Marijuana Law, Policy & Reform

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.”

New Jersey shows, yet again, the challenges of marijuana legalization done via the traditional legislative process

Full adult-use marijuana legalization has a strong winning record when the issue has been taken directly to voters via ballot initiative.  This reform has proven much more difficult through the traditional legislative process, with only Vermont able to pass a limited (non-commercialized) version of reform this way.  Today, after lots of debate in the state, New Jersey proved yet again how challenging this can be as detailed in this local story headlined "Legal weed won’t happen right now in N.J. Lawmakers call off big vote."  Here are the basics:

Leaders of the state Legislature have canceled a planned vote Monday on a bill that would legalize recreational marijuana for adults 21 and older in New Jersey, state Senate President Stephen Sweeney is set to announce.

“While we are all disappointed that we did not secure enough votes to ensure legislative approval of the adult use cannabis bill today, we made substantial progress on a plan that would make significant changes in social policy,” Sweeney, New Jersey’s top state lawmaker, said in a statement provided to NJ Advance Media. Sweeney. D-Gloucester, added that the “fight is not over.”

It’s expected that lawmakers will schedule another vote this year, but it’s unclear when that will happen. “We need to learn from this experience and continue to move forward,” Sweeney said." While this legislation is not advancing today, I remain committed to its passage.”

The vote fell apart after Gov. Phil Murphy and fellow Democratic state leaders spent more than a week feverishly trying to wrangle enough votes in the Democratic-controlled Legislature to pass the Democratic-sponsored measure. But top lawmakers said they wouldn’t hold the vote if they weren’t guaranteed to have both the 21 votes they need in the state Senate and the 41 they need in the state Assembly. As of Monday afternoon, multiple sources said, there were only 17 or 18 members of the Senate who would vote yes. But that still left leaders a few votes short....

Sweeney said earlier this year said he wouldn’t schedule another vote until after the November elections at the earliest. If they can’t get enough votes by then, it’s possible leaders could opt for asking New Jersey voters to decide in a ballot referendum next year whether to legalize weed.

The crumbling of Monday’s vote is a tough pill for Murphy, who made legalizing marijuana a key plank in his platform when he won election in 2017. He and top Democratic lawmakers have been hoping for more than a year to have New Jersey join 10 other states and Washington, D.C., that have legalized pot. But they prefer to become only the second state to do it legislatively, rather than through a ballot referendum.

Monday’s development also postpones two other measures tied to the bill: one that would expand the state’s oft-criticized medial marijuana program and another that would expunge thousands of pot convictions in the state. Murphy has said his administration will now move to dramatically increase the number of licenses for cultivators of medical marijuana as a backup plan.

Murphy and proponents of legal pot say the goal of legalization is to increase tax revenue for the state, create a brand new industry, and improve social justice because black people are three times more likely to be arrested on pot charges than whites. Recent polls have found a majority of New Jerseyans support legal pot. But many lawmakers — Democratic and Republican — have been leery, saying it could erode public safety, lead people to try more dangerous drugs, and damage communities of color.

Minority Cannabis Business Association produces new "Model Municipal Social Equity Ordinance"

There is much discussion in marijuana reform circles about how states and localities can best ensure the new growing marijuana industry develops in a diverse, socially equitable way. The latest effort to advance this agenda comes from the Minority Cannabis Business Association (MCBA), which has now released this interesting new "Model Municipal Social Equity Ordinance." Here is part of the preface of this model ordinance:

This Model Municipal Social Equity Ordinance (“Model Ordinance”) is intended to be used by municipalities that have adopted ordinances to regulate, zone and license local cannabis businesses, or are currently considering draft ordinances to do so.  As such, this Model Ordinance does not include recommended provisions for general license types (other than to add license types that lower barriers to entry or mitigate on-going criminalization of cannabis consumption), nor does it include detailed zoning and land use provisions.  The drafters of this model ordinance assume those provisions are already incorporated within the adopting municipality’s general licensing ordinance, and that the general licensing ordinance already reflects the particular circumstances of its local community.

We also assumed that the types of licenses which may be available, and the general regulatory framework surrounding cannabis businesses will be largely predetermined by the state in which the adopting local jurisdiction sits.  As such, the Model Ordinance contains only those provisions necessary to create a baseline framework for adopting and advancing social equity in the cannabis industry as official public policy -- a “minimum viable product” designed to be broadly adopted and tailored as necessary by each adopting jurisdiction.  Prevailing political realities in each jurisdiction will vary, and the Model Ordinance includes bolded and bracketed substantive terms that may be revised as necessary....

