Friday, January 14, 2022
Natalie Fertig has this great new (and lengthy) article in Politico Magazine about the persistent challenges posed by illegal marijuana market in a country that for now has only half-legalized the cannabis plant. The full title of this piece highlights its themes: "‘Talk About Clusterf---’: Why Legal Weed Didn’t Kill Oregon’s Black Market. Legalization was supposed to take care of the black market. It hasn’t worked out that way." I recommend the piece in full, and here are excerpts:
People have grown marijuana illegally in southern Oregon for at least half a century. It was easy to conceal illicit activity in private woods and national forests when the nearest human could easily be a few miles away. But there’s nothing hidden about what’s going on now.
The Red Mountain Golf Course, a 24-acre plot of land just outside Grants Pass, the county seat, sold for just over half a million dollars in June 2021. Three months later, Josephine County Sheriffs and Oregon State Troopers raided the former golf course and seized more than 4,000 marijuana plants and arrested two people on charges of felony marijuana manufacture. It wasn’t an isolated incident. Around the same time, law enforcement seized 380 pounds of processed marijuana stuffed in a car abandoned at the scene of a crash. Cops also seized 7,600 marijuana and hemp plants, 5,000 pounds of processed marijuana and $210,000 in cash from two grow operations just outside Cave Junction. Two men were arrested and held for unlawful manufacture of a marijuana item and other charges.
While these eye-popping figures draw headlines, the raids are just a cost of doing business for the cartels, according to law enforcement officials. Many buy or lease six or seven properties, knowing that some might get shut down by the police. Like any smart entrepreneurs, the cartels budget for those losses....
The proliferation of unlicensed cannabis farms is scaring local residents and scarring the landscape. Personal wells have run dry and rivers have been illegally diverted. Piles of trash litter abandoned grow sites. Locals report having knives pulled on them, and growers showing up on their porches with guns to make demands about local water use. Multiple women say they’ve been followed long distances by strange vehicles. Locals regularly end conversations with an ominous warning: “Be careful.”...
Earlier in the year, the legislature passed a bill, sponsored by Republican state Rep. Lily Morgan, that increased penalties for growing cannabis illegally and gave state regulators the authority to investigate hemp growers.
Jackson County Sheriff Nate Sickler says the tougher rules for hemp cultivation and the money lawmakers funneled to local enforcement efforts are an excellent start. “If we’re able to get our positions funded, I really think we can make a significant impact [on] illegal marijuana,” said Sickler. “Are they going to go away? It’s probably never going to happen.”...
There are as many suggested solutions to southern Oregon’s weed problem as there are factors creating it. Some say tweaks to federal and state hemp regulations — and more money for law enforcement — will get the illicit grows under control. Others argue that only federal decriminalization will solve the problem, because it would reduce the market for illicit weed. Anti-legalization advocates, meanwhile, point to Oregon’s woes as proof that legalization doesn’t live up to its promise of eliminating the illicit market.
Friday, January 7, 2022
Pleased to see The National Jurist include "cannabis law" on list of "20 hottest law jobs for the next decade"
Thanks to Paul Caron's posting, I just saw that the latest issue of The National Jurist has an extended feature headlined "20 hottest law jobs for the next decade" which makes mention of cannabis lawyering. Here is a bit of the piece's preamble along with its short discussion of "Cannabis Law":
Crystal balls are hazy, but we’re following the trends to predict which practice specialties will be most in demand.... What’s next on the horizon? That’s a tough question, but it’s not impossible to predict.
We turned to top experts, the three authors of “Law Jobs: The Complete Guide,” to get their opinions on which fields show the most promise. They know their stuff. In their book, they identify hundreds of specialties and sub-specialties.
The most pertinent advice from the authors: “While it makes sense to take a close look at hot specialties, the most important thing is to find a job that fits one’s personality, passions and values. Our book gives readers the information about the pros and cons of each major career type in order for people to find their fit.”
The authors are: Andrew McClurg, professor emeritus of The University of Memphis-Cecil C. Humphreys School of Law; Christine Nero Coughlin, a professor at Wake Forest University School of Law; and Nancy Levit, a professor at University of Missouri-Kansas City School of Law. They offer personal and professional advice on the 20 hottest practice areas.
Cannabis Law by ANDREW McCLURG
Legal job experts are high on the emerging area of cannabis law. Yes, pun intended. Seriously, nearly all lists of hot legal specialty areas include cannabis law. Makes sense. A majority of Americans now live in states where marijuana is allowed for recreational and/or medical use.
Legal marijuana is a heavily regulated area, and laws vary considerably from state to state. Because everything is new, regulators are struggling to interpret the rules as they go. Throw in the fact that marijuana remains illegal under federal law and you have plenty of potential pitfalls that require lawyers. A mistake can result in criminal prosecution for your client, and maybe for yourself.
Cannabis law is a blend of areas, including administrative law, banking law, entity formation, intellectual property, tax law and venture capital. Because it requires knowledge of so many areas, most cannabis lawyers work in small specialty firms or in specialty groups within large firms. It’s a competitive niche field, not something to dabble in. Even though the area is expanding, jobs aren’t ever going to be as widely available as in traditional fields.
I think this description is generally sound, as is the full list of job areas on the list of 20 including sound and obvious choices like health law and environmental law and immigration law and M&A. But I did find it notable that just about every other "hot" jobs area of law was one that just about every law school has at least one and often multiple courses in the subject. But, as my Center has highlighted in recent reports (see here and here to download), only a handful of law schools regularly teach classes on cannabis law.
