Marijuana Law, Policy & Reform

"Capital Expenditure and Acquisition in Conventional Agriculture and Cannabis: A Comparative Analysis"

I am pleased to report that I am almost fully caught up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  I continue to relish the he chance to highlight great work by OSU law students and recent graduates, and the title of this post is the title of this paper authored by Steve Nosco who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract: 

Federal laws prohibiting the possession, production, and use of Cannabis create significant operational challenges for state-compliant Cannabis companies.  One of the largest challenges is acquiring the initial capital required for any new business to become self-sustaining and profitable.  Without traditional sources of capital, namely credit from commercial institutions or government lenders, only individuals with access to significant private funds can become entrepreneurs in this burgeoning industry. In the face of Federal inaction to solve this well-documented problem, States can, and should, take on a leading role.  This Paper explores existing federal programs for traditional agricultural lending and suggests how states can emulate these programs for Cannabis businesses within their jurisdictions.

"Legal-ish: An Analysis of Cannabis Law in Ohio and Recommendations for the Future of State Drug Reform"

Continuing to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center means continuing to highlight great work by OSU law students and recent graduates.  The title of this post is the title of this paper authored by John Berk who just this month graduated from The Ohio State University Moritz College of Law.  Here is its abstract:

While bans on marijuana have been eliminated in a majority of states over the past several years, Ohio continues to be stuck in the past with a limited medical program that imposes strict limitations on cultivators, dispensaries and patients.  Full legalization in Michigan and Illinois have been hugely successful, but Ohio’s timid approach has had mixed results due to overregulation and outdated ideas about cannabis users.  It is time for Ohio to move boldly on drug reform in the cannabis space with full legalization, eliminating excessive regulation, creating aggressive criminal justice reform and possibly legalizing other substances before it is left behind by its neighbors.

Rhode Island becomes latest state to legalize adult use marijuana

As reported in this local article, "Rhode Island on Wednesday joined its two neighboring states and 16 others in legalizing the recreational use of marijuana." Here is more:

Less than 24 hours after lawmakers overwhelmingly passed the bill, Gov. Dan McKee signed the measure, which promises automatic expungement of past marijuana possession convictions and reserves a quarter of new retail store licenses for minority communities disproportionally hurt by the War on Drugs.

Speaking on the steps of the State House, awash in sunshine, McKee said the law was “equitable, controlled and safe” while establishing a regulatory framework that emphasizes public health and safety. “The end result is a win for our state both socially and economically.”

The law calls for retail sales beginning Dec. 1, but it will be a while before most of the stores are open. The state’s three currently operating medical marijuana dispensaries will be the first retailers of recreational marijuana as well, followed by six others in various planning stages.

Who wins 24 other retail licenses, and when, will be up to a new three-member cannabis control commission that will be appointed by the governor. Recreational marijuana will be taxed at 20% – a new 10% cannabis tax, a new 3% tax by the community where the marijuana is sold, and the current 7% sales tax....

Cannabis use would be banned anywhere where cigarette smoking is now banned. But if it’s legal to smoke a cigarette on Main Street in West Warwick right now, you'll be able to smoke cannabis, too. That could change. The law includes language that gives communities the power to adopt ordinances to restrict or ban the “smoking or vaporizing of cannabis in public places.”... The law allows people to have three growing plants and three dried plants. [and] it will be legal to have up to an ounce of marijuana in your possession. And possession of between one ounce and two ounces will be a civil violation. Previously up to an ounce was a civil violation, much like a parking ticket, and it was illegal to possess more than one ounce. [People with cannabis convictions] can request an expedited expungement through the courts and have any costs waived. But the law has given the courts until July 1, 2024, to provide automatic expungement to all who are eligible. Under the legislation, any prior civil violation, misdemeanor or felony conviction for possession of marijuana that would be decriminalized will be automatically erased from court record systems.

The new legislation allows for up to 33 retail licenses distributed in six zones statewide, including at the three current medical marijuana dispensaries and the six others in various planning stages.

"What Tax Revenues Should Ohioans Expect If Ohio Legalizes Adult-Use Cannabis?"

