for the overall decline, and variations among states, in admissions trends include changes in attitudes toward marijuana, as well as differences among states in marijuana use and incidence of CUD, as well as in socioeconomic status, treatment availability, and health insurance (5).  Whatever the causes of the observed patterns, however, this research suggests that a precipitous national decline in adolescent treatment admissions, particularly in states legalizing recreational marijuana use, is occurring simultaneously with a period of increasing permissiveness, decreasing perception of harm, and increasing adult use, regarding marijuana (4,13).  These trends indicate the need for sustained vigilance in the prevention and treatment of youth CUD during this period of expanding marijuana legalization.

November 23, 2020 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, November 8, 2020

In what states (and how quickly) might we now see marijuana reform through the traditional legislative process?

I mentioned briefly in this post a few days ago that the big wins at the polls for marijuana reform in red and blue states nationwide will surely have all sorts of future reform echoes.  As the question in the title of this post flags, I am especially intrigued to watch, in the short term, developments in various states in which we might reasonably expect the traditional legislative process to now take up reform.

The most obvious answer to the question in the post title flows from the big win for full legalization reform in New Jersey.  That result, for reasons discussed a bit in this prior post, certainly should increase the likelihood of traditional legislative reforms neighboring New York and Pennsylvania and maybe even a few other mid-Atlantic and Northeast states.  I have also seen mentioned that New Mexico might be a lot more likely to move forward with reforms now that legalization prevailed in Arizona.  

But, of course, New Jersey ended up having a ballot initiative this election cycle because its legislature could not agree on a framework for legalization through the traditional legislative process.  New Jersey demonstrated in 2019 that even when a legislature has "the will" for marijuana reform, it might not always readily find "the way."  So even if legislatures in New York and other states now seriously commit themselves to full legalization, turning that kind of commitment into completed legislation can still prove challenging.

One final element to consider here are states that seem likely to have state legalization ballot initiatives in the works for 2022.  In states like Florida, Ohio, Oklahoma and a few others, I wonder if legislatures might have the wisdom and foresight to consider moving forward with reform through the (somewhat controllable) legislative process rather than just allowing reform to be defined by the (advocate controlled) ballot initiative process.  Interesting times.

November 8, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Noticing how marijuana reform contributes to regulator diversity even with much equity work ahead

Download (14)Because there has historically been a general lack of diversity in all sorts of government positions, I would guess that state administrators and regulators have not typically been an especially diverse bunch.  But, when Cat Packer in 2017 was appointed the first Executive Director of the Los Angeles Department of Cannabis Regulation, I started noticing the efforts in some quarters to try to ensure state and local marijuana regulators reflected more of the diversity of our great nation.  (Just some of a number of other notable regulators in this space include Toi Hutchinson in Illinois, Shaleen Title in Massachusetts, Marisa Rodriguez in San Francisco.)

These stories came to mind as I saw this story out of New Jersey from The Root, headlined "America Has Yet to Achieve Racial Equity in Cannabis Reform. New Jersey Is Hoping Dianna Houenou Can Change That."  I recommend the piece in full, and here are excerpts:

[A] third of Americans (more than 111 million total) now live in states where adults can legally purchase pot.  But although reform is sweeping the nation, with dispensaries popping up everywhere from Oakland and Denver to Baltimore and Chicago, America’s “green rush” has yet to substantially uplift the communities most harmed by the country’s devastating “war on drugs.”  Instead, white business-owners and large corporations have disproportionately benefited from cannabis reform, prompting fresh concerns about what the future of marijuana legalization holds for the Black and Latinx communities who suffered the most from America’s punitive drug policies.

New Jersey hopes to change that narrative.  On Friday morning, Gov. Phil Murphy appointed Dianna Houenou, a senior advisor with an extensive background in criminal justice reform, to lead the state’s Cannabis Regulatory Commission, which will be charged with shaping the state’s cannabis laws and ensuring that the communities devastated by the New Jersey’s drug policies reap the benefits of the burgeoning industry.

“Dianna has been a critical voice for social justice and equity on my team for the past year and a half after spending several years working on the fight to legalize marijuana with the ACLU,” Gov. Murphy told The Root in a statement. “Her commitment to doing what is right and to leaving no one behind has powered our criminal justice reform agenda, and I am immensely proud that she will be continuing that commitment as Chair of the Cannabis Regulatory Commission.”