Thursday, December 30, 2021
From Marijuana Moment, "Here Are The Biggest Marijuana, Psychedelics And Drug Policy News Stories Of 2021"
I recommend both of these pieces in full, but I will here highlight a few of the top-10 from the NORML review that gives particular attention to my concerns about the intersection of marijuana reform and criminal justice.
#1: Five More States Enact Adult-Use Legalization Laws
Legislatures in five states — Connecticut, New Jersey, New Mexico, New York, and Virginia — enacted laws in 2021 legalizing adult-use marijuana possession and regulating retail cannabis markets. These legislative victories marked a significant change from past years, when similar laws were enacted almost exclusively via citizens’ initiatives, not by legislative action. In total, 18 states — comprising nearly one-half of the US population — have now adopted laws regulating adult use marijuana production and retail sales.
“State lawmakers have learned that advocating for adult-use legalization laws is a winning political issue that is popular with their constituents, regardless of their age, race, or political affiliation,” NORML’s Deputy Director Paul Armentano said.
#2: State Officials Vacate Over Two Million Cannabis Convictions
Officials in multiple states have moved to either expunge or seal the records of over two million people with cannabis convictions. Specifically, officials in New York announced vacating an estimated 400,000 convictions. In Virginia, officials have similarly taken steps to seal some 400,000 convictions. In New Jersey, officials have expunged over 360,000 marijuana-related convictions. Officials in Illinois have vacated an estimated 500,000 cannabis convictions, while California officials have expunged over 200,000 convictions. In all, more than a dozen states have enacted legislation in recent years facilitating the process of having past marijuana convictions either expunged or sealed from public view.
In December, US Representatives Dave Joyce (R-OH) and Alexandria Ocasio-Cortez (D-NY) introduced federal legislation to provide funding to state and local governments for the purposes of expunging the records of those with marijuana-related convictions. Following the bill’s introduction, NORML’s Political Director Justin Strekal said, “This bipartisan effort represents the growing consensus to reform marijuana policies in a manner that addresses the harms inflicted by prohibition. There is no justification for continuing to prevent tens of millions of Americans from fully participating in their community and workforce simply because they bear the burden of a past marijuana conviction.”....
#4: Marijuana Arrests Decline Precipitously
The number of persons arrested in the United States for violating marijuana laws declined 36 percent between 2019 and 2020, according to data released in September by the US Federal Bureau of Investigation. According to the agency, police made an estimated 350,150 arrests for marijuana-related violations in 2020. That total is down more than 50 percent from peak levels in 2008, when police made over 800,000 marijuana-related arrests. Marijuana-related arrests were least likely to occur in 2020 in western states — most of which have legalized the possession of the substance.
“As more states move toward the sensible policy of legalizing and regulating cannabis, we are seeing a decline in the arrest of non-violent marijuana consumers nationwide,” NORML’s Executive Director Erik Altieri said. He added, however, “While these numbers represent a historic decline in arrests, even one person being put into handcuffs for the simple possession of marijuana is too many.”
Wednesday, December 29, 2021
The title of this post is the title of this paper recently posted to SSRN and authored by Philip Ewing, a student at The Ohio State University Moritz College of Law. (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.) Here is this latest paper's abstract:
As marijuana is quickly gaining legal status in an increasing number of states throughout the United States, states are faced with choices to make about how they will regulate the industry. One aspect of the regulatory scheme that states must implement is how they will allow businesses to be structured, specifically with regards to vertical integration. Vertical integration is a business structure where a company controls more than one aspect of a business, such as maintaining control over their suppliers, distributors, and retail locations. This allows companies to reduce overhead and reduce costs. Some states mandate that marijuana businesses must be completely integrated, controlling the business from “seed to sale,” others allow vertical integration but do not require it, and some states prohibit vertical integration. This paper will explore vertical integration and how it currently exists in the cannabis industry, detail current trends in state regulations regarding vertical integration, and evaluate policy considerations for the various regulatory approaches.
Monday, December 27, 2021
Looking back and forward suggests pessimism (with a hint of hope?) for federal marijuana reform in 2022
A couple of notable new commentaries on federal marijuana reform caught my eye recently. This first one is by Alex Shephard at The New Republic under this full headline: "Legalize It, Already!: Biden needs to ditch his old-fashioned ideas about marijuana and realize that legalization is a winning bipartisan issue — something he desperately needs in 2022." This piece is more about marijuana politics than policy, and here are a few passages with an emphasis on the White House:
“You would think that President Biden would embrace legalization, considering where his constituents are on this issue,” Chris Lindsey, legislative analyst at the Marijauna Policy Project, told me. Per a recent Pew survey, 60 percent of Americans favor full legalization, while 31 percent favor legalizing marijuana for medical use only, meaning that a whopping 91 percent of Americans are in favor. And while several states have relaxed laws or fully legalized weed, the federal government is trailing....
Given the general sense of inertia in Congress, there are other less far-reaching but still important things the Biden administration could do. The Cole memo, issued by Eric Holder in 2013 and revoked by Jeff Sessions five years later, instructed U.S. attorneys not to enforce federal marijuana laws. That memo could be reinstated and even expanded to other departments. Biden could offer clemency to people currently imprisoned for nonviolent cannabis-related offenses and pardons for them and those who have been released.
All of this would be better politically and morally, and in policy terms, than what Democrats are doing now. “You would think that President Biden would embrace legalization, considering where his constituents are on this issue,” Lindsey told me. “There’s really no question [about] the level of support that they have, and yet the president seems to be AWOL.” After a year ending with political and legislative inertia — and with Biden’s tanking poll numbers, particularly among young people — marijuana policy would be the perfect place to start.
