Marijuana Law, Policy & Reform

Taking stock of 2020 marijuana reform prospects in various states (and noting some significant omissions)

Jeff Smith over at MJBizDaily has this helpful article (with a helpful graphic) under the headline "Several states could legalize cannabis sales in 2020 as marijuana industry eyes lucrative East Coast market."  The article maps out the ten or so states that might move forward with adult-use legalization regimes in 2020 and also reviews the handful of states in which medical marijuana legalization might move forward this year.  Here is a snippet from the start of the piece:

Up to a dozen states could legalize adult-use or medical marijuana in 2020 through their legislatures or ballot measures, although only about a handful will likely do so.

Much of the cannabis industry’s focus will home in on a possible recreational marijuana domino effect along the East Coast, which could create billions of dollars in business opportunities.  Adult-use legalization efforts in New York and New Jersey stalled in 2019, but optimism has rekindled this year.

Potential legalization activity runs from the Southwest to the Dakotas to the Deep South. Mississippi in particular has a business-friendly medical cannabis initiative that has qualified for the 2020 ballot.

If even a handful of these state marijuana reforms move forward this year, it becomes that much more likely that some form of federal reform will have to follow. That reality is one of the theme of this lengthy new Politico article which also provides an accounting of potential state reforms under the full headline "Marijuana legalization may hit 40 states. Now what?: Changes in state laws could usher in even more confusion for law enforcement and escalate the pressure on Congress to act." Here is an excerpt:

More than 40 U.S. states could allow some form of legal marijuana by the end of 2020, including deep red Mississippi and South Dakota — and they’re doing it with the help of some conservatives.  State lawmakers are teeing up their bills as legislative sessions kick off around the country, and advocates pushing ballot measures are racing to collect and certify signatures to meet deadlines for getting their questions to voters.

Should they succeed, every state could have marijuana laws on the books that deviate from federal law, but people could still be prosecuted if they drive across state lines with their weed, because the total federal ban on marijuana isn’t expected to budge any time soon.  The changes could usher in even more confusion for law enforcement and escalate the pressure on Congress to act.  Federal bills are crawling through Congress, with Senate Majority Leader Mitch McConnell firmly against legalization....

“We’re cautiously optimistic that we can win more marijuana reform ballot initiatives on one Election Day than on any previous Election Day,” said Matthew Schweich, deputy director of the Marijuana Policy Project.  Schweich cited growing public support for the issue among both liberals and conservatives.  The measures that make the ballot could drive voter turnout at the polls and by extension affect the presidential election.

Liberal states that allow ballot petitions have largely voted to legalize marijuana, including California, Oregon and Massachusetts.  “Now, we’re venturing into new, redder territory and what we’re finding is voters are ready to approve these laws in those states,” said Schweich, who, along with leading legalization campaigns in Maine, Massachusetts and Michigan, served as the co-director of the medical marijuana legalization campaign in Utah.  “If we can pass medical marijuana in Utah, we can pass it anywhere.”

National organizations like his are eschewing swing states like Florida and Ohio, where the costs of running a ballot campaign are high during a presidential election. They are intentionally targeting states with smaller populations.  For advocates, running successful campaigns in six less-populous states means potentially 12 more senators representing legal marijuana states.  “The cost of an Ohio campaign could cover the costs of [four to six] other ballot initiative campaigns. Our first goal is to pass laws in as many places as we can,” Schweich said.

They can’t take anything for granted, however.  In Florida, where polling says two-thirds of voters want to legalize pot, one effort to gather enough signatures for a 2020 ballot measure collapsed last year, and a second gave up on Tuesday, saying there’s not enough time to vet 700,000 signatures.  Organizers are looking to 2022.  And many legislative efforts to legalize marijuana came up short in 2019, including in New York and New Jersey.  Those efforts were derailed in part over concerns about how to help people disproportionately harmed by criminal marijuana prosecutions, despite broad support from Democratic-controlled legislatures and the governors.

I fully understand the strategic and economic reasons why MPP and other national marijuana reform activist groups have chosen not to focus on big purple states like Florida and Ohio for full legalization campaigns. But these two states have unique long-standing and well-earned reputations as national swing states. Only if (when?) these kinds of big (reddish-purple) states go the route of full legalization will I think federal reform becomes unavoidable.

Hemp legalization leads to huge decline of misdemeanor marijuana charges in Texas

This lengthy local article, headlined "Marijuana prosecutions in Texas have dropped by more than half since lawmakers legalized hemp," reports on a remarkable new reality for Texas marijuana prosecutions. Here are some excerpts:

It’s been more than six months since Texas lawmakers legalized hemp and unintentionally disrupted marijuana prosecution across the state.  Since then, the number of low-level pot cases filed by prosecutors has plummeted. Some law enforcement agencies that still pursue charges are spending significantly more money at private labs to ensure that substances they suspect are illegal marijuana aren't actually hemp.

The Texas Department of Public Safety and local government crime labs expect to roll out a long-awaited testing method to distinguish between the two in the next month or so.  But that's only for seized plant material.  There's still no timeline for when they will be able to tell if vape pen liquid or edible products contain marijuana or hemp.  And DPS said even when its testing is ready, it doesn’t have the resources to analyze substances in the tens of thousands of misdemeanor marijuana arrests made each year — testing it didn’t have to do before hemp was legalized....

In June, Gov. Greg Abbott signed into law a widely supported bill to legalize hemp in Texas.  The bill focused on agriculture practices and regulations, but it also narrowed the state’s definition of marijuana from cannabis to cannabis that contains more than 0.3% of tetrahydrocannabinol, or THC, the ingredient in marijuana that gets you high.  Anything with less THC is hemp.