“Since day one, we have said that the legalization of recreational marijuana must prioritize the communities marginalized and decimated by the failed War on Drugs,” Murphy added.  “I know that Dianna is the perfect person to lead our state’s effort to create a marketplace for recreational marijuana that is equitable, fair, and inclusive of all communities.”...

New Jersey is the most populous of all the states that legalized recreational marijuana this week, and the first state in the mid-Atlantic to do so — leading Pennsylvania and New York, where lawmakers have long discussed legalization but have disagreed on how to do so.  In New York, a major part of that disagreement has stemmed from questions around equity and accessibility.  Nationwide, Black and Latinx Americans aren’t leading cannabis operations in significant numbers, nor have they been leading regulation or law-making efforts....

Working to make cannabis reform equitable will be no small task for Houenou and the commission, particularly in a state like New Jersey, where, despite similar rates of marijuana usage, Black people are 3.45 times more likely to be arrested for cannabis possession than white people.  As recently as 2016, the Garden State spent $669.3 million to enforce restrictive drug policies, “despite the grave racial inequities in fuels,” writes Insider New Jersey.

Because the country has yet to really get equity in the cannabis industry right, Houenou will be leading New Jersey into uncharted territory.  But if successful, the state could very well be a model for the region and the country at large.

Houenou isn’t going it alone.  She has the full support of Gov. Murphy, who made marijuana legalization a signature part of his 2017 election campaign.  She also understands that making cannabis reform truly equitable will be a holistic process requiring education, advocacy and buy-in from a variety of stakeholders, from law enforcement to those who lost years of their lives to drug prohibition policies.  For her and the commission, equity won’t be an afterthought, as it has been in other places.  “We really are looking to make sure that equity is built into a regulated structure at the onset,” she said.

Houenou stresses that under her leadership, nothing would be off the table for the commission.  This includes policies already existing in other places, including prioritizing permits for those who live in neighborhoods impacted by harsh drug policies, as well as individuals who have been entangled in the court system specifically for cannabis offenses. But she’s also interested in exploring — and breaking down — other barriers to entry and ensuring that revenue from these burgeoning businesses goes back into Black communities.

November 8, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Saturday, November 7, 2020

What a difference a decade makes: recalling marijuana reform efforts in 2010 California and now in 2020 South Dakota

Talking to one of my favorite people about the greatness and unpredictability of democracy in the USA, I realized that it is worthwhile to put the amazingly consistent pro-reform marijuana election results of 2020 in a bit of historical context.  For now, I will leave it to true historians to write on a broader canvas, as I just want to highlight what a difference a decade makes. 

The first very significant and well-funded campaign for statewide marijuana legalization took place in deep blue California in 2010.  Then and there, California Proposition 19 lost pretty badly with 53.5% of California voters being against legalization, and only 46.5% being in favor.  Notably, among the folks in avowed opposition to this reform were US Senators Barbara Boxer and Dianne Feinstein, then-Democratic gubernatorial candidate Jerry Brown, then CA Gov Arnold Schwarzenegger, then-Democratic Attorney General Candidate Kamala Harris, and then-Prez Obama's Attorney General Eric Holder and his drug czar Gil Kerlikowske

Fast forward only 10 years, and we have seen extraordinary political, legal and social developments on so many fronts related to marijuana prohibition, and perhaps this is no more clear than the results in deep red South Dakota in 2020.  This year the voters in South Dakota considered both Initiated Measure 26 to legalize medical marijuana, which passed by a vote of 70% for and only 30% against, and a state constitutional amendment for full legalization, which passed by a vote of 54% for and only 46% against.  To my knowledge, there were precious few political figures who spoke out in avowed opposition to either of these reforms, and I am certain that Prez Trump's Attorney General did not weigh in on these state marijuana reform ballot measures.

This is a truly remarkable political and legal story, though perhaps even more remarkable is that we have seen no formal federal legislative reforms in this arena even over a decade of extraordinary change.  I will (not-so-boldly) predict that we will see some form of federal statutory reforms over the next decade, but I am not at all confident about just when or what these reforms might look like.  I will predict that 2010 CA Democratic Attorney General Candidate Kamala Harris, who is now in 2020 Vice President Elect Kamala Harris, might end up having a lot of impact on this matter.