The title of this post is the title of this new report available via SSRN and produced by the Drug Enforcement and Policy Center and authored by Jana Hrdinova and Dexter Ridgway. Here is its abstract:

Advocates for cannabis reform in Ohio and in other states often stress the tax revenue that can be raised through legalization.  If a citizen-initiated statute currently under consideration in the Ohio General Assembly were to reach the ballot, Ohio voters are likely to hear from reform advocates about the potential tax revenue a new cannabis industry could bring to the Buckeye State.  The purpose of this policy paper is to provide an initial estimate of potential cannabis tax revenue in Ohio that is informed by tax revenue data and trends from a select group of other adult-use states.

Based on our analysis, we are using Michigan FY 2021 data on cannabis tax revenue as our focal point for Ohio cannabis tax revenue estimates given the demographic and tax structure similarities; we are assuming a conservative rate of diminishing retail sales growth through year five of an operational legal adult-use program; we are using state population figures as our basis for calculating per capita cannabis tax revenue rates; and we are modeling for three different Ohio pricing scenarios.  Given these assumptions, the potential annual tax revenue from adult-use cannabis in the state of Ohio ranges from $276 million in year five of an operational cannabis market to $374 million in year five of operations.

Student presentation on expunging marijuana records effectively in Ohio

As students in my Marijuana Law, Policy & Reform seminar are continuing to "take over" my class through presentations on the research topics of their choice, I continue to post here background on their topic and links to relevant materials.  The fourth of this coming week's presentation is focused on record clearing, and here is how the student describes the topic and provided readings:

Effective cannabis law reform cannot occur without also addressing the harm caused to those who have obtained criminal records due to harsh drug laws.  For decades, people throughout Ohio and the rest of the country have been punished by the criminal justice system due to non-violent cannabis offenses.  Thankfully, many states have legalized, or are in the process of legalizing cannabis.  Cannabis legalization is an important step in cannabis law reform because it means people will no longer be charged for cannabis related offenses.  However, legalization alone does nothing to help those who have already obtained cannabis related charges and convictions.  The issue with having cannabis-related convictions is not just the fines or jail time that may come with it, but also the negative consequences of having a criminal record, which continues to affect offenders long after the case is closed.  Cannabis legalization, therefore, must be accompanied by expungement reform in order to help put an end to the negative consequences that those with cannabis related criminal records are experiencing.

Thus, my presentation focuses on analyzing different expungement provisions that have been included in cannabis legalization laws.  Although many states that have legalized cannabis have included provisions on expungement reform, some of these provisions are not as effective as they could be.  Based on my research, I make the following recommendations for Ohio lawmakers to take into consideration when drafting laws on cannabis expungement.  First, I recommend lawmakers to create an individual bill focused solely on cannabis expungement to avoid conflict with Ohio’s “One Subject” rule.  Second, I recommend that cannabis records should be automatically expunged for any non-violent cannabis offenses as well as other offenses that can be tied to cannabis, such as paraphernalia and loitering offenses.  Third, I recommend that there should be no waiting period for the expungement— all cannabis records should start to be expunged as soon as the law is passed.  Lastly, I recommend that the bill should create an independent committee to carry out the expungements to avoid overburdening prosecutors and court staff.

Recommended reading:

J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study 133 Harv. L. Rev. 2460 (2020).

Akua Amaning, Advancing Clean Slate: The Need for Automatic Record Clearance During the Coronavirus Pandemic, Center for American Progress (Jun. 25, 2020),

Mark Gillspie, Cleveland Seeks to Expunge 4k Minor Marijuana Convictions, Associated Press (April 7, 2022)

50-State Comparison: Marijuana Legalization, Decriminalization, Expungement, and Clemency, Collateral Consequences Resource Center (last updated Jan. 2022)

Student presentation on licensing schemes for marijuana reform in Ohio

The third of this week's presentations put on by my Marijuana Law, Policy & Reform seminar students will be focused on how Ohio might approach how setting up a licensing scheme for the marijuana industry.  Here is how the student describes this topic and some background readings:

Summary

In a regulated industry, licensing is the key that unlocks the door for (legal) opportunity.  The ever-expanding cannabis industry is no exception.  Those who hold licenses in this industry enjoy the benefit of legally-sanctioned conduct, while others assume the risks of operating in the black market. 

