Marijuana Law, Policy & Reform

Notable and dynamic marijuana legalization efforts in bellwether (or deep red) Ohio

Perhaps because I live and work in Ohio, I still tend to consider the state a national bellwether politically.  But, in recent elections (due in part to gerrymandering as well as to other factors), the state has been quite red politically with  GOP candidates winning the vast majority of statewide and local elections.  Whether now considered a bellwether or a deep red state, recent developments on the marijuana reform front strike me as quite interesting and worth watching in the months ahead.  Here are the basics from two great Marijuana Moment articles:

From July 15, "Ohio Lawmakers To File First-Of-Its-Kind Marijuana Legalization Bill As Activists Pursue Local Reforms":

Ohio lawmakers are preparing to file a bill to legalize and regulate marijuana in the state. This would mark the first time such a proposal to allow recreational cannabis commerce has been introduced in the legislature. Rep. Casey Weinstein (D) is sponsoring the legislation alongside Rep. Terrence Upchurch (D). While the text of the measure has not yet been released, the lawmakers circulated a co-sponsorship memo to colleagues on Thursday to shore up support for the effort in advance of its formal introduction....

The bill would legalize possession of up to five ounces of cannabis for adults 21 and older and allow them to cultivate up to 12 plants for personal use. It will also include provisions to expunge prior convictions for possession and cultivation activities that are being made legal under the measure.

A 10 percent excise tax would be imposed on marijuana sales, with revenue first going toward the cost of implementation and then being divided among municipalities with at least one cannabis shop (15 percent), counties with at least one shop (15 percent), K-12 education (35 percent) and infrastructure (35 percent).

From July 27, "Ohio Marijuana Activists Launch Ballot Campaign To Push Lawmakers To Enact Legalization":

Ohio marijuana activists have a new plan to legalize cannabis in the state as lawmakers pursue separate reform legislation.  Voters rejected a 2015 legalization initiative, and advocates suspended a campaign to place another measure on the 2020 ballot due to the coronavirus pandemic.  But on Tuesday, the Coalition to Regulate Marijuana Like Alcohol (CTRMLA) launched a new effort to implore legislators to enact the policy change.

The group submitted the requisite 1,000 signatures to the Ohio attorney general’s office on Tuesday.  Officials now have 10 days to review the summary and text to ensure that it is “fair and truthful” and approve it for circulation. Several existing medical cannabis businesses are backing the measure....

Unlike past efforts, the new measure is a statutory, rather that a constitutional, proposal.  If supporters collect 132,887 valid signatures from registered voters, the legislature will then have four months to adopt the measure, reject it or adopt and amended version.  If lawmakers do not pass the proposal, organizers will then need to collect an additional 132,887 signatures to place the measure before voters on the ballot in 2022.

The start of an statutory initiative campaign, which gives the Ohio General Assembly a chance to act on proposed reforms before the proposal goes directly to the voters, strikes me as especially shrewd and interesting.  This approach will likely keep the issue in the news in ways that ought to be helpful to reform proponents (e.g., they can discuss tax revenues and the need for Ohio to keep up with its reform neighbors); and this approach may require many state legislators to have to express a position on reform in a run-up to an off-year election in which a topic like marijuana reform could help turn out some extra voters.  Interesting times.

What do Connecticut, South Dakota and Virginia all have in common today?

Since you are reading this blog, you probably know that the answer to the question in the title of this post has to do with marijuana law. policy and reform.  Specifically, this new article from The Hill, headlined "Activists see momentum as three new states legalize marijuana," explains:

New laws legalizing marijuana for recreational or medical use take effect in three states on Thursday, significantly expanding the number of Americans who will have access to consumable cannabis products. The new laws may give new momentum to the push to legalize marijuana across the country as supporters begin circulating new ballot petitions and legislators drop their historical reluctance to marijuana reform.

Residents in Virginia and Connecticut will be allowed to legally possess and use marijuana for recreational purposes after lawmakers in those states approved new measures earlier this year. In South Dakota, a voter-passed ballot measure legalizing medical marijuana takes effect.

The newly effective laws bring the number of states where recreational marijuana is legal to 18. Sixteen other states allow marijuana use for medical purposes, but not for recreational purposes....

Regulators in both Virginia and Connecticut still have work to do before legal retail sales of marijuana products begin. Lawmakers in Virginia plan to debate the outlines of the retail market when they return to session in Virginia, including provisions that would promote minority ownership of marijuana-related businesses. Gov. Ralph Northam (D) has said he plans to name the first executive and the first board members of the newly created Virginia Cannabis Control Authority in the coming days. Legal sales are likely to begin by 2024, said Karen O’Keefe, director of state policies at the Marijuana Policy Project.