This second one is by John Hudak at Brookings under the headline: "The numbers for drug reform in Congress don’t add up." This piece effectively details some political cross-currents thwarting reform progress in Congress. It should be read in full, and here are some highlights:
Often, in a legislative body, the issue is not whether a law should be reformed, but how that law should be reformed. And there’s the rub for federal legalization legislation. Liberals and progressives in the Democratic Party cannot agree with moderate and libertarian Republicans on what cannabis reform should look like, even if majorities agree that the law should be changed. And as pro-cannabis reform members from both sides dig their heels in on the importance of provisions that are close to their heart (and the heart of their base), it makes assembling that coalition impossible....
It is clear that as a legalization bill shifts away from a pro-business direction, the number of Republican supporters plummets. And while in a Democratic-controlled House, leadership can muster the votes to pass something like the MORE Act, the requirement to beat a filibuster in the Senate makes passage of more social equity and racial justice-oriented comprehensive legislation an impossibility. It is not clear if Democrats can even keep all 50 of their Democratic members in line for such a vote, and it is a certainty that they cannot attract the 10 or more Republicans necessary to clear the 60-vote hurdle. And more moderate legislation that could attract more Republicans will likely lose the more progressive members of the Senate Democratic Caucus....
Ultimately, cannabis reform supporters inside and outside of Congress need a reality check about the state of play of current cannabis reform proposals, and what additional complications the future may offer. Regardless of the chosen path forward, there will be naysayers, holdouts, resistance, and anger. There will be accusations of bloated government or not doing enough to reverse the effects of the drug war. That is standard for an interest group environment on a passionate issue in a deliberative body. However, in the end, Congress has a choice between doing nothing and letting prohibition win the day and allowing all of the consequences of that to remain. Or doing something short of perfect, that addresses some of the real harms that drug prohibition has created in this country.
Looking for a hint of hope in these stories, I am drawn to notion that, if the Biden team concludes that Congress is unlikely to get much (if anything) done on this front in 2022, it might look for "safe" executive action that serves as a political winner in this space. And, as I see it, a clemency initiative focused around certain marijuana offenders — maybe not one as robust as urged by many advocates, but still impactful — could be a huge political winner.
Frustratingly, I know I am projecting a vision of what I hope will happen soon, not an account of what seems likely in the short term (or even long term). But I really want to believe there are "safe" and smart and impactful ways for Prez Biden to start leaning in to this issue at least a bit more. And at some point he has to at least try in some way to deliver on his 2020 campaign promise to "Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions."
UPDATE on 12/28: I see that the Wall Street Journal now has this new article in a similar vein discussing the challenges of federal marijuana reform under this full headline: "Cannabis Overhaul in Washington Is Only Getting Harder: Legalization agenda could be complicated by states that want to defend their nascent marijuana industries and associated tax revenues."
December 27, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Thursday, December 16, 2021
The title of this post is the title of this paper recently posted to SSRN and authored by Jesse Plaksa, a student at The Ohio State University Moritz College of Law. (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.) Here is this latest paper's abstract:
In 2012, Colorado was among the first states to legalize marijuana for recreational use, coming only second to Washington by four days. However, Colorado was the first state to begin selling recreationally. Thus, interested parties immediately began looking to Colorado’s experiment to help determine what exactly happens when a state begins regulating marijuana like alcohol. Any major policy change will have many wide-ranging effects.
This paper will examine a variety of those effects, including the effects on crime, use of other illicit drugs, policing, health, and economic effects. The effects on crime are not clear because there are conflicting reports showing crime has gone down, but others show a neutral effect on crime. Legalization does not seem to affect clearance rates of crimes, as proponents often argue it would. It is not yet clear whether marijuana legalization lowers opioid overdose deaths, though researchers would expect that some opioid users would use marijuana instead. Additionally, legalization appears to have little to no effect on traffic accidents and fatalities. Legalization also added a substantial amount of new jobs to Colorado’s economy and brings in substantial revenue with Colorado’s high tax rate on marijuana sales.
Marijuana is still federally illegal, being a schedule I drug along with heroin, but states have pushed forward with little to no interference from the federal government. Colorado has paved the way by showing that legalization can, at the very least, bring in much-needed revenue via taxes. By being aware of the possible effects of legalization, state lawmakers and citizens can be better informed to make decisions for their own states. Additionally, the federal government can look to Colorado as an experiment that it can then learn from to better decide whether to make any changes at the federal level. Given that Pew polls show around two thirds of Americans favor legalization, a close look at the consequences of such a policy is warranted.
December 16, 2021 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Taxation information and issues | Permalink | Comments (0)
Tuesday, December 7, 2021
The title of this post is the title of this notable new paper available via SSRN and authored by Shaleen Title. (Shaleen Title served as one of five inaugural commissioners of the Massachusetts Cannabis Control Commission from 2017 to 2020, and this year has been serving as the Distinguished Cannabis Policy Practitioner in Residence at the Drug Enforcement and Policy Center.) Here is the abstract for this paper:
As states and local jurisdictions implement new laws legalizing marijuana, many have charged regulators with the worthy goal of remedying the injustices of the drug war, a concept known as social equity. Broadly, social equity falls into a few core policy categories: criminal justice reforms, including automatic expungement of past cannabis offenses; reinvesting a percentage of marijuana tax revenue into the most impacted communities; and — the focus of this paper — creating a cohesive cannabis industry licensing framework with special considerations for people affected by the war on drugs.