Lawmakers were warned the measure could bring marijuana prosecution to a halt without more resources because public labs could only determine whether THC was present in a substance, not how much was present.  Still, the legislation sailed into law with no crime lab funding attached.  State leaders and the bill authors have since reaffirmed that the law did not in any way decriminalize marijuana.

Soon after its passage, however, district and county prosecutors across the state, in counties that lean both Republican and Democratic, began dropping hundreds of low-level pot cases.  Some began requiring law enforcement agencies to submit lab results proving the suspected drugs had more than 0.3% THC before they accepted cases for prosecution.  The Texas District and County Attorneys Association advised its members that such testing likely is needed to prove in court that a substance is illegal....

In 2018, Texas prosecutors filed about 5,900 new misdemeanor marijuana possession cases a month, according to data from the Texas Office of Court Administration.  The first five months of 2019 saw an average of more than 5,600 new cases filed a month.  But since June, when the hemp law was enacted, the number of cases has been slashed by more than half.  In November, less than 2,000 new cases were filed, according to the court data.

For those who support marijuana legalization, that change is welcome, adding to an already growing effort in some of the state’s most populated counties to divert pot smokers from criminal prosecution or not arrest them at all.  “It means that there are fewer Texans that are getting slapped with a criminal record for marijuana possession, something that is already legal in other states,” said Katharine Harris, a drug policy fellow at Rice University’s Baker Institute for Public Policy.

"How High? Adjusting California's Cannabis Taxes"

The title of this post is the clever title of this interesting new report from California's Legislative Analyst's Office released last week.  (Hat top: Crime & Consequences.)  Here is part of the report's "Executive Summary":

Proposition 64 (2016) directed our office to submit a report to the Legislature by January 1, 2020, with recommendations for adjustments to the state’s cannabis tax rate to achieve three goals: (1) undercutting illicit market prices, (2) ensuring sufficient revenues are generated to fund the types of programs designated by the measure, and (3) discouraging youth use.  This report responds to this statutory requirement and discusses other potential changes to the state’s cannabis taxes.  While this report focuses on cannabis taxes, nontax policy changes also could affect these goals.

Proposition 64 established two state excise taxes on cannabis.  The first is a 15 percent retail excise tax, effectively a wholesale tax under current law.  The second is a tax based on the weight of harvested plants, often called a cultivation tax.  (The measure authorizes the Legislature to amend its tax provisions without voter approval, but the scope of this authorization is unclear.)...

We analyze four types of taxes: basic ad valorem (set as a percentage of price, such as the current retail excise tax), weight-based (such as the current cultivation tax), potency-based (for example, based on tetrahydrocannabinol [THC]), and tiered ad valorem (set as a percentage of price with different rates based on potency and/or product type).  Our analysis focuses primarily on three main criteria: (1) effectiveness at reducing harmful use, (2) revenue stability, and (3) ease of administration and compliance.  No individual type of tax performs best on all criteria.  For example, tiered ad valorem and potency-based likely are best for reducing harmful use, but basic ad valorem is easiest to administer.  Given these trade-offs, the Legislature’s choice depends heavily on the relative importance it places on each criterion.  That said, the weight-based tax is generally weakest, performing similarly to or worse than the potency-based tax on the three main criteria....

Any tax rate change would help the state meet certain goals while likely making it harder to achieve others.  On one hand, for example, reducing the tax rate would expand the legal market and reduce the size of the illicit market.  On the other hand, such a tax cut would reduce revenue in the short term, potentially to the extent that revenue could be insufficient.  Furthermore, lower tax rates could lead to higher rates of youth cannabis use.  With a thriving illicit market, however, much of the cannabis used by youth could avoid taxation.  Where possible, this report provides quantitative estimates of the short-term effects of rate changes....

We view reducing harmful use as the most compelling reason to levy an excise tax.  Accordingly, we recommend that the Legislature replace the existing retail excise tax and cultivation tax with a potency-based or tiered ad valorem tax, as these taxes could reduce harmful use more effectively.  If policymakers value ease of administration and compliance more highly than reducing harmful use, however, the Legislature might prefer to keep the existing retail excise tax.  In contrast, we see little reason for the Legislature to retain the weight-based cultivation tax....

If the Legislature decides not to adopt a potency-based or tiered ad valorem cannabis tax, we nevertheless recommend that the Legislature eliminate the cultivation tax. In this case, we recommend that the Legislature set the retail excise tax rate somewhere in the range of 15 percent to 20 percent depending on its policy preferences.

New Jersey and South Dakota are first two states (of many to come?) with marijuana reform officially on the 2020 ballot

Though we are still 11 months away from Election Day 2020, this past week two state already made official that its voters will have a marijuana reform proposal to consider.  Here are the basics via press reports:

From New Jersey: "Legal weed is now up to N.J. voters as lawmakers vote to put it on 2020 ballot"

New Jersey residents will decide whether to legalize marijuana in the Garden State, after both houses of the state Legislature voted Monday to put the question on the 2020 ballot.  The measure passed the state Senate in a 24-16 vote at the Statehouse in Trenton on Monday afternoon, while the state Assembly voted 49-24 with one abstention....

Gov. Phil Murphy made legalizing marijuana for those over 21 one of his campaign promises. In the nearly two years since he took office, the initiative has seen several setbacks.  State Senate President Stephen Sweeney announced in late November he would not take the bill to the floor, and would instead seek to put it to the ballot for voters to decide.