In Connecticut, the first retail dispensaries are expected to open in 2022. Until then, sales remain illegal, though possession of anything under 1.5 ounces in public — or 5 ounces in a protected container — is now legal. Connecticut residents must wait another year before they are legally allowed to grow their own marijuana. Residents will be limited to six plants, including three that are mature and three that are immature.

South Dakota voters approved ballot initiatives to legalize both medical and recreational marijuana, but only the medical regime will take effect Thursday after a state judge struck down the recreational measure on constitutional grounds. Residents of South Dakota will only be able to possess marijuana if they have a valid registration card. State regulators have until Nov. 18 to start issuing those cards. State-licensed dispensaries are expected to open by next year....

Supporters of legal marijuana say they now intend to turn their focus to the two remaining New England states where recreational pot is not yet legal, New Hampshire and Rhode Island. The Rhode Island legislature, controlled by Democrats, has made moves toward a recreational regime, while the New Hampshire legislature, run by Republicans, has been more reluctant. Backers are also eyeing North Carolina, where a state Senate committee voted for the first time to advance a measure legalizing medical marijuana.

In Florida, supporters were blocked from circulating petitions to qualify a measure for the 2022 ballot after the state Supreme Court ruled the ballot language was misleading, though those supporters are likely to try again. Ballot measures are in various stages of circulating petitions for marijuana legalization measures in Arkansas, Idaho, Mississippi, Missouri, Nebraska and North Dakota.

“I would not be surprised that by the end of 2022 we could be seeing half of the states in the country having adopted cannabis for full use,” Hawkins told The Hill.

But opponents of legal marijuana expansion say supporters are reaching the limit of states where they can make progress, either through the ballot initiative process or through the legislature. Legal marijuana bills died this year in states like Delaware and Maryland, in spite of large Democratic majorities that run both legislatures. “I think the marijuana industry is running out of states to pass legalization in,” said Kevin Sabet, author of "Smokescreen: What the Marijuana Industry Doesn’t Want You to Know" and head of Smart Approaches to Marijuana, a group that opposes legalization. “The easy wins for the pot industry are beginning to dry up.”

Connecticut on verge of becoming 18th state to fully legalize marijuana (and fifth state in 2021)

As reported in this local article, headlined "A bill legalizing marijuana cleared the Connecticut House of Representatives on Wednesday; the measure could receive final approval in the Senate on Thursday," it looks like the Nutmeg State is now getting very close to legalizing marijuana fully for adult use.  Here are the basics:

Following more than seven hours of debate, the Connecticut House of Representatives avoided a threatened gubernatorial veto and approved a revised bill that would legalize marijuana in the state.

The measure cleared the House by a largely party-line vote of 76 to 62. Twelve Democrats joined all but one Republican -- Rep. Rick Hayes of Putnam -- in voting no. The bill could come up for a final vote in the Senate as soon as Thursday.

“Connecticut’s time has finally come,” declared Rep. Steven Stafstrom, a Democrat from Bridgeport, who helped shepherd the bill through the House. “We take the next step as this chamber in recognizing the war on drugs has failed us and the criminalization of cannabis was the wrong course of action for our state and for our nation.”

Rep. Juan Candelaria, a New Haven Democrat who has been advocating for the legalization of cannabis for years, said the bill has one of the nation’s strongest social equity provisions. “We’re able to repair the wrongs of the past and ensure that these communities who have been disproportionately impacted are made whole,’' Candelaria said.

The sweeping, 300-page bill, which would legalize cannabis for adults 21 and older, contains a number of provisions, from setting limits on THC content to funding programs to address addiction and mental health. But for many lawmakers, the most vexing part of the legislation is the equity section, which is designed to provide those hurt by the criminalization of cannabis would have an expedited opportunity to enter the potentially lucrative market.

Paul Mounds, Gov. Ned Lamont’s chief of staff, said an earlier version of the bill did “not meet the goals laid out during negotiations when it comes to equity and ensuring the wrongs of the past are righted.”

At a briefing before the debate began, House Speaker Matt Ritter said most members of the Democratic caucus are comfortable removing the language Lamont finds objectionable. After all, he said, it was not part of the original bill that lawmakers crafted in coordination with Lamont’s office.

The bill’s equity provision was a key sticking point, but it wasn’t the only issue some lawmakers found objectionable. Republicans expressed opposition to the very notion of a legal marijuana market, saying it would lead to a rise in crime, a spike in addiction and a host of other societal ills. Rep. Tom O’Dea, R-New Canaan, said his criticism of the measure is based on science. He cited a study by U.S. Department of Health and Human Services that found marijuana use among 12- to 17-year-olds rose in states that legalized cannabis. “Youth use will increase,’' he said.

Rep. Holly Cheeseman, R-East Lyme, noted that much of the marijuana debate focused on equity and the marijuana marketplace. “I know there are good people in this chamber,’' she said. “I know this is motivated by wanting to right the wrongs of the past ... please, this is not the way.”...