Ohio is currently faced with the question of whether an adult-use cannabis market should be established within the state.  As a part of answering this question, policymakers need to consider how to set up a licensing scheme for any potential industry.  There are several different considerations that need to be made in approaching such a scheme.  First, there is the issue of responding to different operators within the market and establishing different licenses for these various operators.  Next, there is the debate over whether to establish a limited license market, and how to respond to concerns over monopolization and social equity.  Lastly, policymakers must decide what qualifications will be necessary in order to obtain a license, and which actors will be excluded from such a privilege.

An Act to Control and Regulate Adult-Use Cannabis is a ballot initiative which seeks to introduce an adult-use market in Ohio, and it proposes a detailed framework for licensing this market.  This project analyzes the licensing scheme that would be established in the state, should this initiative eventually be signed into law, and evaluates how this proposed scheme responds to the policy concerns that are inherent in licensing.

Background

Full Text of Ohio 2020 Marijuana Reform Ballot Initiative

Local press article on law enforcement seizure of assets from black-market cannabis operations 

Primer on “plant-touching” cannabis businesses 

Cato Institute blog post on corruption associated with limited licensing

New Jersey Policy Perspective blog post on social equity issues associate with limited licensing

Reason Foundation report examining issues surrounding criminal conviction restrictions in marijuana licensing

Register now for "Ohio Cannabis Reform in Focus"

The quoted portion of the title of this post is the title of this exciting event taking place next month, on April 7, 2022 from noon-2:30 pm as a  hybrid even in person in Saxbe Auditorium in Drinko Hall at The Ohio State University Moritz College of Law and also on Zoom.  Folks can and should Learn More and Register at this link.  Here are the basics about the event:

The year 2022 might see significant cannabis reforms in the state of Ohio, both to the existing medical marijuana regime as well as the proposed legalization of adult-use marijuana. Please join the Drug Enforcement and Policy Center for two expert panels that will put focus on these two possible routes to reform and the implications they may have for patients and Ohioans alike.

Medical Marijuana Reform panel
noon-1:10 p.m. EDT

After three years of operation, the Ohio Medical Marijuana Control Program continues to grow and yet continues to be plagued by high levels of patient dissatisfaction due to access limits and high costs. The recent approval of dozens of new dispensary licenses comes as major reform bills have been introduced in the Ohio General Assembly with the aim of improving the Ohio MMCP's functionality for both patients and the cannabis industry. Please join our panel of experts as we discuss on-going and proposed reforms, why they are needed and how they could impact the various stakeholders.

Panelists:
Ohio Senator Steven Huffman
Andrew Makoski, Administrative Attorney, Ohio Department of Commerce
Additional panelist TBA

Adult-Use Marijuana Reform panel
1:20-2:30 p.m. EDT

The fall of 2021 was eventful when it comes to Ohio marijuana reform proposals. Two major bills were introduced in the Ohio General Assembly, and a voter-initiated statute campaign collected enough signatures to be sent to the General Assembly for considerations. Yet, despite polling suggesting public support for these kinds of reforms, the Ohio political leadership appears unlikely to advance adult-use legalization in 2022. Please join us for a panel of experts and policy advocates as they discuss the future of marijuana legalization in Ohio as a matter of politics and policy, including the arguments for and against reform and the possible consequences of action or inaction on the part of Ohio General Assembly.

Panelists:
Ohio Representative Ron Ferguson
Thomas Haren, Partner, Frantz Ward
Jodi Salvo, Director of Substance Use Prevention Services, OhioGuidestone

Thrilled to be speaking at SXSW panel on "Post Pot Legalization: The Good, The Bad & The Ugly"

I have the great honor and pleasure of being in Austin for about 24 hours to serve as a presenter on this panel at SXSW, titled "Post Pot Legalization: The Good, The Bad & The Ugly." The panel is part of a series of great panels presented by Stand Together Trust tomorrow, and here is the description of my panel:

Marijuana reform has been a long-time coming policy priority in the eyes of the nation.  It is an issue that has united a number of unlikely allies and deepened divides.  There’s no question that marijuana is on track to become fully legalized – the question becomes what happens next?

This group of experts, influencers, policymakers and academics will offer insights into upcoming trends including the good, the bad and inevitable of how a post-legalized America will move forward.

I am so looking forward to the discussion during this panel, and I have been told that records will be available sometime after the event.