From South Dakota: "Medical Marijuana Measure Makes SD Ballot"

Petitions submitted for an initiated measure on legalizing marijuana for medical use have been validated and the measure will appear on South Dakota’s 2020 general election ballot.  According to a press release by Secretary of State Steve Barnett, the petitions were officially validated Thursday.  It will be titled Initiated Measure 26. An initiated measure currently requires 16,961 valid signatures in order to qualify for the ballot.

My understanding is that there could be as many as a half-dozen additional states, including Arizona, Arkansas, Florida, Nebraska and North Dakota, that could end up having marijuana ballot measures for voters in 2020.

New Jersey legislators turn to 2020 referendum as means for seeking full legalization reforms

As reported in this Politico piece, headlined "New Jersey marijuana legalization bill dead; lawmakers will let voters decide," legislators in the Garden State have failed again to achieve significant marijuana reforms through the traditional legislative process and now have a new 2020 plan.  Here are the details and backstory:

For the second time this year, top Democratic lawmakers in New Jersey pulled the plug on legislation to legalize cannabis sales for recreational use, killing any likelihood Gov. Phil Murphy will deliver on a key campaign promise before 2021.

Instead, legislative leaders introduced a resolution Monday that would put a recreational use question on the November 2020 ballot. The resolution would need to pass both houses of the state Legislature by three-fifths majorities in one year or by simple majorities in consecutive years to make it onto the ballot.

“We made further attempts to generate additional support in the Senate to get this done legislatively, but we recognize that the votes just aren’t there. We respect the positions taken by legislators on what is an issue of conscience," Senate President Steve Sweeney said in a joint statement with Sen. Nicholas Scutari (D-Union), who had been the lead sponsor of the cannabis legalization bill, NJ S2703 (18R), in the upper house....

Murphy, who campaigned heavily on a pro-cannabis platform in 2017, was disappointed by the announcement, but said in a statement he has “faith that the people of New Jersey will put us on the right side of history when they vote next November.“ “By approving this ballot measure before the end of this legislative session, New Jersey will move one step closer to righting a historical wrong and achieving what I have spent more than three years advocating for,” the governor said.

Several polls released over the last two years suggest a solid majority of New Jersey residents support marijuana legalization. Even so, NJ RAMP —an affiliate of the anti-legalization group Smart Approaches to Marijuana — has already said it plans to fight the measure at the ballot box.

Should voters approve the referendum, it would be up to the Legislature to take action to grant oversight of the adult use industry to the Cannabis Regulatory Commission, which was previously established through medical marijuana legislation passed earlier this year....

Monday’s announcement marks the conclusion of a long odyssey for the Democrat’s recreational use bill, which was originally scheduled for a vote in March after months of protracted negotiations between Murphy, Sweeney and Assembly Speaker Craig Coughlin. That vote was scuttled after Sweeney and Murphy failed to whip up the necessary 21 votes in the upper house. A majority of Assembly members supported the bill.

Two months later, amid an escalating feud between Murphy and South Jersey Democratic power broker George Norcross over tax incentives, Sweeney said there wasn’t a viable path forward for the bill’s passage, laying some blame on the administration’s efforts to unilaterally expand New Jersey’s medical marijuana program.

Sweeney reversed course several months later, saying he’d like to give the legislation another shot with some technical revisions to accommodate regulatory changes established through the state’s new medical marijuana law, NJ A20 (18R), along with criminal justice reforms that have since been included in subsequent legislation. Both bills had previously been linked to the fate of recreational use legislation.

"Cannabis Legalization in State Legislatures: Public Health Opportunity and Risk"

The title of this post is the title of this new paper authored by Daniel Orenstein and Stanton Glantz now available via SSRN. Here is its abstract:

Cannabis is widely used in the U.S. and internationally despite its illicit status, but that illicit status is changing.  In the U.S., 33 states and the District of Columbia have legalized medical cannabis, and 11 states and D.C. have legalized adult use cannabis.  A majority of state medical cannabis laws and all but two state adult use laws are the result of citizen ballot initiatives, but state legislatures are beginning to seriously consider adult use legislation.  From a public health perspective, cannabis legalization presents a mix of potential risks and benefits, but a legislative approach offers an opportunity to improve on existing legalization models passed using the initiative process that strongly favor business interests over public health.

To assess whether state legislatures are acting on this opportunity, this article examines provisions of proposed adult use cannabis legalization bills active in state legislatures as of February 2019 to evaluate the inclusion of key public health best practices based on successful tobacco and alcohol control public health policy frameworks. Given public support for legalization, further adoption of state adult use cannabis laws is likely, but legalization should not be viewed as a binary choice between total prohibition and laissez faire commercialization.  The extent to which adult use cannabis laws incorporate or reject public health best practices will strongly affect their impact, and health advocates should work to influence the construction of such laws to prioritize public health and learn from past successes and failures in regulating other substances.

"The Cannabis Effect on Crime: Time-Series Analysis of Crime in Colorado and Washington State"

The title of this post is the title of this notable new research by multiple authors just now published in the journal Justice Quarterly.  Here is its abstract and part of its conclusions:

Abstract

Previous studies based on relatively weak analytical designs lacking contextualization and appropriate comparisons have reported that the legalization of marijuana has either increased or decreased crime.  Recognizing the importance for public policy making of more robust research designs in this area during a period of continuing reform of state marijuana laws, this study uses a quasi-experimental, multi-group interrupted time-series design to determine if, and how, UCR crime rates in Colorado and Washington, the first two states to legalize marijuana, were influenced by it.  Our results suggest that marijuana legalization and sales have had minimal to no effect on major crimes in Colorado or Washington.  We observed no statistically significant long-term effects of recreational cannabis laws or the initiation of retail sales on violent or property crime rates in these states....