Not all of the opponents were Republicans. Rep. Jonathan Steinberg, a moderate Democrat from Westport, said he has long struggled with marijuana legalization. “This is a tough vote,’' Steinberg said. “Frankly no state to date has done well in their first pass in introducing marijuana. ... I’m still uncomfortable. I fully expect we will be back next year and the year after that making needed changes to ensure safety and reliability and equity.” Steinberg introduced and later pulled an amendment that would have barred “home grown” cannabis in Connecticut. He ultimately voted yes on the bill....

Debate over the question of social equity unfolded over the past few days, creating chaos at the Capitol and at one point, throwing the fate of legalization into question. The earlier version of the bill backed by Lamont contained a geographic definition of equity, giving preference to people from cities that have borne the brunt of the war on drugs. But late Tuesday, right before the Senate was scheduled to vote on the bill, the equity provision was changed to include people with prior marijuana convictions.

At a press conference Wednesday, Jason Rojas, the House majority leader who helped craft the legislation, said it makes sense to him that people who have been hurt by the criminalization of cannabis are among those who are first in line for a license. “I think it’s appropriate to consider someone’s criminal history in terms of defining an equity applicant,” Rojas said. Ritter, however, echoed some of Lamont’s concerns. “Do I think that you should get a leg up because you got pinched [for] marijuana at 19 at Wesleyan? No, I don’t,” he told reporters before the House session began.

The marijuana legalization effort has stalled for at least five years at the Capitol. But this year, it appeared to have fresh momentum and Lamont’s strong support. Despite that, the bill only came up for debate in the Senate for the first time last week. The Senate approved the bill but because time ran out before the House could vote, the legislature convened in a special session this week to take up the bill.

Another notable accounting of marijuana tax revenues

In this prior post, I flagged of this recent report and accounting from folks at the Marijuana Policy Project titled "Marijuana Tax Revenue in States that Regulate Marijuana for Adult Use."  While that report focused on cumulative tax revenue in various states, this recent MJBiz Daily article, headlined "Marijuana legalization efforts get boost from billions in MJ tax dollars," drills into some more tax specifics while also discussing the MPP report.  I recommend the piece in full, and here are excerpts:

Adult-use marijuana programs are generating billions of dollars in tax revenues for state governments each year – bolstering the economic and equity case for legalization in other markets across the country as well as at the federal level. The economic argument might particularly resonate among reluctant Republican lawmakers on Capitol Hill, experts say....

MPP’s tax revenue report comes as the organization is involved in adult-use legalization advocacy efforts in Connecticut, Delaware and Rhode Island – and in the wake of successful recreational marijuana legalization across the country in the past few months from New York to New Mexico.  Maryland is on MPP’s radar for next year ... as are potentially several other states....

Social equity and racial justice issues have become critical pieces in adult-use legalization negotiations, and tax revenues are important because they help fund those programs.  In New York, state tax revenues will be directed toward community reinvestment grants (40%), public schools (20%) and drug-treatment and public-health programs (40%).

Other states also are using portions of the tax revenues for such areas as childcare services (California), conservation (Montana), environment (California), law enforcement (Oregon and Maine), mental-health services (Illinois), public transportation (Michigan) and reentry programs for those imprisoned with drug convictions (Alaska)....

The report doesn’t detail the hundreds of thousands of dollars of revenue generated for cities and towns from local cannabis taxes or the various economic development impacts such as job creation.  But other studies have.  The newly published MJBizFactbook, for example, estimates that the total U.S. economic impact from marijuana sales in 2021 is expected to reach $92 billion – up more than 30% from last year – and upwards of $160 billion in 2025.

"Achieving Social Equity in the Cannabis Industry"

The title of this post is the title of this new paper recently posted to SSRN and authored by Samuel DeWitt, 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 legal cannabis begins to infiltrate most American states and public support grows for federal legalization, the national discussion has shifted from if cannabis should be legalized to how it should be legalized.  A significant part of this debate has centered around the need to use cannabis legalization to address the lasting harm done to communities of color through federal prohibition.  A fair and just framework for the legal cannabis industry cannot be achieved without sufficient efforts to foster social equity within the industry and to right the wrongs done by decades of prohibition.  While most states with legal cannabis have recognized this issue and have taken some steps to address it, state action as a whole has been mostly ineffective and does not adequately reflect the scale of the problem.  This paper argues that broad federal action is needed to achieve true social equity in the cannabis industry, action that goes beyond recognizing the problems and works to change the stigma surrounding drug use and its historical relation to communities of color.