So far, no program has successfully achieved its social equity goals as originally envisioned. But as each new state studies and incorporates the experiences of those that previously tried, we are seeing remarkable progress with respect to the involvement, inclusion, and support of people who have experienced disproportionate harm from prohibition. This paper is designed to equip readers with practical advice about how to implement social equity. There are three large policy areas regulators have to address as they begin to design a comprehensive social equity policy for their state’s cannabis industry: policies around what makes an individual or an entity a social equity applicant, policies around what benefits a social equity applicant should have access to, and licensing policies that will support your community’s social equity goals.
December 7, 2021 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Sunday, November 21, 2021
"New GOP weed approach: Feds must ‘get out of the way’" ... which is an important historic drug policy theme
The first part of the title of this post is the headline of this notable new Politico piece, and the second part draws on this recent short book review that I recently authored for The Federalist Society blog. I was reviewing Judge Jeffrey Sutton’s majestic Who Decides, in which the judge richly develops and documents why “some matters should not be nationalized” while urging a “renewed appreciation for the virtues of localism.” In my (too brief) review, I stressed the importance of these localism themes for drug policy throughout US history, and I highlighted this fascinating 1921 Atlantic piece by journalist Louis Graves discussing how alcohol prohibition most effectively gained adherents from a “gradual building up of dry sentiment" at the local level until “Federal interference ... dealt a blow to the cause of real prohibition.”
With Judge Sutton's book and my own affinity for ever-evolving political realities, the long Politico piece by Natalie Fertig and Mona Zhang provides an effective accounting of some structural issues in play in the modern marijuana reform discourse. I recommend the article in full, and here are excerpts:
Republicans are warming to weed. Nearly half of Republican voters support federally decriminalizing cannabis, and GOP lawmakers are now beginning to reflect their constituents’ view by increasingly supporting broad legalization at the state and federal level.
“We need the federal government just to get out of the way,” said Rep. Nancy Mace (R-S.C.), who introduced the first Republican bill in Congress to decriminalize marijuana this past week and pointed to more than 70 percent of Americans supporting the idea.
Stronger Republican involvement could hasten a snowball effect on Capitol Hill, where Democrats lead the charge on decriminalization but lack results. It could also chip away at Democrats’ ability to use cannabis legalization to excite progressives and younger voters as the midterms approach.
“When the culture becomes more accepting of something, even the most resistant groups get tugged along,” said Dan Judy, vice president of North Star Opinion Research, which focuses on Republican politics. “I don't want to directly conflate marijuana legalization with something like gay marriage, but I think there's a similar dynamic at play.”
Earlier this year, North Dakota’s GOP-dominated House passed a marijuana legalization bill introduced by two Republican lawmakers — the first adult-use legalization bill to pass in a Republican-dominated chamber. And Mace's bill marks the first time a Republican has proposed federal legislation to decriminalize cannabis, expunge certain cannabis convictions and tax and regulate the industry.
As Republicans wade into the weed group chat, they are bringing their principles, constituents and special interest groups. When Mace introduced her bill on a freezing day on the House triangle, she was surrounded at the podium not by Drug Policy Alliance and the National Organization for the Reform of Marijuana Laws, but by veterans groups, medical marijuana parents, cannabis industry lobbyists and Koch-backed Americans For Prosperity.
Many GOP proposals include lower taxes and a less regulatory approach than Democratic-led bills, while often maintaining elements popular among most voters, like the expungement of nonviolent cannabis convictions. “I tried to be very thoughtful about what I put in the bill that would appeal to Democrats and Republicans,” Mace said in an interview on Monday. “Which is why criminal justice reform is part of it. It's why the excise tax is low.”
The motivations bringing Republicans to the table are also changing. Former Capitol Hill cannabis advocates like Sen. Cory Gardner (R-Colo.) and Rep. Dana Rohrabacher (R-Calif.) advocated primarily for their state legalization programs, but Mace comes from South Carolina — a state with no medical or recreational cannabis program. She joins other GOP lawmakers who are pushing for federal policy to move beyond their own states — they include Reps. Matt Gaetz and Brian Mast of Florida, where only medical marijuana is legal, and libertarian-leaning Sen. Rand Paul of Kentucky, which does not yet have a medical program....
Six in 10 younger GOP voters — what Pew described as the “Ambivalent Right” in a recent report — believe marijuana should be legal for medical and recreational use, but older, educated Republicans and Christian conservatives do not feel the same way....
Republicans who support legalization are viewing the issue through the prism of states' rights, personal freedom, job creation and tax revenue. Many libertarian-leaning Republicans are early supporters of cannabis policy reform, arguing that arresting people for using cannabis is a violation of personal liberties.
Some Republicans also cite the racial disparities in marijuana arrests as a reason to fix federal law — though Democrats focus more strongly on criminal justice reform on the whole. And, as is the case for Democrats, the shift is often generational: Texas Young Republicans announced they support marijuana decriminalization back in 2015.
The shift within the GOP at times is less about lawmakers’ own beliefs about marijuana and more about how much the public has shifted on the subject. Bill sponsors in North Dakota, for example, said they were personally opposed to marijuana, but introduced the bill anyways to head off the possibility of a ballot initiative that would legalize marijuana through the constitution — especially after South Dakota voters approved legalization in 2020.