Conclusions

Authors of previous studies (Berenson, 2019; NHIDTA, 2016; Smart Approaches to Marijuana. (2018) argue that legalization is associated with an increase in crime.  Our results suggest that cannabis laws more broadly, and the legalization of recreational marijuana more specifically, have had minimal effect on major crime in Colorado or Washington State.  We observed virtually no statistically significant long-term effects of recreational marijuana legalization or retail sales on violent or property crime rates, except for a significant decline of burglary rates in Washington.  There were some immediate increases in crime at the point of legalization, but these did not result in long-term effects.  It is difficult to study trends for less serious crimes, as the UCR only includes arrest data for these offenses and not offenses known.  Though NIBRS data presents an attractive alternative, not all of Washington is NIBRS compliant and many of the agencies that are reporting NIBRS data have not done so for a long enough period of time pre-legalization for time series modeling to be examined.  Still, the results related to serious crime are quite clear: the legalization of marijuana has not resulted in a significant upward trend in crime rates.  Our results are robust in that we examined the first two states to legalize marijuana and compared them to states with no marijuana laws at all.  Moreover, we estimated our models in a variety of manners, including models with different interruption points, single-group interrupted time series analyses, and as a set of pooled cross-sectional models. None of our models revealed long term effects of marijuana legalization on serious crime rates.

In concert with recent research results from Makin et al. (2019), our results from Colorado and Washington suggest that legalization has not had major detrimental effects on public safety.  Having said this we would caution that it would also be premature to suggest that legalization renders substantial increases in public safety, as the rates of most crimes remained steady in this study in the post-legalization period and because crime is not the only measure of public safety.  Additional work is needed to examine the effect of legalization on other public safety outcomes, including public and mental health measures.

"Fatal crashes in the 5 years after recreational marijuana legalization in Colorado and Washington"

The title of this post is the title of this new research by multiple authors published in the November 2019 issue of the journal Accident Analysis & Prevention.  Here is its abstract:

Colorado and Washington legalized recreational marijuana in 2012, but the effects of legalization on motor vehicle crashes remains unknown. Using Fatality Analysis Reporting System data, we performed difference-in-differences (DD) analyses comparing changes in fatal crash rates in Washington, Colorado and nine control states with stable anti-marijuana laws or medical marijuana laws over the five years before and after recreational marijuana legalization.  In separate analyses, we evaluated fatal crash rates before and after commercial marijuana dispensaries began operating in 2014.

In the five years after legalization, fatal crash rates increased more in Colorado and Washington than would be expected had they continued to parallel crash rates in the control states (+1.2 crashes/billion vehicle miles traveled, CI: -0.6 to 2.1, p = 0.087), but not significantly so.  The effect was more pronounced and statistically significant after the opening of commercial dispensaries (+1.8 crashes/billion vehicle miles traveled, CI: +0.4 to +3.7, p = 0.020).  These data provide evidence of the need for policy strategies to mitigate increasing crash risks as more states legalize recreational marijuana.

Could legalization vote in 2020 help make Florida a tipping point state for marijuana reform nationwide?

The question in the title of this post is my first thought in reaction to this local news piece headlined "With Petition Milestone, Recreational Marijuana Is One Step Closer in Florida."  Here are the details:

[W]ith activists pushing to get recreational weed on the 2020 ballot in Florida, the possibility of legalization now seems likelier than ever.  Yesterday the advocacy group Regulate Florida announced its petition to legalize pot has gathered more than 76,632 verified signatures — enough to trigger a review by the Florida Supreme Court.

"We have a long way to go to get it on the ballot, but we will GET IT DONE TOGETHER!!!" the organization wrote in an email newsletter. "TODAY IS THE 1st VICTORY OF MANY TO COME!!!"

Next, the Florida Supreme Court will review the language of the prospective ballot item, which would regulate weed like alcohol in that marijuana would be legal "for limited use and growing" for anyone 21 years or older. Even if the language is approved, Regulate Florida would still need 766,200 signatures to put the amendment before voters.

The Florida Supreme Court review represents a significant milestone, but Regulate Florida still must hit several other targets to get recreational marijuana on the ballot. According to the group's chairman, Michael Minardi, the state has 90 days after the court's certification to complete a financial impact statement on the economic effects of legalizing recreational marijuana.  State statutes also call for the Florida secretary of state to send the proposed amendment to Florida's attorney general, who has 30 days to give an advisory opinion and potentially challenge the validity of the petition....

Last month, a poll by Quinnipiac University showed that 65 percent of Florida voters support "allowing adults to legally possess small amounts of marijuana for personal use."  However, as the Miami Herald recently pointed out, that support doesn't guarantee the amendment's success on Election Day.

There has been talk of marijuana legalization initiatives in states ranging from Arizona to Arkansas to Montana to North Dakota.  But, for various reasons, Florida would be the most significant state for a legalization vote in 2020.  For starters, it is a big state and a swing state.  In addition, because a 60% vote is needed for approval, a ballot win in the state would reveal just how potent support for full legalization can be.