November 7, 2020 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, November 4, 2020

Some (too early) speculations on the (uncertain) future of marijuana reform after big state wins Election Night 2020

Ballot-map-type2-minAs of Wednesday morning after a very long 2020 Election Night, there is a lot which remains uncertain politically, but one matter is quite clear: marijuana reform is very popular all across the United States.  As noting in this post last night, marijuana reform ballot initiatives prevails by pretty large numbers in states as diverse as Arizona, Mississippi, Montana, New Jersey and South Dakota.   This Politico article, headlined "1 in 3 Americans now lives in a state where recreational marijuana is legal," provides some political context:

New Jersey and Arizona, with 8.9 million and 7.3 million residents, respectively, are the biggest wins for advocates this year.  Legalization in New Jersey is expected to create a domino effect for legalization in other large East Coast states, including Pennsylvania and New York.

South Dakota, Montana and Mississippi, while much smaller, are significant in another way: As red states, the passage of marijuana measures illustrates the shift in Republican sentiment toward marijuana.

The impact of these ballot measures will be felt in Congress, especially if Democrats regain control of the Senate.  If all the measures ultimately pass, a third of House members will represent states where marijuana is legal, as will a fourth of the Senate.  If Democrats end up in control of both chambers next year, expect those legal state lawmakers to be called upon to vote on significant changes to federal marijuana policy — including removing all federal penalties for using it.

As of this writing, it is still unclear who will be in the White House for the next four years, but it seems increasing clear that Democrats will not be in control of the Senate.  This reality leads me to speculate that, despite the big 2020 state ballot wins, it will still be quite challenging for Congress to move forward with any significant federal statutory marijuana reforms.  Whether to pursue a modest or major form of federal reform already divides Democratic lawmakers in various ways, and I doubt that Republican leadership in the Senate will be eager to prioritize or even advance various bills on this topic.  If the person in the White House decides he wants to focus on this issue, these political realities could surely change.  But, at this moment, it seems to me unlikely that a large number of lawmakers at the federal level will be keen to prioritize these matters in the short term.

But continued non-action at the federal level could actually make even more space for state-level reforms to continue apace.  As the Politico excerpt highlights, the outcome in New Jersey should increase the likelihood of traditional legislative reforms in states like New York and Pennsylvania and maybe other northeast states.  Also, the big ballot wins in red states in 2020 also makes even more likely that there will be ballot initiatives for full legalization or medical marijuana reform in a half-dozen or more states in the coming years.  Just off the top of my head, I count Arkansas, Florida, Idaho, Missouri, Nebraska, North Dakota, Ohio and Oklahoma as all real possibilities for state initiatives perhaps as early as 2022.

November 4, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, November 3, 2020

"From Medical to Recreational Marijuana: Lessons for States in Transition"

The title of this post is the title of this exciting and timely new report authored by Dexter Ridgway and Jana Hrdinova of The Ohio State University's Drug Enforcement and Policy Center.  (The full glossy version of the report is at this link, an SSRN version can be found at this link.)  Here is the report's abstract:

As of October 2020, eleven states and the District of Columbia have undergone a transition from medical to adult-use marijuana regimes navigating the creation of a new industry within a complex and incongruous legal framework.  The collective experience of these states has created a wealth of lessons for other states that might legalize adult-use marijuana in the future.  Yet not much has been written about the process of transition and how states managed the creation and implementation of the regulatory framework for an emerging industry.

This report, which draws on interviews with current and former government officials, aims to fill this gap by documenting lessons learned and decision-making behind the policies that shaped the recreational landscape in four states: Colorado, Michigan, Nevada, and Oregon.  The purpose of this research is to provide actionable and concrete advice to states that are transitioning, or are planning for a transition, from a medical marijuana regime to an adult-use or recreational framework.  The report highlights major decision points states face in their transitions and the pros and cons of each choice, lessons learned gathered from the participants in our study, and a short discussion of major challenges each state had to face with their respective programs.y 

November 3, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, October 30, 2020

"Weed, Dogs & Traffic Stops"

The title of this post is the title of this new article recently posted to SSRN and authored by Alex Carroll.  Here is its abstract:

The Supreme Court has long characterized a dog sniff as a binary investigative technique.  For nearly four decades, the Court has held that a dog sniff conducted during a routine traffic stop is not a Fourth Amendment “search” because it reveals only the location of an illegal substance.  Marijuana, however, is now legal in thirty-four states. Accordingly, this Article closely reexamines the Fourth Amendment’s treatment of dog sniffs.