Notable Code for America paper on "Automatic Record Clearance Policies in Legalization and Decriminalization Legislation"

I just saw this recent 18-page report from the folks at Code for America.  The full title of the report highlights the goals and essential contents of this notable new document: "Recommendations for Automatic Record Clearance Policies in Legalization and Decriminalization Legislation: 11 best practices for creating high-impact, implementable policies that clear conviction records — automatically."   Long-time readers know I have long been particularly interested in criminal justice impacts of marijuana reform and especially record clearance efforts.  (I wrote one of the first big explorations of this topic in my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," and more recently co-authored another piece titled "Ensuring Marijuana Reform Is Effective Criminal Justice Reform.")

This new document is a great primer on this enduring topic, and this two-pager provides the particulars of the 11 recommendations in the full report.  But I would urge everyone to take the time to check out the full report, and here is part of its text:

Our recommendations are presented in three categories.  First are recommendations about the process of automatically clearing records.  They include an advisory against relying on petition-based record clearance, a statement on the importance of the process being initiated and coordinated by a state-level agency, and an explanation about why there need to be deadlines attached to every major milestone of the automatic record clearance process.  These recommendations are very important for implementation, but are also important to maximizing impact.  In order to build public trust in automatic record clearance, we close this section with a recommendation that government study and publicize findings on the impact of automatic record clearance, especially as it relates to equity-related metrics such as racial disparities.

Next are recommendations about who should be eligible for automatic record clearance.  In order to maximize impact, legislation needs to provide eligibility that is as expansive as possible.  The recommendations explain that, at a bare minimum, all records should be cleared for conduct that is no longer criminalized or can no longer be charged.  We advise against including conditions that disqualify people from eligibility because they reduce impact and also make implementation more challenging. Expansive eligibility must be anchored in the law, so we offer an advisory to be as specific as possible when drafting legislation — leave nothing open to interpretation because that causes challenges for implementation.  We also recommend that after a bill is passed, no system actors (e.g. judges, prosecutors) should have discretion over who gets relief in the process of automatically clearing records because it leads to inequity and is nearly impossible to implement.

Finally, we offer recommendations about who should have access to and jurisdiction over cleared records.  People living with convictions should be able to access confidential documentation about their criminal case histories, whether their records are cleared or not, and there is a big opportunity for government to offer this as a human-centered, trauma-informed digital service.  We recommend that courts maintain confidential documentation of records that have been affected by record clearance rather than having all traces of records completely destroyed.  We also recommend that courts maintain jurisdiction over these records so that people can continue to exercise their legal rights to pursue any other post-conviction relief remedies besides automatic record clearance, and so that people can access the information about their cleared records should they need it in the future.

Initiative effort to legalize marijuana in Ohio advances to legislative consideration, on track for Nov 2022 vote if Ohio General Assembly does not act

As reported in this local article, headlined "Recreational marijuana proposal clears another hurdle, heads to Ohio legislature before November ballot," an interesting reform effort in the Buckeye State is now one step closer to getting recreational marijuana on Ohio ballot this year.  Here are the details:

Ohio Secretary of State Frank LaRose told state legislative leaders in a Friday letter that a proposed initiated statute that would legalize recreational marijuana obtained enough signatures to get on the November ballot, and now the General Assembly has four months to consider passing the measure. State law requires at least 132,887 valid signatures to get on the ballot, which the Coalition to Regulate Marijuana Like Alcohol obtained. County boards of election recently finished verifying the signatures, and LaRose sent the letter to lawmakers.

But before the proposal makes the Nov. 8 ballot, the General Assembly gets to take a stab at passing the measure or passing it in an amended form. According to the Ohio Constitution, if lawmakers fail to pass a proposal, the coalition can circulate more petitions, demanding it appears on the ballot in the next general election.

The coalition, made up of businesses in Ohio’s medical marijuana industry, prefers the legislature to pass a law expanding the program to Ohioans age 21 and older. However, it also said that it has polling showing that marijuana is no longer a partisan issue in Ohio, and it believes the initiated statute would pass at the polls. “We are ready and eager to work with Ohio legislators over the next four months to legalize the adult use of marijuana in Ohio,” coalition spokesman Tom Haren said in a statement. “We are also fully prepared to collect additional signatures and take this issue directly to voters on November 8, 2022, if legislators fail to act.”