Array of marijuana reforms move forward in array of states

When I started this blog nearly eight years ago, it was often pretty big (and blogworthy) news whenever any single state would move forward with any kind of marijuana reform in the usual legislative process.  Back then, adult-use reform by traditional legislation was almost unthinkable and only a few state legislatures had enacted modest medical programs via standard legislation (as opposed to a ballot initiative).  But fast forward less than a decade, and here is a round-up of news accounts of notable legislative developments in just the first week of June 2021:

"Connecticut state Senate approves recreational marijuana bill in a 19-17 vote. House expected to take up bill before adjournment."

"Legalizing marijuana in Delaware: State lawmakers take another shot"

"Louisiana lawmakers pass bill to decriminalize marijuana"

"Mississippi Senate weighs in on medical cannabis legalization"

"Nevada Governor Signs Bill Legalizing Marijuana Consumption Lounges"

"N.C. bill to legalize medical marijuana picking up support"

"Medical marijuana law changes get through Pennsylvania House"

Of course, all this mid-year action comes on the heels of already historic legislative developments in the first part of 2021 with four states (New Mexico, New Jersey, New York and Virginia) legalizing adult-use of marijuana and one deep south state (Alabama) legalizing medical marijuana through the traditional legislative process.  

"Marijuana Tax Revenue in States that Regulate Marijuana for Adult Use"

The title of this post is the title of this notable new report and accounting from folks at the Marijuana Policy Project.  Here is how it gets started (with my highlight):

Legalizing marijuana for adults has been a wise investment.  Since 2014 when sales began in Colorado and Washington, legalization policies have provided states a new revenue stream to bolster budgets and fund important services and programs.  As of May 2021, states reported a combined total of $7.9 billion in tax revenue from legal, adult-use marijuana sales.  In addition to revenue generated for statewide budgets, cities and towns have also generated hundreds of thousands of dollars in new revenue from local adult-use cannabis taxes.

Eighteen states have enacted laws legalizing, taxing, and regulating cannabis for adults 21 and older.  Eight of the laws passed in 2020 or 2021, and in seven of those states, licensing and tax collections have not yet begun.  This document reviews each state’s adult-use cannabis tax structure, population, and revenue from legalization.  It does not include medical cannabis tax revenue, application and licensing fees paid by cannabis businesses, additional income taxes generated by workers in the cannabis industry, or corporate taxes paid to the federal government.

The report provides a helpful overview of all the basic tax structures in place for adult-use marijuana as of May 2021, as well as reports on total collections in these states to date. Notably, while Colorado is often thought about as the first legalization state and California is rightly seen as the biggest legalization state, this report details that Washington is as of now the richest state in tax revenues with over $2.5 billion collected.  (But California's tax revenue in 2020 was nearly twice that of Washington's according to this report, so by 2022 we should expect the Golden State to have collected the most tax gold from adult-use marijuana legalization.)

"Five Decades of Marijuana Decriminalization"

The title of the title for this great new resource page from the the Drug Enforcement and Policy Center (which I help direct).  The page provides data and discussion concerning decades of state and local marijuana decriminalization experiences.  The subtitle of the page highlights a key theme of this new resource page: "Exploring the limited and disparate impact of fragmented reforms."  I highly recommend folks check out all the data and original visuals on this page.  Here is some of the page's introductory text:

The topic of drug decriminalization has gained considerable attention in the United States after Oregon voted in November 2020 to decriminalize all drugs in that state.  While we consider the possible impacts of broader drug decriminalization efforts, it is useful to look back at the five decades of marijuana decriminalization for lessons on effects and implementation.

In 1972, the US National Commission on Marihuana and Drug Abuse, known as the Shafer Commission, issued a report advocating a “social control policy seeking to discourage marihuana use” but asserting that criminal law was “too harsh a tool to apply to personal possession even in efforts to discourage use.”  In 1973, Oregon became the first state to implement the recommendations of the Shafer Commission by decriminalizing marijuana statewide. Ten states followed suit in the next five years: Alaska, California, Colorado, Maine and Ohio in 1975; Minnesota in 1976; Mississippi, New York and North Carolina in 1977; and Nebraska in 1978. In 1977, President Jimmy Carter even urged Congress to consider marijuana decriminalization.  The decriminalization movement stalled throughout the 80’s and 90’s with President Reagan’s focus on the war on drugs, but the 2000’s brought a sustained attention to the issue with a wave of decriminalization efforts, medical-use and adult-use cannabis legalizations across 35 states, and a rapidly changing public opinion....

By our count, at the end of 2010, roughly only one-third of Americans lived in a jurisdiction with full or partial decriminalization laws.  By April 2021, over 75% of people in the United States lived in a jurisdiction that has passed some form of decriminalization or legalization....

These numbers can mask the fact that not all decriminalization initiatives are created equal and that some forms of decriminalization do not ensure significant reduction in criminal justice encounters for marijuana users.  Despite the growth in the number of states that have fully legalized cannabis for all forms of adult use (17 states, the District of Colombia and three U.S. territories), residents of 14 states (29% of the U.S. population) continue to be barred from using cannabis lawfully even for medical purposes and many others are subjected to a patchwork of decriminalization statutes, which can differ from a city to city if full decriminalization is not adopted on statewide basis.