Spotlighting (and following) the social equity and justice provisions in new Illinois "Cannabis Regulation and Tax Act"

As everyone likely knows by now, Illinois this week became the eleventh state to fully legalize adult use of marijuana and the first state to do so with regulated sales through the regular legislative process.  But what I did not full realize until reading this local press article, headlined "Countdown begins to Jan. 1 after Pritzker signs bill making marijuana legal in Illinois," are all the particulars of the major social equity and justice provisions in the new law.  Here are the basics:

The most unusual and far-reaching aspect of the bill is its “social equity” component.  It calls for 25% of tax money for grants to fund neighborhood improvement projects in poor minority areas.  Proposals are to be chosen by a board led by Lt. Gov. Julianna Stratton.

In addition, anyone with a marijuana arrest for under 30 grams would have the case automatically cleared, while the governor will pardon convictions for up to 30 grams. Prosecutors and individuals may petition the courts to expunge convictions for amounts between 30 and 500 grams.

The state will also provide lower licensing fees, low-interest loans and preference in awarding licenses to social equity applicants, defined as those from areas most affected by the war on drugs, or having criminal records eligible for expungement.

“What we are doing here is about reparations,” state Rep. Jehan Gordon-Booth, a Democrat from Peoria, said. “Black and brown people have been put at the very center of this policy.”

Regular readers know that I think marijuana reform can and should be an impactful form of criminal justice reform, and I have authored an article, "Leveraging Marijuana Reform to Enhance Expungement Practices," which urges jurisdictions to earmark a portion of marijuana revenues to devote to improving the criminal justice system.  In my article, I specifically advocate for the creation of a new criminal justice institution, which I call a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for all people with past criminal convictions.  Though Illinois has not quite created a new criminal justice infrastructure through its "Cannabis Regulation and Tax Act," it merits a good star in my book for achieving more on this front than any other jurisdiction to date.

But, as wise folks say in a variety of settings, effective implementation of the law can often be even more important than its initial reform.  Anyone and everyone seriously interesting in social equity and justice should be seriously interested in following how this law plays out in the months and years ahead.

Prior related posts:

• Illinois poised to become first big state to legalize adult use/recreational marijuana via traditional legislation
• Illinois officially now the eleventh US state to legalize marijuana for adult use
• "Leveraging Marijuana Reform to Enhance Expungement Practices"

Illinois officially now the eleventh US state to legalize marijuana for adult use

Though it was nearly a month ago that the Illinois legislature passed a full legalization bill, it was only today that Gov JB Pritzker signed this marijuana legalization bill into law.  This new Vox piece provides some of the particulars and context (as well as an updated marijuana reform map):

Illinois just became the 11th state to legalize marijuana — and the first where the legislature legalized selling the drug. Democratic Gov. J.B. Pritzker, who advocated for legalization in his 2018 campaign, signed a marijuana legalization bill on Tuesday. The legislature had sent the bill to him in May.

Illinois’s marijuana legalization law will allow recreational possession and sales starting on January 1, 2020, creating a new system of taxes and regulations.  Adults 21 and older will be allowed to possess and buy cannabis, although tourists in Illinois will be allowed to buy less than state residents.  Cities and counties may prohibit sales, but not possession, within their borders. Personal growing will only be fully legal for medical use.  Previous low-level convictions and arrests for marijuana will be pardoned and expunged.

The law will go into effect on January 1, 2020.  The state previously allowed marijuana for medical purposes.  Marijuana remains illegal at the federal level, with federal law classifying cannabis as a Schedule 1 substance with no medical value and a high potential for misuse.  But the federal government has generally taken a hands-off approach toward state laws loosening access to the drug.

Ten other states and Washington, DC, have legalized marijuana.  But Vermont (which also legalized through its legislature) and DC have not yet allowed sales.  Besides Vermont and now Illinois, states have legalized through ballot initiatives. Several other states, including New York and New Jersey, have considered legalization in their legislatures this year, but the proposals have so far failed to pass despite support from the governors in those states.

Prior related post:

Illinois poised to become first big state to legalize adult use/recreational marijuana via traditional legislation

"The State of Marijuana in The Buckeye State and Fiscal Policy Considerations of Legalized Recreational Marijuana"

The title of this post is the title of this new paper recently posted to SSRN authored by Finley Newman-James, who is a student at The Ohio State University Moritz College of Law.  This paper is the sixth of an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first five papers in this series are linked below.)  Here is this latest paper's abstract:

In 1975, Ohio’s 63rd Governor James A. Rhodes joined the growing trend of marijuana decriminalization by signing a bill passed by the legislature that supported amending the Ohio Revised Code to remove criminal penalties for use of marijuana.  This was the first big change to marijuana laws in Ohio.  Despite Ohio being one of the most conservative states in the country at the time, Rhodes brought Ohio to become the 6th state to relax punishments on marijuana use.  Since that time, a lot has changed regarding the status of cannabis in the Buckeye State.

This paper will first describe the past legal framework for marijuana along with current developments and proposed changes in the future, including a citizen’s ballot initiative that will appear on the November 2019 ballot that could potentially make sweeping changes to Ohio’s Constitution and marijuana law in Ohio.   This is then followed by an analysis of the potential benefits that recreational marijuana could have in respect to key fiscal budgetary issues facing the state of Ohio. 

Prior student papers in this series:

• "The Canna(business) of Higher Education"
• "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'"
• "Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"
• "Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"
• "An Argument Against Regulating Cannabis Like Alcohol"

Interesting CRS report on "Marijuana Use and Highway Safety"

Last month, the Congressional Research Service released this interesting short report titled simply "Marijuana Use and Highway Safety." Here is its introduction:

A growing number of Americans report that they use marijuana.  As more states decriminalize the use of marijuana, the question of what impact marijuana usage has on the risk of a driver being involved in a motor vehicle crash has become more pertinent.  In a survey, the majority of state highway safety offices rated drugged driving an issue at least as important as driving while impaired by alcohol.