Under the proposal, adults would be allowed to purchase, possess and grow marijuana at home. Existing Ohio medical marijuana dispensaries could expand their businesses to sell to adults 21 and older, and new marijuana businesses could be added to accommodate recreational demand. Marijuana purchasers would be taxed 10% at the point of sale for each transaction. The coalition estimates recreational marijuana revenues could generate $400 million a year in new revenue.

Sensing the pressure from the Just Like Alcohol proposal, the legislature has advanced several marijuana bills lately. But none of them have moved across the finish line. On Tuesday, the Ohio House Health Committee advanced a bill to legalize marijuana for people on the autism spectrum. On Dec. 16, the Ohio Senate sent to the House a bill that would legalize marijuana to any patient whose symptoms ‘may reasonably be expected to be relieved by the drug. Democratic and Republican lawmakers also introduced bills that would legalize recreational marijuana.

Those of us working at the Drug Enforcement and Policy Center, which is based at The Ohio State University Moritz College of Law, have been closely following this initiative and all the other marijuana reform proposals being actively discussed in the Buckeye State.  DEPC has created a set of materials to aid in understanding the Ohio initiative process as well as the substantive particulars of different legislative reform proposals.  These Ohio materials are collected here under the heading "A Comparison of Marijuana Reform Proposals in Ohio." 

A few prior recent related posts:

• "Cannabis Crossroads: What’s in Store for Marijuana Reform in Ohio?"
• Initiated statute effort to legalize marijuana in Ohio advances with submission of signatures to prompt legislative consideration
• Notable and dynamic marijuana legalization efforts in bellwether (or deep red) Ohio

Detailing how state marijuana reforms may increase (at least the visibility of) illegal operators

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.

Take a break, Delta 8, Delta 8, take a break ... we can check the laws, but we're still a ways away from legal clarity

I am gearing up to teach my marijuana seminar for the first time in two years, and that necessarily means having to prepare for new discussions about new issues in an arena where legal and marketplace reforms are always fast-moving.  One brand new issue, for example, is the emergence of a wide array of Delta-8 THC products and all the legal uncertainty that they engender.  (As my post title reveals, at least for hard-core REM fans, I cannot help but hum the great REM song Driver 8 whenever I think about Delta 8 issues.)

Usefully for me (and perhaps for others), I just saw this recent piece providing an overview of state laws and other matters related to Delta 8 THC products.   Though industry-delta-friendly, this article still provides a helpful review of various basics under this full headline: "Delta-8 is Available in 28 States While Others Try to Ban It: Several U.S. states preemptively restrict or outright ban delta-8 THC as federal regulators swoop in to clarify its legality."  Here are some excerpts from the lengthy piece:

Delta-8 THC has been a sensation in the country.  Its popularity soared throughout 2020 and many believed its reign of euphoric bliss would continue into 2021 and beyond.  However, the federal government and the DEA are swooping in to ruin all the fun.

In April, alone, several U.S. states either restricted or banned delta-8 THC, sparking outcry from users, companies, manufacturers, and vendors within the cannabis industry. So, why are U.S. states banning delta-8 THC? Which ones have already banned it? What have the federal government and the DEA got to do with this?....

Delta-8 is one of 113 cannabinoids found in varieties of cannabis (hemp or marijuana) and a variant of delta-9-tetrahydrocannabinol (THC). It’s psychoactive and intoxicating, causing a “high” when consumed. However, when compared to delta-9 THC, the effects are far milder and better suited to beginners looking to enjoy the euphoric effects without the side effects commonly associated with delta-9. Delta-8 THC can now be found in several product types such as distillates, vape cartridges, oils, and flower....

In 2018, the federal government under the Trump administration, signed the Agriculture Improvement Act (2018 Farm Bill), legalizing hemp and all hemp-derived cannabinoids.... However, in 2020, the DEA issued a controversial interim final rule that sought to bring the Farm Bill further in line with the Controlled Substances Act (CSA), spelling trouble for not only delta-8 but also for delta-10 THC.

Within this final rule, the DEA stated all “synthetically-derived tetrahydrocannabinols remain schedule I controlled substances”. Why is this significant and how is it related to delta-8? Well, in order for companies to have enough delta-8 THC in their products, it must be converted from cannabidiol (CBD) via a structural isomerization process conducted under laboratory conditions. This isomerization process takes CBD, alters its molecular structure, and turns it into delta-8. Since it’s produced by chemical or biochemical synthesis and not sourced straight from the hemp plant itself, the DEA believes delta-8 is a synthetic substance.....