November 21, 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)
Monday, November 8, 2021
Regular readers are familiar with my regular posts highlighting papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center. I am excited to now be able to highlight another version of one of these papers resulting from DEPC's partnership with the Reason Foundation to turn student work into extended policy briefs. Nathaniel Wilson, a student at The Ohio State University Moritz College of Law, has this new full policy brief completed under the full title "New Market Entrants and Uncertain Drug Policy in the United States: Kratom and Delta-8 THC Illustrate Tradeoffs." Here is part of the brief's introduction:
This brief focuses on two substances that ... are each regularly sold to consumers across the country and are gaining in popularity, especially among younger demographics. Delta-8 THC is a relatively new phenomenon that has been introduced into consumer markets across the country, though it has been a known derivative of the cannabis plant for decades. The brief will discuss the legality of delta-8 THC, including the significant role of the 2018 Farm Bill, in this analysis. Additionally, it examines whether or not delta-8 THC is truly legal at the federal level today and provides a forward-looking analysis as to any potential changes that are likely to come in the future. This brief then explores concerns that a business has to contend with if it wants to manufacture and sell delta-8 products, as well as the policy considerations for regulators who want to focus their sights on these particular products. After discussing delta-8, this brief turns to kratom, a substance similarly besieged by incoherent government policy as it gets regularly sold to consumers across the country. Kratom, which is marketed as an herbal supplement, is another substance that has been around for a long time but has seen a recent rise in interest for its potential recreational and therapeutic applications. As with delta-8, this brief discusses the legal environment surrounding kratom, as well as the policy considerations that must factor into an effective regulatory scheme for this particular substance. The concluding discussion forges the overall approach that should be taken when dealing with new market entrants in these “underground” markets.
Friday, November 5, 2021
The title of this post is the title of this exciting event taking place online two weeks from today that I have the honor of moderating. As detailed at this registration page, the event will take place on Friday, Nov. 19, 2021 from Noon - 1:30pm. Here are the basics with the list of confirmed speakers:
Join the Drug Enforcement and Policy Center and Natural Therapies Education Foundation for a virtual discussion featuring panelists representing current Ohio cannabis reform endeavors. The event will provide attendees with knowledge about pending initiatives and legislation, as well as a vision of what the future may hold for cannabis in Ohio.
Mary Jane Borden, co-founder and secretary of the board, Natural Therapies Education Foundation
Thomas Haren, partner, Frantz Ward
Shaleen Title, distinguished cannabis policy practitioner in residence, Drug Enforcement and Policy Center, The Ohio State University
Rep. Casey Weinstein, Ohio House of Representatives
Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law, executive director, Drug Enforcement and Policy Center, Moritz College of Law, The Ohio State University
November 5, 2021 in Campaigns, elections and public officials concerning reforms, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, October 19, 2021
Earlier this month, I received an email with links to the helpful work completed by the Drug Policy Alliance setting forth a vision for federal marijuana reforms. Here is the text and links from the email:
Today, the Drug Policy Alliance released new federal cannabis recommendations, that provide a framework for Congress to ensure that reparative justice, social and health equity, and community reinvestment are the central goals of federal regulation. Over the last year, as federal legalization has become more of a reality, we have seen the industry jockeying to regulate themselves, and there is a very real concern that — if not done right — legalization could end up replicating many of the same harms of prohibition, especially for communities of color.
These recommendations are the product of months of discussion and work from a working group we convened of cannabis state regulators, public health professionals, criminal justice reform advocates, civil rights attorneys, people working with directly impacted communities, re-entry advocates, academics and an expert involved in Canada’s cannabis regulation.
October 19, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Sunday, October 17, 2021
The question in the title of this post is prompted by this new Hill piece headlined "Crist says as Florida governor he would legalize marijuana, expunge criminal records." Here are excerpts:
Rep. Charlie Crist (D-Fla.) on Thursday said that he would expunge criminal records of those facing certain marijuana-related charges and legalize the drug if he is elected the governor of Florida. “Let me be clear: If I’m elected governor, I will legalize marijuana in the Sunshine State,” Crist said in a video posted on his Twitter on Thursday. “This is the first part of the Crist contract with Florida.”
Crist, who is running for the Democratic nomination to take on Gov. Ron DeSantis (R) in 2022, discussed different elements of his gubernatorial platform focused on racial equity in the state, including expunging criminal records for those who have received marijuana-related charges, specifically third-degree felonies and misdemeanors, the Tampa Bay Times reported.
The former Florida governor and Senate hopeful also said that he was in favor of decentralizing the marijuana industry, allowing people to personally grow marijuana plants. He noted that money made through marijuana sales would fund things such as drug treatment programs and police agencies, according to the news outlet.
Crist, who was a Republican while he was in the governor's mansion from 2007 to 2011, acknowledged that his stance, among others, had changed on marijuana use. As governor, he had signed harsh anti-marijuana legislation, which included targeting growing the plant.
His comments were criticized over Twitter by Democratic opponent Nikki Fried, who is also running to take on DeSantis. The state Agriculture commissioner, who has been previously supportive of legalizing marijuana and was a former marijuana lobbyist, according to Tallahassee Reports, accused him of imitating her political stance.
“Imitation is flattery, but records are records. People went to jail because Republicans like @CharlieCrist supported and enforced racist marijuana crime bills. Glad he's changed his mind, but none of those people get those years back. Legalize marijuana. #SomethingNew,” Fried tweeted.
Crist last year voted to end marijuana from being prohibited and criminalized federally. “We know that people across racial and income levels use marijuana at the same rate. And yet, for decades, it's been poor, Black, and/or Hispanic folks targeted for prison on marijuana charges,” Crist said in a statement in December. “That tells me that marijuana has been legal now for a while if you had the right skin tone or the right paycheck.”
I surmise that all major Democratic candidates have finally figured out that marijuana reform is a popular position. It will be interesting to watch if this issue could become significant debate topic is red-leaning swing states like Florida and Ohio that have big 2022 elections. I am inclined to believe this topic still is more fringe than fundamental in broader political discourse, but even topics that only move the electorate a little bit could prove consequential sometimes.