The Drafting Committee finalized this version of the Model Ordinance after incorporating input received on two previous working drafts.  The First Discussion Draft was previously circulated in October 2018 and presented to the attendees of the MCBA Policy Summit, as well as the members of the MCBA Policy Committee and the MCBA Board of Directors.  Their input was incorporated by the Drafting Committee into the Second Discussion Draft. The Second Discussion Draft was circulated for input to the MCBA Board of Directors, the NCIA Policy Council staff, Drug Policy Alliance staff as well as other select stakeholders for additional input before being finalized. Finally, please note that this Model Ordinance is intended to be a living documents, and one that can be continually improved upon. The Drafting Committee invites any and all input on the Model Ordinance, and expects to publish updated versions of the Model Ordinance periodically.

Interestingly, though the heart of the Model Ordinance is a social equity program, these heading from the model proposal show that more is covered than just business issues:

Section 1: Short Title

Section 2: Cannabis Social Equity Program

Section 3: Good Faith Effort for Equity in Employment

Section 4: Community Benefits Agreement

Section 5: Community Reinvestment Fund

Section 6: Record Change Provisions

Section 7: No Additional Restrictions Allowed on Entry Into the Cannabis Industry

Section 8: Data Collection

Section 9: Lowest Law Enforcement Priority

Section 10: Permitting Social Consumption Lounges

Section 11: Eliminating Suspicionless Drug Testing

A look back at Ohio's first effort to legalize marijuana via 2015 ballot initiative

As long-time readers know from series of posts in prior years, students in my Marijuana Law, Policy & Reform seminar develop research projects/papers around a topic of their choosing.  Students are required to make an in-class presentation during the second-half of the semester, and a few days prior to their presentations the students need to send me a set of links providing as background for the discussion they will lead.   Every year the students do an extraordinary job with their presentations, and I am professorially giddy that these  presentations are starting in class next week. 

The first student presentation planned for next is to be week aspires to "focus on what happened in Ohio’s 2015 election with ResponsibleOhio. "  The student will be taking "a look at how the results may have been shaped by the country’s past, the state’s more-recent history, and individual concerns and uncertainty of voters."  The student will also examine "where the future may lie with Ohio’s recent legalization of medical marijuana [and] give insight into the pros and cons of starting a cannabis-related business."  Here are links the student has provided as background reading:

Newspaper Articles:

• Mark Naymik & Brent Larkin, Campaign to Legalize Marijuana Use in Ohio Quietly Underway and Borrows Page from Casino Campaign, cleveland.com (Dec. 19, 2014)

• Ryan Claassen, Ohio Voters Support and Oppose Legalizing Marijuana. Wait, What?, Washington Post (Oct. 16, 2015)

• Editorial Board, Editorial: Issue 2 Risks Citizen Access to Ballot, Cincinnati Enquirer (Oct. 18, 2015)

• Laura A. Bischoff, Woman Inside Buddie the Marijuana Mascot Fired by ResponsibleOhio, Dayton Daily News (Oct. 19, 2015),

• David A. Graham, Why Did Ohio’s Marijuana-Legalization Push Fail?, The Atlantic (Nov. 3, 2015),

Past Seminar Student’s Paper: 

• Sean Klammer, Responsible Ohio: Successes, Failures, and the Future of Adult Marijuana Use in Ohio, 79 Ohio St. L.J. Furthermore 139 (2018).

 

"Growing Marijuana Industry Struggles To Attract Employees Of Color"

The title of this post is the headline of this notable new NPR piece.  Here are excerpts:

As marijuana becomes legal around the country, blacks and Latinos are often left out of new business opportunities. Advocates say people of color are often reluctant to join the growing legal marijuana economy because they were targeted far more often than whites during the war on drugs. Studies show members of such communities were arrested and jailed for illegal marijuana use far more often than whites.

As Massachusetts developed laws for legal marijuana, officials wrote what they claimed was a first-in-the-nation Social Equity Program explicitly to give members of those communities a leg up. But this part of the state law isn't working — next to no black or Latino candidates have applied for licenses in Massachusetts.

They're scared of the government. "They're scared of the government, man," said Sieh Samura, an outspoken cannabis activist. "This is still a new thing. And there's taxes, there's the government, there's all kinds of things, you know. Just because people say it's legal ... it's not welcoming for everybody."

Studies show that blacks and Latinos nationwide have been arrested and incarcerated for cannabis and other drug crimes at at least four times the rate of whites. The long-term effects of the war on drugs launched in the 1970s are still evident in many communities of color.