"Nowhere to Now, Where? Reconciling Public Cannabis Use in a Public Health Legal Framework"

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

States continue to legalize recreational cannabis, but most have heavily restricted where consumption of newly licit cannabis is permitted.  Every legalizing state has thus far prohibited open, outdoor public use, either limiting lawful use to private property or allowing a small number of licensed indoor venues for consumption outside of public view, an approach borrowed from alcohol control.  In contrast, some non-U.S. jurisdictions have adopted a tobacco control approach, allowing limited outdoor public use while prohibiting indoor public use.  Each approach presents individual and population health risks that reflect the complex intersection of health, social inequities, and community norms.

Cannabis consumers face uncertain but potentially significant health risks from use, and the relative availability of use locations also implicates existing inequities in policing practices and housing.  Those who do not use cannabis but are exposed to others’ use face possible harms from secondhand smoke and from intoxicated behavior, with such risks likely to be inequitably distributed due to existing employment and housing patterns.  Communities as a whole also face risks, including that changing cannabis norms may increase use prevalence or intensity and that concentration of cannabis outlets in under-resourced communities may prove as detrimental as the concentration of other disfavored businesses has been.

Each public use approach carries attendant risks, but a regulatory framework based on the tobacco control model best balances the protection of public health and the promotion of equity and social justice.  This model recognizes the parallels between cannabis and tobacco (in addition to those between cannabis and alcohol).  This approach also provides a pathway to mitigating the public health risks of cannabis legalization by leveraging an approach that has proven effective at reducing secondhand exposures and denormalizing smoking behavior in the tobacco context.

With New Mexico now officially the latest legalizer of marijuana, which state might be next?

As reported in this new Hill piece, "New Mexico Gov. Michelle Lujan Grisham (D) on Monday signed legislation to legalize the use and sale of recreational marijuana in the state, as well as to expunge the records of people with prior, low-level cannabis convictions." Here is more:

"The legalization of adult-use cannabis paves the way for the creation of a new economic driver in our state with the promise of creating thousands of good paying jobs for years to come,” Lujan Grisham said in a statement.  “We are going to increase consumer safety by creating a bona fide industry.  We’re going to start righting past wrongs of this country’s failed war on drugs.  And we’re going to break new ground in an industry that may well transform New Mexico’s economic future for the better,” Lujan Grisham said.

The governor noted that the sentencing component of the law could impact up to tens of thousands of New Mexicans, and make possible the potential early release of low-level convicted cannabis offenders who are currently incarcerated.

The governor’s signature launches an administrative process that will culminate in the launch of commercial sales for adults no later than April 1, 2022. Issuing licenses to conduct commercial cannabis activity will begin no later than Jan. 1, 2022.

Under the legislation, recreational marijuana sales would initially be taxed at 12 percent, eventually rising to 18 percent.  Medical marijuana would be exempt.  Adults over the age of 21 will be allowed to purchase and possess up to two ounces of cannabis, 16 grams of cannabis concentrates and 800 milligrams of infused edibles.  Home growers will be allowed six plants per person, with a cap of 12 plants per household....

The governor said legalization will generate needed tax revenue to help the state recover from the coronavirus pandemic. "As we look to rebound from the economic downturn caused by the pandemic, entrepreneurs will benefit from this great opportunity to create lucrative new enterprises, the state and local governments will benefit from the added revenue and, importantly, workers will benefit from the chance to land new types of jobs and build careers,” Lujan Grisham said.

The legislation makes New Mexico the third state in recent weeks to pass legislation legalizing recreational marijuana.  New York Gov. Andrew Cuomo (D) signed a bill at the end of March, and Virginia Gov. Ralph Northam (D) last week convinced lawmakers to move up the effective date of legalization by three years.

As the end of this article notes, 2021 has already been a banner year for marijuana legalization.  I am inclined to include New Jersey in the list of 2021 legalizing states (though perhaps the state formally came aboard the legalization train in 2020 when voters approved a ballot initiative that the state legislature operationalized in 2021). 

With three+ states already legalizing marijuana through traditional legislation, 2021 will go down as a historic year even without any other states (or the federal government) acting in this arena.  But this new Marijuana Moment article, headlined "Four More States Could Still Legalize Marijuana This Year After New Mexico, New York And Virginia," reviews the prospects for additional state action in the coming months in Connecticut, Delaware, Minnesota and Rhode Island.