Is delta-8’s safety in question? Yes. Delta-8’s safety is in question. Why? Because it’s a psychoactive and intoxicating delta-9 THC variant that’s recently exploded into an unregulated market with very little research verifying its effects.

Rounding up interesting marijuana/drug policy "year in review" postings

I saw this afternoon two notable "year in review posts," and there are links:

From Marijuana Moment, "Here Are The Biggest Marijuana, Psychedelics And Drug Policy News Stories Of 2021"

From NORML, "2021 Year in Review: NORML’s Top Ten Events in Marijuana Policy"

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.”

"Growing Up: Vertical Integration in the Cannabis Industry"

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.

Initiated statute effort to legalize marijuana in Ohio advances with submission of signatures to prompt legislative consideration

As reported in this local article, headlined "The Just Like Alcohol campaign submits signatures to state, one step closer to getting recreational marijuana on Ohio ballot next year," a notable effort to advance marijuana reform in the Buckeye State advanced a bit today.  Here are the basic details:

A group of Ohio medical marijuana businesses with a proposal placing recreational cannabis on the ballot said they submitted 206,943 signatures to Ohio Secretary of State Frank LaRose’s office Monday.  The submission of signatures is just the latest step in the winding process to get the issue on the November 2022 ballot....

The Coalition to Regulate Marijuana Like Alcohol campaign needed 132,887 signatures from at least 44 of Ohio’s 88 counties by Dec. 27.  The campaign’s spokesman, Cleveland attorney Tom Haren, said campaign workers also verified signatures as they came in.  “The success of our petition drive shows just how eager Ohioans are to end prohibition and legalize the adult use of marijuana,” Haren said. “We look forward to receiving the results of the Secretary of State’s review, and are eager to begin working with legislators on this important issue.”

If county election officials verify the signatures, the proposal will go before the Ohio General Assembly, which gets to first stab at creating a law based on it.  If the legislature fails, the proposal will go on the ballot as an initiated statute.  Haren said the campaign would prefer if the legislature passed a law.

Under the proposed law, Ohioans ages 21 and older could buy and use marijuana.  They could grow up to six plants per person and 12 plants per residence.  It would create a Division of Cannabis Control under the Ohio Department of Commerce to license, regulate, investigate and penalize adult-use cannabis operators, testing laboratories and individuals who would be required to be licensed.

Existing Ohio medical marijuana growers could expand their cultivation areas once they receive an adult-use cultivator license, the proposal says.  Nine months after the proposed law goes into effect, the state would have to issue recreational licenses for existing medical marijuana dispensaries, cultivators, processors and testing laboratories if they complied with other provisions of the proposed law....

People who buy recreational marijuana would be taxed 10% at the dispensaries, and have to pay any other state and local sales taxes at the time of the purchase.  Of that, 36% of tax revenues would go to communities with recreational dispensaries; 36% to a social equity and jobs fund that would seek to “redress past and present effects of discrimination and economic disadvantage” for communities that have been disproportionately affected by marijuana prohibition, such as the more severe criminal penalties for Black men in comparison to white men possessing the same levels of marijuana; 25% to substance abuse and addiction efforts; 3% to the Division of Cannabis Control to support the costs of regulation....

To head off the initiated statute, the legislature is considering a few bills to broaden marijuana access.  Last week, the Ohio Senate passed and sent to the House a bill that would expand medical marijuana to anyone with a condition that would “reasonably be expected to be relieved” by the drug. It would increase cultivation areas and changes the medical marijuana regulation scheme, which currently is divided among three state agencies, to one under the Ohio Department of Commerce.

Those of us working at the Drug Enforcement and Policy Center, which is based at The Ohio State University Moritz College of Law, have been closely following this initiative and all the other marijuana reform proposals being actively discussed in the Buckeye State.  DEPC has created a set of materials to aid in understanding the Ohio initiative process as well as the substantive particulars of different legislative reform proposals.  These Ohio materials are collected here under the heading "A Comparison of Marijuana Reform Proposals in Ohio."  That page includes this link to the original graphic appearing above that we have created to follow the Ohio initiative process, and here is just a sampling of some of the original Ohio materials to be found at the page:

• Comparison of Recreational Marijuana Reform Proposals and Existing Ohio Medical Marijuana Control Program as of December 2021
• Comparison of SB 261 Medical Marijuana Reform Proposal to Existing Ohio Medical Marijuana Control Program as of December 2021
• The Ohio Initiated Statute Process for An Act to Control and Regulate Adult Use Cannabis

"Fair and Square: How to Effectively Incorporate Social Equity Into Cannabis Laws and Regulations"

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.