When faced with the issue of driver impairment due to marijuana, some stakeholders tend to approach the issue using the analogy of driver impairment due to alcohol. However, there are important differences between the two substances.  The fact that alcohol reduces a user’s ability to think clearly and to perform physical tasks has been known for decades.  Extensive research has established correlations between the extent of alcohol consumption and impairment, including drivers’ reaction times. Much less research has been done on marijuana.  Marijuana is a more complex substance than alcohol.  It is absorbed in the body differently from alcohol; it affects the body in different ways from alcohol; tests for its presence in the body produce more complicated results than tests for the presence of alcohol; and correlating its effects with its levels in the body is much more complicated than for alcohol.

That marijuana usage increases a driver’s risk of crashing is not clearly established.  Studies of marijuana’s impact on a driver’s performance have thus far found that, while marijuana usage can measurably affect a driver’s performance in a laboratory setting, that effect may not translate into an increased likelihood of the driver being involved in a motor vehicle crash in a real-world setting, where many other variables affect the risk of a crash.  Some studies of actual crashes have estimated a small increase in the risk of crash involvement as a result of marijuana usage, while others have estimated little or no increase in the likelihood of a crash from using marijuana.

This CRS report addresses various aspects of the issue of marijuana-impaired driving, including patterns of marijuana use, the relationship and detection of marijuana use and driver impairment, and related state law and law enforcement challenges.  The report also references the congressionally required July 2017 report by the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), Marijuana-Impaired Driving: A Report to Congress (hereinafter referred to as NHTSA’s 2017 Marijuana-Impaired Driving Report to Congress), as well as other studies and research.

SAM releases latest big report on "Lessons Learned from State Marijuana Legalization"

The leading national group opposed to modern marijuana reform, Smart Approaches to Marijuana (SAM), has this big new report titled "Lessons Learned from State Marijuana Legalization"  Here is the short "Executive Highlights" from the start of the report:

Today’s highly potent marijuana represents a growing and significant threat to public health and safety, a threat that is amplified by a new marijuana industry intent on profiting from heavy use.

State laws allowing marijuana sales and consumption have permitted the marijuana industry to flourish, and in turn, the marijuana industry has influenced both policies and policy-makers.  While the consequences of these policies will not be known for decades, early indicators are troubling.

This report, reviewed by prominent scientists and researchers, serves as an evidence-based guide to what we currently observe in various states.  We attempted to highlight studies from all the “legal” marijuana states (i.e., states that have legalized the non-medical use of marijuana).  Unfortunately, data does not exist for several “legal” states, and so this document synthesizes the latest research on marijuana impacts in states where information is available.

Disappointingly, this report does not cover data comprehensively on any single topic from any one state nor does it effectively detail similar data across a number of states.  Rather, as seems common with SAM reports, this latest report focuses on the most troublesome data from a few states to make the case that marijuana reform is creating big problems.  In this way, the report serves as a good review of some of the strongest "data talking points" against marijuana reform, but it does not really provide a sound basis to reach sound conclusions about what lessons should be learned from modern marijuana reforms.

Illinois poised to become first big state to legalize adult use/recreational marijuana via traditional legislation

A couple of big states on the east coast, New Jersey and New York, saw efforts this year to fully legalize marijuana via traditional legislation falter.  But it seems that the biggest midwestern state, Illinois, got this done this legislative session as reported in this local article:

A recreational marijuana legalization bill will soon land on Gov. J.B. Pritzker’s desk after the Illinois House on Friday voted to pass the comprehensive measure.

The Illinois House voted 66-47 after more than three hours of debate. The Illinois Senate on Wednesday cleared the measure. The governor issued a statement applauding the bill’s passage and pledging to sign it. “The state of Illinois just made history, legalizing adult-use cannabis with the most equity-centric approach in the nation,” Pritzker said. “This will have a transformational impact on our state, creating opportunity in the communities that need it most and giving so many a second chance.”

While there are giant swaths of criminal justice and social equity reforms attached to the measure — including giving a second chance to thousands of people convicted of marijuana possession — practically speaking it will allow Illinois residents over 21 to buy cannabis from licensed dispensaries as soon as Jan. 1.

If signed into law, Illinois will become the first state to approve cannabis sales through the Legislature, instead of a ballot measure. There are laws regulating and taxing cannabis in nine states. In Vermont and Washington, D.C., cannabis possession and cultivation is legal but sales are not regulated.

The measure would also allow Illinoisans over 21 years old to possess 30 grams, or just over an ounce of cannabis flower, and 5 grams, or less than a quarter-ounce, of cannabis concentrates such as hash oil. Additionally, Illinoisans would be able to carry up to a half-gram of edible pot-infused products.

“It is time to hit the reset button on the war on drugs,” bill sponsor state Rep. Kelly Cassidy, D-Chicago, said during the debate. “What is before us is the first in the nation to approach this legislatively, deliberately, thoughtfully, with a eye toward repairing the harm and the war on drugs. We have an opportunity today to set the gold standard for a regulated market that centers on equity and repair.”...

Others weren’t convinced. State Rep. Mary Flowers, D-Chicago, said “the reset button is broken.” “The fact of the matter is nothing in this bill addresses the harm that’s been done to our community,” Flowers said. “Our community is still being used for people to make a profit and get rich and give nothing to the community.”