"American Edibles: How Cannabis Regulatory Policy Rehashes Prohibitionist Fears and What to do About It"

The title of this post is the title of this notable new paper now available via SSRN authored by Jay Wexler and Connor Burns.  Here is its abstract:

Why can’t we buy a cannabis muffin with our morning coffee?  For much of the past century, the answer was simple: cannabis was illegal.  Now, however, with more and more states legalizing cannabis for adult use, the answer is far less clear.  Even in those states that have legalized cannabis, the simple action of buying and eating edibles at the same location has somehow remained a pipe dream despite consumer demand.  Digging a little deeper, we can see how contemporary alarmism, by rehashing the same prohibitionist rhetoric demonizing cannabis for over eighty years, has once again arisen with a new target: cannabis-infused edibles.  From journalists to policymakers to legal scholars, the rekindling of prohibitionist arguments against edibles has had real world impacts on the regulation of cannabis edibles, to the harm of all involved.

This Article explores contemporary cannabis edibles regulation using historical, scientific, and legal frameworks to explain why current edibles regulation is so problematic, and what to do about it.  By delving into the history of cannabis prohibition, this Article shows how the very same arguments propping up prohibitionist edibles policies are rooted in bad-faith arguments made decades ago that themselves were merely thin veils for racism.  Applying this historical perspective and a rational understanding of contemporary cannabis edibles, this Article explores how states have used prohibition-inspired regulations to address two main concerns — overconsumption and inadvertent consumption — and how such regulations need to be revisited and revised.  This Article then argues that social consumption sits at the crux of edibles regulation, and that states must implement social consumption imminently to address the harms that current regulations do not address, or even worse, perpetuate.

New Mexico on the verge of marijuana legalization only hours after New York legalized

Though we sometimes have to wait until 4/20 for a lot of marijuana discussions, this week is proving historic as the New Mexico legislature last night passed two big marijuana reform bills just hours after New York's Governor officially signed that state's historic marijuana legalization bill (NY basics here).  This AP piece, headlined "New Mexico primed to join US recreational pot wave," reports on the basic details of the new laws just passed in the Land of Enchantment (yes, that is the official NM nickname):

New Mexico is joining a wave of states that are legalizing recreational marijuana as its Democrat-dominated Legislature sent a package of cannabis bills Wednesday to a supportive governor. Lawmakers used a marathon two-day legislative session to push through marijuana legalization for adults over 21 and a companion bill that automatically erases many past marijuana convictions, overriding skeptical Republicans.

By signing the bills, Gov. Michelle Lujan Grisham would extend legal recreational pot sales in the American Southwest by April 2022, when the New Mexico legislation kicks in, and join 16 states that have legalized marijuana, mostly through direct ballot initiatives. California and Colorado were among the first in the U.S. to legalize marijuana, with Arizona becoming one of the latest in the region to follow suit earlier this year. New York Gov. Andrew Cuomo signed a legalization bill Wednesday, and a proposal in Virginia is awaiting the governor’s signature.

The New Mexico initiative would reconsider criminal drug sentences for about 100 prisoners, and give the governor a strong hand in licensing the industry and monitoring supplies.

New Mexico flirted with cannabis legalization in the 1990s, when then-Gov. Gary Johnson challenged taboos against decriminalization in defiance of Republican allies. The state’s medical marijuana program founded in 2007 has attracted more than 100,000 patients. The Legislature was reticent to legalize until now. Several hardline opponents of legalization in the state Senate were voted out of office by Democrats in 2020 primary elections, in a shift that paved the way for Wednesday’s historic vote.

Under the advancing legalization package, New Mexico would levy an initial excise tax on recreational marijuana sales of 12% that eventually rises to 18%. That’s on top of current gross receipts on sales that range from roughly 5% to 9%. Possession of up to 2 ounces (57 grams) of marijuana would cease to be a crime, and people would be allowed six plants at home — or up to 12 per household. The reforms would eliminate taxes on the sales of medical marijuana and seek to ensure adequate medicinal supplies.

“The United States of America is in the midst of a sea change when it comes to this,” said Democratic state Rep. Javier Martinez of Albuquerque, lead sponsor of the legalization bill. “This bill begins to repair the harms of prohibition.”

State oversight would largely fall to the governor-appointed superintendent of the Regulation and Licensing Department that would issue licenses for a fee to marijuana-related businesses. The agency initially would have the authority to limit marijuana production levels by major producers — a lever over market supplies and pricing.... The legalization bill creates a cannabis control division to oversee 10 types of industry licenses. Those include micro-licenses with low annual fees for small producers to grow up to 200 marijuana plants and also package and sell their products.

Bill sponsor Martinez says that provides an important measure of equity, within a bill designed to support communities that suffered from criminalization of marijuana and tough policing. Past drug convictions don’t automatically disqualify applicants for marijuana business licenses. The odor of marijuana or suspicion of possession are no longer legal grounds to stop, detain or search people.