NORML releases online "2021 Legislative Report" detailing "50 laws liberalizing marijuana policies in more than 25 states"

Via this Facebook posting, NORML noted its new legislative report detailed that "lawmakers in 2021 enacted over 50 laws liberalizing marijuana policies in more than 25 states."  This online report provides all the details and includes these introductory passages:

2021 was a significant year for marijuana policy reform. Among the most significant developments, legislatures in five states enacted laws legalizing adult-use marijuana possession and regulating retail cannabis markets.  This marks a change from past years, when similar laws were primarily enacted via citizens’ initiatives, not by legislative action. In total, 18 states — comprising nearly one-half of the US population — now have laws on the books regulating adult-use marijuana production and retail sales.

Many states also took actions facilitating the expungement or sealing of past marijuana convictions. Such provisions are now generally part and parcel of any adult-use legalization law. In all, state officials have vacated over 2.2 million marijuana convictions in recent months.

With respect to medical cannabis policies, numerous legislatures took steps in 2021 to expand patients’ access to marijuana products.  These actions included expanding the pool of patients eligible for medical cannabis, expanding the number of licensed providers, and easing pathways for patients to obtain a medical marijuana recommendation.  Currently, 36 states regulate medical cannabis distribution to qualifying patients.

These legislative actions reflect the reality that the majority of the public supports meaningful marijuana reforms.  According to recent polling data, nearly seven in ten Americans, including majorities of all major subgroups by gender, age, income and education, and including majorities of Democrats, Independents, and Republicans, believe that the use of marijuana should be made legal.  Only eight percent of adults still favor its continued criminalization.

Public and political support for these legislative changes in marijuana laws will continue growing in 2022 and beyond.  As we look ahead to next year’s legislative session, we expect to see lawmakers advance with many of the same issues in other states, and we also expect voters in several jurisdictions to decide on citizen-initiated ballot measures next November.

"Cannabis Crossroads: What’s in Store for Marijuana Reform in Ohio?"

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.

Panelists

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

Moderator

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

California Supreme Court rules Prop 64 did not undo criminalization of possession of cannabis in prison

This past week, the California Supreme Court ruled in People v. Raybon, No. S256978 (Cal. Aug. 12, 2021) (available here), that state prisoners cannot legally possess marijuana while in prison.  The start of the court's ruling highlights why this was not quite a no-brainer given the law of Proposition 64:

This case requires us to interpret Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 64 or the Act)).  The question we must answer is whether Proposition 64 invalidates cannabis-related convictions under Penal Code section 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility.  Although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions.  One such exception provides that the Act does not amend or affect “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation . . . .” (Health & Saf. Code, § 11362.45, subd. (d).)  The Attorney General contends this exception applies to violations of Penal Code section 4573.6, meaning that possession of cannabis in a correctional facility remains a felony. Defendants disagree, arguing that because the exception only refers to “[l]aws pertaining to smoking or ingesting cannabis,” it does not apply to laws that merely criminalize possession of cannabis.