October 17, 2021 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Friday, October 8, 2021
As reported here, two notable US senators "are urging Attorney General Merrick Garland to decriminalize marijuana on his own" by "asking Garland and Department of Health and Human Services Secretary Xavier Becerra to use powers granted them under the Controlled Substances Act to deschedule — or decriminalize — marijuana at the federal level." The letter to this effect from the desk of Senator Elizabeth Warren and joined by Senator Cory Booker is available at this link, and it starts this way:
We write to urge the Department of Justice (DOJ) to decriminalize cannabis using its existing authority to remove the drug from the Federal controlled substances list. Under the Controlled Substances Act of 1970 (CSA), the Attorney General can remove a substance from the CSA’s list, in consultation with the Secretary of Health and Human Services (HHS). Decriminalizing cannabis at the federal level via this descheduling process would allow states to regulate cannabis as they see fit, begin to remedy the harm caused by decades of racial disparities in enforcement of cannabis laws, and facilitate valuable medical research. While Congress works to pass comprehensive cannabis reform, you can act now to decriminalize cannabis.
The letter goes on to explains the DOJ descheduling process this way:
The executive branch has the authority to initiate the process of cannabis descheduling. The CSA empowers the Attorney General to initiate proceedings to reschedule or deschedule a drug, either individually or at the request of the HHS Secretary or another interested party. The Attorney General then seeks a scientific and medical evaluation from the HHS Secretary, including the Secretary’s recommendations as to the appropriate scheduling for the drug or whether the drug should be descheduled. If the Secretary recommends descheduling a drug, that recommendation is binding on the Attorney General. However, if the Secretary recommends retaining a drug in the same schedule or moving it to a different schedule, that recommendation is not binding and the Attorney General may still choose to initiate a rulemaking procedure to deschedule or reschedule the drug.
Friday, September 24, 2021
The question in the title of this post is prompted by this notable lengthy new Washington Post article, fully headlined "Greener pastures: Marijuana jobs are becoming a refuge for retail and restaurant workers: An estimated 321,000 Americans now work in the legal cannabis industry, outnumbering the country’s dentists, paramedics and electrical engineers." Here are excerpts:
After a year on the front lines, Jason Zvokel traded in his 15-year career as a Walgreens pharmacist for a different kind of drugstore: a marijuana dispensary.
Now instead of administering vaccines and filling prescriptions, he’s helping customers make sense of concentrates, tablets and lozenges. His pay is 5 percent lower, he says, but the hours are more manageable. “I am so much happier,” said Zvokel, 46, who’s worked in retail since he was 18. “For the first time in years, I’m not miserable when I come home from work.”
The cannabis industry is riding a pandemic high: Marijuana dispensaries and cultivation facilities — deemed “essential” by many states at the beginning of the coronavirus crisis — became an early refuge for retail and restaurant workers who had been furloughed or laid off. The industry has continued to grow, adding nearly 80,000 jobs in 2020, more than double what it did the year before, according to data from the Leafly Jobs Report, produced in partnership with Whitney Economics.
An estimated 321,000 Americans now work in the industry, a 32 percent increase from last year, the report found, making legal marijuana one of the nation’s fastest-growing sectors. In other words: The United States now has more legal cannabis workers than dentists, paramedics or electrical engineers....
That surge in cannabis hiring has put pressure on traditional employers — particularly in the 18 states and the District where recreational marijuana use is legal — to ease drug testing requirements. Amazon, the nation’s second-largest private employer, said in June that it would stop screening employees for cannabis use and would support federal legislation to legalize marijuana. A number of other employers, including retailers, restaurants and city governments have also dropped such requirements in an effort to attract workers in a labor market where job openings outpace the number of unemployed Americans 10.9 million to 8.4 million.
Workers’ rights groups are pressing for broader unionization in the cannabis industry, calling it a critical time to establish well-paying jobs with proper protections. With the right policies, they say, the industry could become a pipeline to middle-class jobs, much like the manufacturing industry used to be....
Brianna Price recently left a job as a grocery stocker to become a “budtender” — an industry term for a sales associate — at a dispensary. She’s been promoted three times in the year she’s worked there, and now oversees all purchasing and a staff of nine.
“It’s the best job I’ve ever had,” said Price, 31, of Midland, Mich., who worked as a paralegal for eight years before she was laid off early in the pandemic. She took a part-time job at the supermarket chain Aldi, but says it paid so little that she had to move back in with her parents. There were other downsides, too: Her shifts often started at 5 a.m. and sometimes consisted of standing outside, wiping down shopping carts for hours on end....
At the Hempire Collective in Loomis, Mich., where she works, sales have more than doubled in the last year, to roughly $500,000 a month, according to co-owner Mario Porter. He’s expanded his dispensary staff from seven to 12, and expects to hire more this year. Many of his new employees, he said, come from retail jobs that they left during the pandemic.
September 24, 2021 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Friday, September 3, 2021
"Lower-Risk Cannabis Use Guidelines for reducing health harms from non-medical cannabis use: A comprehensive evidence and recommendations update"
The title of this post is the title of this new article by multiple authored appearing in the International Journal of Drug Policy. Here is its abstract:
Cannabis use is common, especially among young people, and is associated with risks for various health harms. Some jurisdictions have recently moved to legalization/regulation pursuing public health goals. Evidence-based ‘Lower Risk Cannabis Use Guidelines’ (LRCUG) and recommendations were previously developed to reduce modifiable risk factors of cannabis-related adverse health outcomes; related evidence has evolved substantially since. We aimed to review new scientific evidence and to develop comprehensively up-to-date LRCUG, including their recommendations, on this evidence basis.