Legalization bill co-sponsor Rep. Deborah Armstrong says New Mexico will respond to early pitfalls of legalization in other states as it mandates child-proof packaging for marijuana products. Public health advocates condemned provisions that allow public consumption lounges for recreational cannabis, citing the dangers of second-hand smoke and vapor to workers and patrons.

Lawmakers discarded a Republican-sponsored bill from Sen. Cliff Pirtle of Roswell that emphasized low taxes in an effort to stamp out illicit weed and would have provided low-cost licenses to small pot farmers by linking fees to the number of plants in cultivation. Local governments cannot prohibit pot businesses but can regulate locations and hours of operation, under the proposal. Bill sponsors say that sheriffs and police want consistency from town-to-town on rules and enforcement.

Republican state Sen. Gay Kernan of Hobbs voted against legalization and said she was amazed that legislative colleagues would support the freedom to buy mind-altering drugs amid New Mexico’s struggles with poverty and opioid overdoses. “I just think it’s terribly unfair to impose this kind of significant change in our way of life and areas of the state that clearly do not welcome this,” Kernan said.

New York to be the very latest (and one of the very biggest) states to legalize recreational marijuana

As detailed in this Bloomberg article, headlined "New York Moves to Become Second Largest Pot Market In U.S.," a very big state is about to make marijuana use legal. Here are just some of the highlights:

New York moved toward creating the nation’s second-largest market for legal marijuana when the state Legislature passed Tuesday a bill that would impose special pot taxes and allow the licensing of dispensaries.

The measure (S.854A /A.1248A) would allow cannabis storefronts to open as soon as next year, and would let home growers start cultivating their own pot. It would limit the number of licenses for large corporations, and impose sales and excise taxes that are estimated to eventually bring in about $350 million a year.

The legislation would set in motion automatic expungement of records for people with previous convictions for activities that would no longer be criminalized when marijuana is legalized for use by adults 21 and older.

The Senate voted for the measure 40-23. The Assembly cleared the bill by a vote of 100-49. Both chambers’ votes were largely along party lines.... Governor Andrew Cuomo (D) has said he will sign the bill, which he negotiated with lawmakers in a handshake deal last week.

Once New York’s program is fully rolled out, it’s anticipated to generate tens of thousands of jobs and about $4.2 billion in sales, surpassing Washington state and trailing only California, which had about $4.4 billion in sales last year.

Several lawmakers in both houses, mainly Republicans, brought up concerns with people under the influence of marijuana driving or going to work and using heavy machinery. “This legislation will be a liability,” said state Sen. Mario R. Mattera (R). “Our contractors are against this, the building trades are against this.”

Mattera, who voted “no” on the bill, also expressed concern over the dangers of drug use, particularly for youth. He described experiencing this problem in his own family, and called marijuana a “gateway” drug. “This is a disaster waiting to happen,” he said.

The legislation includes two kinds of new taxes: a 13% sales tax, with the money raised divided between the state (9%) and localities (4%), plus a distributor excise tax of as much as 3 cents per milligram of THC, the active ingredient in cannabis, using a sliding scale based on the type of product and its potency.

Tax revenue would be used to run and oversee the state cannabis program, with the remaining money divided between programs that try to help people rebuild their lives after marijuana possession arrests, as well as their communities. The revenue would also go to education and drug treatment in the state. Cities, towns, and villages would have until the end of this year to opt out from having dispensaries and pot cafes in their communities.

Up to 3 ounces of cannabis and 24 grams of cannabis concentrate would be legally permitted for personal possession outside of the home. Up to 5 pounds of cannabis will be allowed in a private residence, as long as it’s in a secure location out of the reach of those under age 21, according to the bill.

The proposal allows for the personal cultivation of cannabis, with an adult 21 or older permitted to have up to three mature plants and three immature plants. Per household, the limit would be six of each kind of plant. Home cultivation would become legal in six months for medical marijuana patients and legal for others no later than 18 months after the first shops open, dependent upon state regulations....

The bill would allow pot delivery services, with each licensee able to have the equivalent of up to 25 full-time employees. And it would allow for on-site pot consumption, as long as the cannabis cafes aren’t within 500 feet of a school, or 200 feet from a house of worship.

New York lawmakers also baked social and economic equity proposals into the legislation. A single company wouldn’t be allowed to handle all parts of a recreational transaction — cultivation, processing, distributing, and dispensing — with the exception of micro businesses. A cultivator or processor would be barred from having a direct or indirect financial interest in a retail dispensary.

A state Cannabis Control Board and Office of Cannabis Management would be required to take small businesses into consideration and prioritize “social and economic equity” applicants from communities disproportionately impacted when marijuana was illegal. Priority for licenses also would go to those who make less than 80% of their county’s median income, and those convicted in the past of a marijuana-related offense.