Ultimately, we find the Attorney General’s proposed reading of Health and Safety Code section 11362.45, subdivision (d) to be more persuasive. As discussed below, the phrase “[l]aws pertaining to smoking or ingesting cannabis” (ibid.) is broad enough to encompass statutes that criminalize possession. Moreover, there is no law that makes it a crime to smoke, ingest or use cannabis (or any other form of drug) in prison. Instead, the Legislature has taken a “ ‘ “prophylactic” ’ ” approach to the problem of drug use in prison by criminalizing only the possession of such drugs. (People v. Low (2010) 49 Cal.4th 372, 388.) Thus, under defendants’ interpretation, section 11362.45, subdivision (d)’s carve-out provision would fail to preserve any preexisting law regulating cannabis in prisons from being “amend[ed], repeal[ed], affect[ed], restrict[ed], or preempt[ed]” (§ 11362.45), and would instead render the possession and use of up to 28.5 grams of cannabis in prison entirely lawful.  It seems unlikely that was the voters’ intent.  Stated differently, it seems implausible that the voters would understand the requirement that Proposition 64 does not “amend, repeal, affect, restrict, or preempt” any “[l]aws pertaining to smoking or ingesting cannabis” (§ 11362.45, subd. (d)) to convey that, as of the date of the initiative’s enactment, possessing and using up to 28.5 grams of cannabis would now essentially be decriminalized in prisons.  In our view, the more reasonable interpretation of section 11362.45, subdivision (d) is that the statute is intended “to maintain the status quo with respect to the legal status of cannabis in prison.” (People v. Perry (2019) 32 Cal.App.5th 885, 893.)  Thus, possession of cannabis in prison remains a violation of Penal Code section 4573.6.

Noting a dozen states that may be voting on marijuana and other drug reforms in 2020

Kyle Jaeger at Marijuana Moment has this helpful article about developing drug reform ballot initiatives under the headline "These States Could Have Marijuana And Psychedelics Legalization On The Ballot In 2022."  I recommend the full piece, and here are the highlights (with links from the original):

Marijuana reform has advanced in numerous state legislatures in the first half of 2021, with lawmakers enacting four new legalization laws so far this year. Now, activists in roughly a dozen states are moving to put cannabis legalization proposals directly before voters in 2022.

Across the country, advocates are in the early stages of drafting proposals, collecting signatures and engaging in public outreach to build support for medical and recreational cannabis legalization measures that they hope to see voted on next year. In at least one state, activists are working to qualify a measure to legalize psychedelic mushrooms for next November’s ballot. And in others, lawmakers may take it upon themselves to put cannabis referendums up for the general election without the need for citizen petitions....

Here’s a breakdown of where cannabis legalization and other drug policy reforms could be decided by voters in 2022, as well as a look at a handful of local efforts to enact marijuana policy changes via municipal ballot initiatives this year.

Arkansas

Arkansas activists are collecting signatures to place adult-use marijuana legalization on the state’s 2022 ballot....

California

California psychedelics activists recently filed a petition for the 2022 ballot to make the state the first in the nation to legalize psilocybin mushrooms for any use....

Idaho

Advocates in Idaho are working to advance separate measures to legalize possession of recreational marijuana and to create a system of legal medical cannabis sales....

Maryland

Maryland’s House speaker recently pledged that lawmakers will pass legislation to put the question of marijuana legalization before voters as a referendum on the 2022 ballot....

Mississippi

No initiatives have been filed for the 2022 ballot so far, but advocates say it’s possible a campaign could launch if the legislature fails to enact medical cannabis legalization during a special session this year or ends up passing a bill that has less robust patient protections than they want....

Missouri

A group of Missouri marijuana activists recently a number of separate initiatives to put marijuana reform on the state’s 2022 ballot, a move that comes as other advocacy groups are preparing separate efforts to collect signatures for cannabis ballot petitions of their own....

Nebraska

Nebraska marijuana activists are gearing up for a “mass scale” campaign to put medical cannabis legalization on the state’s 2022 ballot after the legislature failed to pass a bill to enact the reform this session....

North Dakota

After a House-passed bill to legalize marijuana in North Dakota was rejected by the Senate in March, some senators hatched a plan to advance the issue by referring it to voters on the 2022 ballot....

Ohio

Ohio marijuana activists recently unveiled a new plan to legalize cannabis in the state via the ballot as lawmakers pursue separate reform legislation....

Oklahoma

Oklahoma advocates are pushing two separate initiatives to legalize marijuana for adult use and overhaul the state’s existing medical cannabis program....

South Dakota

South Dakota activists recently filed four separate legalization measures with the state Legislative Research Council — the first step toward putting the issue before voters next year if the state Supreme Court upholds a lower court ruling that overturned the legal cannabis measure that voters approved last November....

Wyoming

Activists are seeking to put separate measures to legalize medical cannabis and decriminalize adult-use marijuana before voters next year — and the secretary of state’s office recently approved the latest version of their proposed ballot language, freeing up advocates to gather a requisite 100 signatures per initiative in order to proceed to the next step.