Amid opposition, some initiatives in the initial measure, which was filed in early May, were scaled back. A House committee this week approved changes that include allowing only medical marijuana patients to have up to five plants in a home. There were also changes made within the expungement provisions, which would have initially automatically expunged hundreds of thousands of marijuana possession convictions.

Now, convictions dealing with amounts of cannabis up to 30 grams will be dealt with through the governor’s clemency process, which does not require individuals to initiate the process. For amounts of 30 to 500 grams, the state’s attorney or an individual can petition the court to vacate the conviction.

The updated language means those with convictions for cannabis possession convictions under 30 grams can get pardoned by the governor. States attorneys would then be able to petition the court to expunge the record. A judge would direct law enforcement agencies and circuit court clerks to clear their record. This only applies to those convicted with no other violent crime associated with the charge. And it only applies for convictions that have taken place when the bill takes effect on Jan. 1....

Designed to address concerns about impaired driving, the measure would also add a DUI Task Force led by Illinois State Police to examine best practices. Those would include examining emergency technology and roadside testing.

Sales from recreational marijuana is expected to bring in $57 million in this year’s budget and $140 million next year, sponsors have said. It should eventually rise to $500 million a year once the program is fully running.

Split Colorado Supreme Court gives notable new interpretation of limits on drug-sniffing searches due to marijuana legalization

Last week, the Colorado Supreme issued a lengthy split ruling in Colorado v. McKnight, 2019 CO 36 (Col. May 20, 2019) (available here) which concludes that the state's marijuana reform initiative impacted criminal procedure rules related to drug-detection dog sniffs.  The court's ruling is summarized this way before the lengthy majority and dissenting opinions begins:

In this opinion, the supreme court considers the impact of the legalization of small amounts of marijuana for adults who are at least twenty-one years old on law enforcement’s use of drug-detection dogs that alert to marijuana when conducting an exploratory sniff of an item or area.

The supreme court holds that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older.  The supreme court further holds that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff.

The supreme court concludes by determining that there was no probable cause in this case to justify the sniff of the defendant’s truck by a drug-detection dog trained to alert to marijuana, and thus, the trial court erred in denying the defendant’s motion to suppress.  The supreme court further concludes that the appropriate remedy for this violation of the Colorado Constitution is the exclusion of the evidence at issue.  Thus, the supreme court affirms the court of appeals’ decision to reverse McKnight’s judgment of conviction.

This lengthy local press report about the ruling provides lots of context about how much is contested about this ruling. The extended headline of the press piece highlights its themes: "Did the Colorado Supreme Court just throw the state’s marijuana-legalization regime into question? The chief justice seems to think so. A case about drug-sniffing dogs could turn into a watershed moment in Colorado marijuana law. Or not. Legal experts are split."

New issue brief calls for "Using Marijuana Revenue to Create Jobs"

As detailed in this press release, yesterday "the Center for American Progress released a new issue brief calling for states and the federal government to use marijuana tax revenue to fund the creation of thousands of public sector jobs in low-income communities of color that have been historically deprived of economic opportunity due to discriminatory drug enforcement."  Here is more from the release:

The issue brief proposes a tangible way to pay for the creation of jobs in communities that have experienced the heaviest consequences of disparate criminal enforcement of marijuana.  The authors calculate that annual tax revenues from the regulated marijuana market in California and Washington state, for example, could create nearly 20,000 jobs.  This number is sure to increase as more and more Americans — 68 percent, according to a 2018 CAP/GBAO Strategies poll — favor marijuana legalization and more states consider legalizing the recreational use of marijuana as well as creating a regulated marijuana market.

The proposal is an outgrowth of CAP’s 2018 report, “Blueprint for the 21st Century: A Plan for Better Jobs and Stronger Communities,” which called for a massive investment in public sector  job creation and a jobs guarantee for highly distressed communities.

The brief further describes the need to ensure that any marijuana legalization effort leads with provisions that ensure racial equity and correct injustices that have resulted from the war on drugs.  Key recommendations include providing automatic and cost-free expungements of marijuana arrest and conviction records; reinvesting in essential services for communities most harmed by the war on drugs; and promoting equitable licensing systems and funding for minority-owned businesses.  These measures would greatly help people who face barriers to economic opportunity, employment, and other basic necessities due to the collateral consequences of a marijuana-related conviction.

The full eight-page issue brief is titled “Using Marijuana Revenue to Create Jobs” and is authored by Maritza Perez, Olugbenga Ajilore, and Ed Chung. Here is its conclusion:

Today, states are raking in billion-dollar profits for activity that sent millions of African American and Latinx individuals into the criminal justice system, trapping their families and communities in poverty for generations.  The movement to legalize marijuana presents an opportunity both to achieve justice for and to build economic opportunity in these communities.  Creating public sector jobs and other policies outlined in this issue brief acknowledge the economic impact that the war on drugs has had on low-income people of color.  With these policies, elected leaders can begin to address the structural barriers that states must rupture so that individuals from some of their most vulnerable communities have equal access to economic opportunity.