So, the city of Somerville, Mass., passed an ordinance requiring that 50 percent of recreational marijuana licenses go to black and Latino applicants. "We want to make sure that everyone has a real authentic opportunity to participate in that economy in the future," said Somerville Mayor Joe Curtatone. "If not, we start to lose the fabric and soul of our community. And then social inequity becomes greater, becomes vaster, and we can't allow that to happen. We're a pro-growth community, but we want to make sure regular folks are able to participate in that."...

To be a model for others, Samura and his wife Leah created a recreational marijuana business called 612 Studios. For months they've been coming to a massive marijuana cultivation facility in Milford, Mass., to participate in The Sira Accelerator, a 12-week program designed to get more people of color into the industry by doing everything from raising money, to helping with marketing, packaging and distribution.

This program is run by Sira Naturals, which grows marijuana and creates products for its own medical dispensaries and some other recreational businesses. Mike Dundas, Sira Naturals' CEO, said the company wants to help longtime marijuana advocates, like the Samuras, or folks who have been dabbling in the illegal pot market. "We see our program, the Sira Accelerator, as sort of offering a hand to those who've been operating — and have skill and passion and dedication to cannabis products — in the illicit marketplace, to come to the regulated side, to get on the books and help facilitate the start of their businesses," said Dundas.

In return for the advice and counsel, Sira takes just under a 10 percent stake in the new company. Sira also hopes the accelerator will help it open a recreational shop in Somerville, where it already runs one of three medical dispensaries. The company can't get a recreational license until black or Latino entrepreneurs do because of the city's ordinance. Dundas, who is white, admits he's scrambling to find and mentor people of color who want to open businesses in Somerville to ensure that his company can open a retail shop of its own.

Karen O'Keefe, director of state policies with the Washington, D.C.-based Marijuana Policy Project, said there have been lots of attempts around the country to help candidates from black and Latino communities, but none have worked. "None of the states have the kind of diversity that we would like to see in the cannabis industry," she said....

"States moving forward are going to look at what happened in Massachusetts," O'Keefe said, "why such good intentions didn't end up bearing as much fruit and as much diversity in the industry as was intended."

UPDATE: Not long after this posting I saw that USA Today has an even fuller discussion of these issues in this new article headlined "Drug laws have historically been racist. Marijuana activists are helping minority dealers go legal." Here is a small piece of a long article worth reading in full:

The war on drugs has for decades disproportionately devastated minority communities by punishing people like Blunt and creating a cycle of poverty, incarceration and limited employment options, legal and social justice experts say.

Now, lawmakers and legalization advocates across the country are demanding not just cannabis legalization but remedies to address decades of demonstrably racist policing, from laws that automatically expunge criminal records for marijuana dealing and possession to policies that would give minority communities assistance in building cannabis businesses....

For many marijuana legalization activists, it's now up to local governments to diversify the legal pot industry by clearing conviction records and handing out subsidies. If white men have unfairly benefited from marijuana legalization, then it's only fair that minority communities be given extra help now because they suffered more, the thinking goes.

"We actually do have to overcorrect," said Kassandra Frederique, 32, the New York state director of the Drug Policy Alliance, which is lobbying to legalize marijuana in the Empire State. "People from our communities, black and brown communities, were the one first ones to be criminalized. Why shouldn’t we be the first ones to benefit?"

Appreciating the problems when weed is allowed to grow like a weed

The cheeky title of this post is the thought I had in response to the news out of Oregon this past week, discussed in this Quartz piece headlined "Oregon has more legal cannabis than the state can consume in six years."  Here are the details:

In 2018, Oregon’s legal marijuana producers grew more than twice as much as was legally consumed, leading to an oversupply that has 6.5 years’ worth of cannabis, measured by the psychoactive compound THC, on the shelves at dispensaries and wholesale distributors.

The latest data from Oregon, which adopted its legal regime in 2014, was released this week (pdf) by researchers working for Oregon’s Liquor Control Commission, which closely regulates cannabis from production to distribution....

“For Oregon, producing a lot of marijuana is not new news; producing a lot of marijuana that is tracked in the legal system is,” writes Steve Marks, the commission’s executive director.  He notes that the state has garnered $198 million in tax revenue from the first three years of its legal cannabis regime, and that only 45% of estimated Oregon cannabis use is supplied by the medical marijuana market, legal home grows, or the black market.

But the current situation creates a “concern that [legally grown cannabis] may be diverted to the black market and/or out of state given current market conditions (high supply, falling prices, and a huge pipeline of applications for new entrants into the market),” writes Josh Lehner, an economist who works for the state government.