In doing so, it makes three overarching arguments.  First, a dog sniff conducted during a routine traffic stop is a nonbinary type of investigative technique in states that have legalized recreational or medicinal marijuana.  Second, a dog sniff conducted during a routine traffic stop is a Fourth Amendment “search” in those same states.  Third, law enforcement agencies operating in those states must retrain or replace their drug-detection dogs.

Moving forward, the Article further demonstrates, law enforcement agencies will encounter significant challenges associated with retraining or replacing their drug-detection dogs.  It therefore concludes by providing law enforcement agencies with ways to mitigate those challenges.  At its core, this Article offers the judiciary and law enforcement profession with a constitutional path forward.

October 30, 2020 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, October 5, 2020

Noting a notable decline in marijuana arrests in 2019 according to FBI data

As always, the folks at Marijuana Moment have lots of great timely coverage about lots of timely marijuana reform topics.  But as one especially interested in the intersection of criminal justice and marijuana reform issues, I found this piece from a few days ago especially worth noting:

Marijuana arrests in the U.S. declined in 2019 for the first time in four years, a new federal report shows.  While many expected the state-level legalization movement to reduce cannabis arrests as more markets went online, that wasn’t the case in 2016, 2017 or 2018, which each saw slight upticks in marijuana busts year-over-year.  But last year there was a notable dip, the data published this week shows.

There were a total of 545,601 marijuana arrests in 2019 — representing 35 percent of all drug arrests — according to FBI’s Uniform Crime Reporting program.  That’s down from 663,367 the prior year and 659,700 in 2017.  Put another way, police across the country made a cannabis bust every 58 seconds on average last year.  Of those arrests, 500,394 (92 percent) were for possession alone.

“A decline in cannabis related arrests is better than seeing an increase for a fourth year in a row, but the amount of these arrests is still abhorrent,” Marijuana Policy Project Executive Director Steve Hawkins told Marijuana Moment.  “There is no reason to continue punishing adults for consuming a substance that is less harmful than alcohol. Arresting adult cannabis consumers has a dramatically disproportionate impact on communities of color, is a massive waste of law enforcement officials’ time and resources and does nothing to improve public health or safety.”...

“At a time when a super-majority of Americans support marijuana legalization, law enforcement continues to harass otherwise law abiding citizens at an alarming rate,” NORML Political Director Justin Strekal told Marijuana Moment.  “Now is the time for the public to collectively demand that enough is enough: end prohibition and expunge the criminal records to no longer hold people back from achieving their potential.”

While there’s no solitary factor that can explain the recent downward trend in cannabis cases, there are one-off trends that could inform the data.  For example, marijuana possession arrests fell almost 30 percent in Texas from 2018 to 2019, and that seems to be connected to the legalization of hemp and resulting difficulties police have had in differentiating the still-illegal version of the cannabis crop from its newly legal non-intoxicating cousin.

At the federal level, prosecutions for marijuana trafficking declined in 2019, and drug possession cases overall saw an even more dramatic decline, according to a report published by the U.S. Sentencing Commission in March.  Federal prosecutions of drug-related crimes increased in 2019, but cases involving marijuana dropped by more than a quarter, according to an end-of-year report released by Supreme Court Chief Justice John Roberts in December.

October 5, 2020 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, September 8, 2020

"Building a Better Marijuana Tax"

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

Eleven states and the District of Columbia have passed legislation legalizing adult possession and use of marijuana.  Of those twelve jurisdictions, only eight of those jurisdictions have active markets where the substance can be legally bought and sold, and each imposes a different taxation scheme on the flow of marijuana goods in the marketplace.  This paper analyzes each tax base and then proposes a bifurcated recreational marijuana tax scheme for states that are currently thinking about legalization: (i) tax flower, bud, and trim based on weight; and (ii) tax concentrates, edibles, oils, and other “distilled” marijuana products based on potency, currently measured by THC content.

The idea behind taxing by potency is two-fold: first, the state may pursue public health goals by nudging consumers away from high-potency forms of marijuana – and prevent producers from gravitating even more strongly toward high-potency goods; second, taxing by potency may help normalize the recreational use of marijuana by encouraging society to treat marijuana more like other legal drugs such as alcohol and cigarettes.  While no tax scheme is perfect, a hybrid weight/potency base combined with a sunset provision to allow further research on the area appears to be the ideal way to regulate marijuana at this moment in time.

September 8, 2020 in Business laws and regulatory issues, Recreational Marijuana Commentary and Debate, Taxation information and issues , Who decides | Permalink | Comments (0)