Exploring the "complicated relationship between marijuana use and parenting"

The fourth and final planned presentation (both this week and for the semester) by a student in my Marijuana Law, Policy & Reform seminar will look closely at the intersection of marijuana use and parenting. Here's a brief summary of the student's approach to this topic, along with some relevant articles she assembled:

As states increasingly legalize marijuana for medicinal and recreational use, one largely unexplored area is the complicated relationship between marijuana use and parenting.  As with other substances (both legal and illicit), marijuana can have a significant impact on the lives of both parents and children.  Parents who use marijuana likely have conflicting interests and may prioritize their own use over the care of their children.  This could take the form of neglect, through inadequate supervision, or through misallocation of family resources to buy marijuana and other non-essentials.  Parents who use marijuana also risk exposing their children to marijuana in any number of ways.  Second-hand smoke is an obvious risk, as is the potential for children to gain access to marijuana (particularly edibles).

Expectant and breast-feeding mothers are also of particular concern, as there is some data linking marijuana use at these critical stages in development to a whole host of lifelong issues in children.  As with most issues surrounding marijuana use, there simply is not yet enough data in this area.  For example, although some studies have linked marijuana use during pregnancy to particular developmental problems, existing studies have not been able to isolate marijuana as the cause (as opposed to other drugs, nicotine, etc.).  I plan on providing background on existing public health research, giving examples of how various states are dealing with this issue, and presenting issues that have not been adequately addressed by research or policy.

Readings:

"The Effect of Medical Marijuana Laws on Child Maltreatment: Evidence from State Panel Data, 1995-2014"

"Marijuana and Child Abuse and Neglect: A HEALTH IMPACT ASSESSMENT"

"The Contentious Issue of Parents Who Smoke Pot"

"Is Smoking Marijuana Child Endangerment?"

"No Cause for Marijuana Case, but Enough for Child Neglect"

"Can Legal Weed Counter Decades Of Discriminatory Drug Enforcement?"

The question in the title of this post is the headline given to this Connecticut public radio show which aired today.  I am very grateful to Professor Jenny Roberts, who was part of the show, for sending me the link to the show and also for providing this summary:

As you may know, Connecticut's proposed bill has some really interesting social justice/equity provisions – not only with expungement, but also with who will actually get the licenses in Connecticut.  The show also explored issues of how those affected negatively by drug laws over the years might now get funding, etc, to start a marijuana business. State Sen. Gary Winfield, who is sponsoring part of the legislation, is on the whole time and well worth a listen, and a Boston Globe journalist joined for one segment on the Massachusetts social equity situation.

Here is how the show's website describes the 50-minute segment:

With recreational marijuana on sale in Massachusetts, Connecticut lawmakers are looking at legalizing recreational cannabis more seriously than ever.  Meanwhile, research continues to show that the enforcement of drug laws in recent decades has disproportionately impacted communities of color.  This hour, we ask: if Connecticut legalizes recreational marijuana, can it do so in a way that corrects some of this history of discriminatory enforcement?

We talk with Judiciary co-Chair Senator Gary Winfield, who is calling for putting equity at the front of legalization efforts.  And we check in about how racial justice has — or hasn’t — come along with legalization in states that already have legal weed, from Massachusetts to California.

Minority Cannabis Business Association engages OSU College of Law 3L Chris Nani to evaluate social equity efforts in Los Angeles

I am always so very excited when students here at The Ohio State University Moritz College of Law get so very excited about marijuana law and policy.  One such student whose work I have spotlighted here is Christopher Nani, who took my marijuana seminar back in Fall 2017 and has been doing amazing work in this space ever since.  In addition to getting articles published at the Cannabis Law Report discussing federal tax treatment of cannabis businesses (see prior posts here and here) and co-hosting a podcast focused on business development in the cannabis industry (called Cannabiz with Canna-Chris), Chris has produced this notable article detailing a "Model Social Equity Equation for the Cannabis Industry."  

I describe Chris' article as notable in part because the Minority Cannabis Business Association took note of the work, and MCBA has now engaged Chris to use his equation to "score"  Los Angeles.  This press release, titled "MCBA Engages in Case Study to Rate Efficacy of Los Angeles’ Social Equity Program," explains:

The Minority Cannabis Business Association (MCBA) announced plans to take a score of social equity policies implemented by the city of Los Angeles intended to increase diversity in the burgeoning cannabis industry.  Partnering with the MCBA on this effort is Chris Nani, an Ohio State Law student who recently released a similar study that focused on these equity policies in three other California cities.

The results of Nani’s preliminary study had outcomes for Sacramento, San Francisco and even the much-lauded Oakland program that didn’t fully meet the intent of those policies, and underlines the necessity of reassessment once these programs have been implemented.  As one of the largest markets in California, Los Angeles is an important influencer in the industry and will serve as an example for future efforts on this topic.

“We are excited to see municipalities across the country starting to implement social equity programs as a way to reinvest in communities that for decades have been disproportionately harmed by the War on Drugs,” says Kayvan Khalatbari, MCBA’s Board Chair. “Now we need to ensure their intended outcomes are being met.  If they’re not, we need to reexamine those policies and work on them until we get it right. We must develop an effective and repeatable model.”

The case study will utilize an “Equity Equation”, which provides a scored assessment to rate the effectiveness of municipal social equity programs based on 10 separate factors, all of which have been determined to play a major role in the ultimate success or failure of these policies.  One factor commonly cited as a barrier to entry for people of color to find a place in the cannabis industry, regardless of policies in place, is a lack of available capital.

“Social equity programs are an important progression for the cannabis industry,” says Chris Nani. “As new markets come online and use Los Angeles as a model in their own programming, it’s critical that we understand what is working and what is not.  The equation I developed is meant to grade the efficacy of these programs and offer suggestions for improvement.  I look forward to working with lawmakers, social equity applicants and MCBA to work towards improving these policies across the country.”