Now the question is whether the state government will take any action to push down supply by increasing producer license fees, limiting the maximum amount of marijuana grown in the state, or capping the number of licenses temporarily or permanently.  The researchers do observe that the 6.5 years’ worth of THC on the shelves is a deceiving estimate, since some is likely to become stale or uncompetitive with new products.

Part of the challenge is that many legal producers are getting into Oregon’s market to lay the groundwork ahead of hoped-for changes in federal laws down the line, especially since Oregon removed a residency requirement for owners.  “Businesses in Oregon’s recreational marijuana market are in some ways analogous to technology start-ups… willing to take the risk of losses today for potential large gains tomorrow,” the report notes. “However, this calculus depends on ‘tomorrow’ not being excessively far in the future and the license remaining in good standing.”

For now, the Oregon oversupply is more an “indication of speculative bets and pending market corrections,” but the longer the situation continues, the more pressure there will be on cannabis startups to make money outside the legal system.

In contrast to many other states, Oregon has relatively few limits on who can get a license to grow for the legal market. And marijuana's nickname "weed" is itself a useful reminder that marijuana is not all that hard to grown and it grows relatively quickly. So, absent certain types of regulation, it is not surprising to see an oversupply of product in the Beaver State.

Spotlighting enduring challenges making marijuana social equity programs work

Stateline has this new piece, headlined "‘Cannabis Equity’ Runs Into Roadblocks," which highlights that good implementation, and not just good intentions, must be part of modern marijuana social equity programs.  Here are excerpts:

Now, as more states legalize recreational marijuana and the federal government moves away from incarcerating nonviolent drug offenders, several cities in California are trying to atone for decades of drug enforcement that fell disproportionately upon minorities.

They’ve created what are known as cannabis equity programs, meant to welcome more minority and low-income entrepreneurs into the now-legal industry. The programs provide business development, loan assistance and mentorships to eligible owners. Hundreds have applied in the past year. But “pot equity” has struggled with growing waitlists, and some participants allege that the programs aren’t fair to the people they’re meant to be helping....

The goal of “cannabis equity” is to lower the barriers to entry into the legal cannabis industry for people who were disproportionately impacted by the criminalization of marijuana. The programs base eligibility on a variety of factors, including marijuana convictions, residency in a heavily policed district and income.

Today, several city partnership programs require that established, non-equity businesses provide an equity business with space for several years rent-free. In exchange, the non-equity company receives faster processing for city approvals. Cities such as Sacramento plan to waive up to tens of thousands of dollars in application and permit fees for eligible cannabis businesses.

But pot equity has struggled to get going. Understaffing in San Francisco’s cannabis office has left a growing waitlist of applicants, and the city doesn’t expect to begin approving businesses until sometime in 2019, said Nicole Elliott, director of San Francisco’s Office of Cannabis. She could not be more specific on timing.

Some applicants argue that the waiting period has allowed other businesses to get an unfair head start. In Oakland, some pot equity businesses claim their incubator partners never followed through on the requirement to provide them with business development assistance or a space to operate....

Creating a program to atone for decades of unjust policing — on top of building the framework for a newly legal cannabis industry — is no easy task. Oakland is setting up a $3 million fund to provide additional capital assistance to pot equity businesses, Brooks said, but it remains unclear when the fund will become available.

San Francisco applicants have raised the same issue, said Elliott, the director of San Francisco’s Office of Cannabis. The office set up an investment fund to provide financial assistance to cannabis businesses, such as low-interest loans. But the city has yet to allocate money to the fund, Elliott said.

She said San Francisco will likely receive part of the $10 million that the state set aside for local cannabis equity programs in September, which could go toward the city’s cannabis investment fund. “There are equity applicants that need money now,” Elliott said. “We will advocate aggressively for that state funding.”

As of mid-December, San Francisco had 227 applicants that qualify for the equity program. Of those, about 110 want to join the city’s incubator partnership program and receive waived permit fees. Elliott said the city will begin approving applicants next year, but she could not say when. Applicants have criticized the lengthy timeline.

San Francisco’s Office of Cannabis, which just added two new staff members to bring the total to five, is tasked with reviewing permit applications and facilitating the equity program. Elliott said adding even more staff would speed things up. In the meantime, the city has established a partnership with the Bar Association of San Francisco to provide pro bono legal assistance to equity program participants.

Malcolm Mirage, an equity applicant in San Francisco, said the long wait has caused him to burn through capital at an alarming rate.  He partnered with MedMen, a household name in the cannabis industry that is publicly traded on the Canadian Securities Exchange.