Targeted searches for literature (since 2016) on main risk factors for cannabis-related adverse health outcomes modifiable by the user-individual were conducted. Topical areas were informed by previous LRCUG content and expanded upon current evidence. Searches preferentially focused on systematic reviews, supplemented by key individual studies. The review results were evidence-graded, topically organized and narratively summarized; recommendations were developed through an iterative scientific expert consensus development process.
A substantial body of modifiable risk factors for cannabis use-related health harms were identified with varying evidence quality. Twelve substantive recommendation clusters and three precautionary statements were developed. In general, current evidence suggests that individuals can substantially reduce their risk for adverse health outcomes if they delay the onset of cannabis use until after adolescence, avoid the use of high-potency (THC) cannabis products and high-frequency/-intensity of use, and refrain from smoking-routes for administration. While young people are particularly vulnerable to cannabis-related harms, other sub-groups (e.g., pregnant women, drivers, older adults, those with co-morbidities) are advised to exercise particular caution with use-related risks. Legal/regulated cannabis products should be used where possible.
Cannabis use can result in adverse health outcomes, mostly among sub-groups with higher-risk use. Reducing the risk factors identified can help to reduce health harms from use. The LRCUG offer one targeted intervention component within a comprehensive public health approach for cannabis use. They require effective audience-tailoring and dissemination, regular updating as new evidence become available, and should be evaluated for their impact.
Thursday, September 2, 2021
Rounding up some of the round-ups of the many comments submitted on early draft of federal Cannabis Administration and Opportunity Act
As detailed in this prior post, in mid July 2021, US Senate Majority Leader Chuck Schumer, along with Senators Ron Wyden and Cory Booker, unveil what was described as a "discussion draft" of a lengthy federal marijuana reform bill titled the Cannabis Administration and Opportunity Act (CAOA). The full text of this CAOA "discussion draft" is available here, and marijuana reform advocates (and opponents) unsurprisingly has a whole lot that they wanted to discuss about this discussion draft. September 1 was the deadline for the submission of comments, and I received multiple emails from multiple groups promoting their comments. Helpfully, I have seen a few press pieces that serve to round up some of the comments:
From Law360, "Pot Advocates Advise Careful Rollout Of Federal Legalization"
From Marijuana Moment, "Senators Flooded With Input On Federal Marijuana Legalization Bill"
From MJ Biz Daily, "Marijuana trade groups offer comments on Schumer’s federal legalization bill"
The Marijuana Moment piece provides a particularly fulsome review of (and helpful links to) lots of the submitted comments. Here is how it sets up the review:
While legalization proponents have widely celebrated the introduction of the Cannabis Administration and Opportunity Act (CAOA), they have some suggestions for improvement — principally as it concerns issues of social equity, licensing, tax policy and interstate commerce.
Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) are the lead sponsors of the legislation, and after releasing a draft version of the measure in July, they opened a public comment to receive input on what will be a revised measure the senators plan to formally introduce.
Pro-reform organizations like NORML, Marijuana Policy Project (MPP), National Cannabis Industry Association (NCIA) and Hemp Roundtable made their voices heard — and while they generally applauded the senators’ work to end federal cannabis prohibition, they had some recommendations for revisions. Prohibitionist groups also weighed in with thoughts about the proposal can be changed to better reflect their concerns with the overall policy of legalization.
A few prior related posts:
- Great early coverage of US Senate Leader Chuck Schumer's "discussion draft" of new Cannabis Administration and Opportunity Act
- Some federal reform headlines a week after introduction of the Cannabis Administration and Opportunity Act
Friday, August 27, 2021
The title of this post is the title of this new piece authored by Benjamin Seymour now on SSRN. Here is its abstract:
This Comment offers a fair lending solution to promote racial equity in federal cannabis banking reform: amend the Equal Credit Opportunity Act to ensure individuals previously arrested, charged, or convicted for selling, cultivating, or possessing marijuana will not therefore be precluded from loans to start legal cannabis businesses. Given disparities in the criminal enforcement of marijuana laws, this amendment would provide racial justice benefits, while also encouraging entrepreneurship. As a market-based social justice effort, this amendment offers a bipartisan approach to one of the most vexing and contentious issues in marijuana banking reform.
This Comment briefly surveys the federal statutes that have led to an under-banked cannabis industry and discusses the costs of cash for marijuana businesses. It then examines prior reforms proposed by academics, executive-branch officials, and legislators. Finally, this Comment explores the racial equity concerns that these proposals fail to address and develops a fair lending approach for justice in marijuana banking reform.
Monday, August 23, 2021
"Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana"
The title of this post is the title of this notable new paper now available on SSRN authored by Robert Mikos and Scott Bloomberg. Here is its abstract:
Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate.
This Article serves as a wake-up call. It provides the most extensive analysis to date of the disruptions the DCC could cause for lawmakers and the marijuana industry. Among other things, the doctrine could spawn a race to the bottom among states as they compete for a newly mobile marijuana industry, undermine state efforts to boost participation by minorities in the legal marijuana industry, and abruptly make obsolete investments firms have made in existing state-based marijuana markets. But the Article also devises a novel solution to these problems. Taking a page from federal statutes designed to preserve state control over other markets, it shows how Congress could pursue legalization without disruption. Namely, Congress could suspend the DCC and thereby give state lawmakers and marijuana businesses time to prepare for the emergence of a national marijuana market. The Article also shows how Congress could make the suspension temporary to allay any concerns over authorizing state protectionism in the marijuana market.
Monday, August 9, 2021
The title of this post is the title of this effective new piece by Julie Werner-Simon at Cannabis Business Times. The subheadline highlights one theme of the piece: "The answer depends on how we define 'legalized'." Here are excerpts:
There is one cannabis question that is regularly searched across a variety of Internet platforms: How many states have legalized adult recreational use of cannabis as of today? As a cannabis law professor and a legal analyst for emerging cannabis businesses, I often am asked that very question. My response is always the same, no matter the date or the year: “It depends on how legalization is defined.”