MedMen agreed to provide business development aid and an incubation space for one of Mirage’s businesses. The company also helped him negotiate leases on two other spaces, and he struck a deal that gave him six months of free rent to obtain his permits and become operational.

Mirage figured that was plenty of time. But those six months came and went, and he’s now paying expensive leases on spaces that sit empty.  “I got out of jail for selling weed and now I’m trying to do this legally,” Mirage told Stateline.  “But I’m drowning right now. My businesses are going to be in a tremendous amount of debt if the city can’t get these licenses out in the next six months.”

Notable review of where Colorado marijuana tax revenues are going

The Denver Post has a notable new series of article looking at tax revenues from its marijuana industry. Here are links to the pieces, with an interesting passage from each within:

Part 1: "Pot money helps schools, but not as much as you might think."

There has been some real impact since recreational marijuana showed up:

• Dozens of new roofs for crumbling schools across the state.
• Sprinklers in buildings built decades before they existed.
• Security systems in an age of concern for student safety.
• Additional classrooms to alleviate relentless overcrowding.
• New gyms to replace dilapidated ones.
• New schools because older ones are unsafe to enter.

But there have also been dozens of other similar projects statewide that have gone unfunded because not enough dollars are allocated to handle them all. 

Part 2: "Legalization raised a slew of money for main streets and other local public projects."

While the public’s attention has focused on the roughly quarter-billion dollars a year in marijuana-related revenue that flows into state coffers, the burgeoning marijuana business also has brought a bonanza in tax revenue for dozens of municipal and county governments.

Nobody comprehensively tracks the local figures, but as Colorado marks the five-year anniversary of legalization a Denver Post analysis fleshed out a large part of the picture based on available data: In 2017, at least $71 million was collected from recreational marijuana via local taxes and the “share-backs” provided by the state, which now returns a tenth of the total raised by its own 15 percent special marijuana sales tax.

Part 3: "Almost half of Colorado’s marijuana money can go wherever lawmakers wish."

Marijuana Tax Cash Fund ... is the largest pool of marijuana tax revenue in the state. Colorado collected $251 million during fiscal year 2017-2018, and 49 percent of that went into the Marijuana Cash Tax Fund. Three funds that support K-12 education received a collective $98 million, $16.7 million went to local governments and $12.4 million went into the general fund.

State law technically allows the General Assembly to appropriate its tax fund money for any purpose, but state legislators created a set of “allowable purposes” such as mental health treatment, marijuana research and law enforcement training and to provide services to school-age children. Each year, lawmakers tinker with the cash fund by running bills to create new grants and by adjusting how much marijuana money, if any, goes into programs they created in previous years.

An informed accounting of those states "Most Likely To Legalize Marijuana In 2019"

Tom Angell has this lengthy new Forbes piece setting forth his view of what states are worth watching for marijuana reform developments under the headline "These States Are Most Likely To Legalize Marijuana In 2019." The states are listed in alphabetical order, so we do not really get a chance to question thie article's prognostication efforts. Here is a bit of the run up to the list, followed by just the states. Click through to the full article to see the full explanation of why each state makes this cut:

With the results of last month's midterm elections — which marijuana basically won — ten states have now legalized cannabis for adults, while 33 allow medical use. Those victories at the ballot box capped a year in which the fight to reform prohibitionist cannabis policies advanced significantly at the state, federal and international levels.

The tally of states that allow the use of marijuana is poised to jump in a big way again in 2019, largely because a slew of pro-legalization candidates for governor also won at the ballot box on Election Day — giving cannabis reform bills a huge boost toward being signed into law sooner rather than later.

"2019 could be a banner year for legalization via state legislatures," Mason Tvert, spokesman for the Marijuana Policy Project, said in an email. "Several states across multiple regions of the country are strongly considering ending prohibition and regulating marijuana for adult use. A growing number of state lawmakers and governors are either getting behind these efforts or coming to the realization that they cannot hold them up much longer. The steady growth of public support we’ve been seeing around the country will likely translate into some major state-level victories for marijuana policy reform."

Here are the states that are most likely to legalize marijuana next year, in alphabetical order:

Connecticut

Illinois

Minnesota

New Jersey

New Mexico

New York

Rhode Island

Vermont

Recent developments in New Jersey showcased that it is much easier for a state to talk about full legalization of marijuana than to actually get legislation in the books. Consequently, I will be surprised if more than one or two states on this list succeed in a getting full legalization enacted in the coming year. But id a big state like New York or Illinois were to get this done in short order, I do think it quite possible that a number of smaller states might find it easier to follow suit.