State-based cannabis legalization can happen in two ways. One way is evidenced by those states which permit voters to place topics on the ballot for a vote. The other way is through the legislature, when a state’s assembly writes and passes legalization legislation which is ultimately signed off by that state’s chief executive.
When defined like that, Connecticut became the 19th U.S. state to legalize adult recreational use when, on June 22, 2021, Connecticut governor Ned Lamont signed into law a bill passed by the Connecticut legislature....
But these numbers will fall like dominos and change with those passed this year each reverting back one number depending on what happens in the highest court of South Dakota. That state was one of five that had cannabis initiatives on the ballot in the November 2020 election (the others were Arizona, Mississippi, Montana, and New Jersey).
Every cannabis ballot measure in those states prevailed with gusto. Voters overwhelmingly supported legalizing adult recreational usage in Arizona, New Jersey, and Montana; medical cannabis usage in Mississippi; and both medical and adult recreational use in South Dakota. But, once the voters made their wishes known, in two of the states, South Dakota and Mississippi, there was a backlash by government officials and the courts.
Some of South Dakota’s elected representatives (including that state’s governor) started a campaign to undermine the will of the voters and invalidate both the medical and adult recreational initiatives passed by a significant majority of South Dakota’s voters. The same thing played out in Mississippi where government officials challenged, in court, the enactment and enforcement of that state’s voters’ legalization plans....
On February 8, 2021, a South Dakota state court judge ruled against the voters and invalidated South Dakota voters’ passage of an adult recreational cannabis ballot initiative. Recreational legalization proponents appealed the decision to the South Dakota Supreme Court. The highest state court in South Dakota heard oral arguments (for and against) on April 28, 2021. The parties’ presentations and the justices’ commentary did not give a clear indication of what the high court decision will be. As of publication time, it is not clear how the South Dakota justices will decide.
So, how many states have legalized adult-use cannabis?... Under the definition of legalization in this article, since South Dakota’s adult recreational program is on appeal but voters in South Dakota approved the initiative, it is more than appropriate that South Dakota remains (precariously) on our voters-have-legalized-adult-rec list.
The “how many states have legalized adult recreational use” question will be decided by the five justices who comprise the South Dakota Supreme Court. It is expected to happen soon as their summer break ends with the beginning of the South Dakota Supreme Court’s September term. If that court tosses the recreational use legalization measure, and South Dakota comes off the adult recreational legalization list, Connecticut will no longer be the 19th adult-use state, it will become the 18th. New Mexico then would follow suit and revert to number 17, Virginia to number 16, and New York to number 15.
Friday, July 30, 2021
Perhaps because I live and work in Ohio, I still tend to consider the state a national bellwether politically. But, in recent elections (due in part to gerrymandering as well as to other factors), the state has been quite red politically with GOP candidates winning the vast majority of statewide and local elections. Whether now considered a bellwether or a deep red state, recent developments on the marijuana reform front strike me as quite interesting and worth watching in the months ahead. Here are the basics from two great Marijuana Moment articles:
Ohio lawmakers are preparing to file a bill to legalize and regulate marijuana in the state. This would mark the first time such a proposal to allow recreational cannabis commerce has been introduced in the legislature. Rep. Casey Weinstein (D) is sponsoring the legislation alongside Rep. Terrence Upchurch (D). While the text of the measure has not yet been released, the lawmakers circulated a co-sponsorship memo to colleagues on Thursday to shore up support for the effort in advance of its formal introduction....
The bill would legalize possession of up to five ounces of cannabis for adults 21 and older and allow them to cultivate up to 12 plants for personal use. It will also include provisions to expunge prior convictions for possession and cultivation activities that are being made legal under the measure.
A 10 percent excise tax would be imposed on marijuana sales, with revenue first going toward the cost of implementation and then being divided among municipalities with at least one cannabis shop (15 percent), counties with at least one shop (15 percent), K-12 education (35 percent) and infrastructure (35 percent).
Ohio marijuana activists have a new plan to legalize cannabis in the state as lawmakers pursue separate reform legislation. Voters rejected a 2015 legalization initiative, and advocates suspended a campaign to place another measure on the 2020 ballot due to the coronavirus pandemic. But on Tuesday, the Coalition to Regulate Marijuana Like Alcohol (CTRMLA) launched a new effort to implore legislators to enact the policy change.
The group submitted the requisite 1,000 signatures to the Ohio attorney general’s office on Tuesday. Officials now have 10 days to review the summary and text to ensure that it is “fair and truthful” and approve it for circulation. Several existing medical cannabis businesses are backing the measure....
Unlike past efforts, the new measure is a statutory, rather that a constitutional, proposal. If supporters collect 132,887 valid signatures from registered voters, the legislature will then have four months to adopt the measure, reject it or adopt and amended version. If lawmakers do not pass the proposal, organizers will then need to collect an additional 132,887 signatures to place the measure before voters on the ballot in 2022.
The start of an statutory initiative campaign, which gives the Ohio General Assembly a chance to act on proposed reforms before the proposal goes directly to the voters, strikes me as especially shrewd and interesting. This approach will likely keep the issue in the news in ways that ought to be helpful to reform proponents (e.g., they can discuss tax revenues and the need for Ohio to keep up with its reform neighbors); and this approach may require many state legislators to have to express a position on reform in a run-up to an off-year election in which a topic like marijuana reform could help turn out some extra voters. Interesting times.
July 30, 2021 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)