The bill sets a goal of allocating half of the adult-use licenses to a minority- or woman-owned business, distressed farmers, service-disabled veterans, or “social and economic equity” applicants. The state would also create business incubator programs for social equity applicants, make low- and zero-interest loans available to them, and would be permitted to waive their licensing fees, according to the bill.

New Jersey becomes officially the (lucky?) 13th state to fully legalize marijuana for adult use

As reported in this local article, "New Jersey on Monday officially became the 13th state to legalize marijuana, as Gov. Phil Murphy signed into law three bills putting into effect a ballot question overwhelmingly supported by voters last year." Here is more about a big deal long in development that finally became a reality:

New Jersey the first state in the Northeast or Mid-Atlantic to eschew decades of arrests in favor of a program that would stop tens of thousands of arrests per year and kickstart a brand new cannabis industry that could be an economic boom for the state and region.  Currently, the only other states on the East Coast to legalize weed are Maine, Vermont and Massachusetts.

"New Jersey's broken, indefensible marijuana laws — which permanently stained the records of many residents and short-circuited their futures, disproportionately hurt communities of color and failed the meaning of justice at every level, social or otherwise — are no more," Murphy said in a press conference.  "In their place are laws that will usher in a new industry, based on equity, which will reinvest dollars into communities — laws which promote both public health by promoting safe cannabis products and public safety by allowing law enforcement to focus their resources on serious crimes.  And yes, we are fulfilling the will of the voters by allowing adult use cannabis, while having in place common sense measures to deter its use among kids," Murphy added.

The laws signed Monday allow the possession and use of marijuana by anyone over 21 years old within the state of New Jersey, who can have up to 6 ounces of weed on them without facing any penalty.  The laws also allow the purchase and sale of legal weed at state-licensed dispensaries, though it could be well over a year before recreational sales even began.

Some marijuana offenses will remain criminal, including drug distribution and growing cannabis plants without a license.  New Jersey is the only state with legal weed that doesn't allow at least its medical marijuana patients to grow, and joins Washington as the only states without some recreational home grow.  "We're going to go with the bills I just signed.  We'll leave it at that," Murphy said, deflecting a question about home grow.  "I appreciate the folks who have reached out on that front, but we're going to go with what we've got."...

The bill signings on Monday morning capped off three months of legislative debate over the rules and regulations for legal weed, most recently a weeks-long stalemate over penalties for marijuana users under the age of 21.  More than two-thirds of New Jersey voters backed a marijuana ballot question in November, but the constitutional amendment put forth by the referendum could not take effect until such rules and regulations were in place.

In New Jersey, the campaign to legalize marijuana was largely pursued as a social justice-driven mission.  The “vote yes” campaign, NJ CAN 2020, was led by officials from the American Civil Liberties Union of New Jersey, who ran digital advertisements — live events were dismissed due to the raging COVID-19 pandemic — educating voters on the negative effects of a simple low-level marijuana possession arrest and the millions in tax dollars spent on prosecuting such cases....

According to crime data from the FBI, New Jersey police departments made over 33,000 arrests for marijuana in 2017, the 9th highest marijuana arrest rate per capita in the country, according to the ACLU.  And in New Jersey, Black people were 3.5 times more likely to be arrested for marijuana possession than white people, despite similar usage rates among races, the ACLU said.

“The failed War on Drugs has systematically targeted people of color and the poor, disproportionately impacting Black and brown communities and hurting families in New Jersey and across our nation," U.S. Sen. Cory Booker, D-New Jersey, said in a statement. "Today is a historic day."

Even Murphy, in his 2017 gubernatorial campaign, ran on a platform that included legalizing marijuana under a banner of social justice.  But advocates feared that such a mission had been lost in the shuffle since Election Day, as Murphy and legislative leaders negotiated the enabling legislation required to put the ballot question into action.

The ballot question’s constitutional amendment, for example, simply stated that the drug would be taxed at the state sales tax rate, currently 6.625%, to provide revenue for the state budget and defray the costs of police departments training officers to detect drugged drivers.

But advocates said that such a plan completely left out the largely Black communities where marijuana laws had been disproportionately enforced for decades.  The result was a unique two-tax structure that would send about 60% of tax revenue and 100% of revenue from a new “social justice user fee” to one of 20 “impact zones,” as decided by the Cannabis Regulatory Commission, the authority which will oversee not just legal weed for recreational use but the state’s growing medical marijuana program....

On Monday, lawmakers finally ended a six-week stalemate over how the state will penalize underage marijuana users, sending Murphy a “clean-up” bill designed to complement the pair already passed by the Legislature in December.  Those bills left open a major contradiction, with one stating that possessing marijuana under 21 years old was illegal while the other stated that no person — without age restriction — could face penalty for possession of up to 6 ounces of marijuana.

The resulting compromise, which passed the Legislature on Monday morning, put into place a three-tiered warning system for both underage marijuana and alcohol use. Both will be treated as virtually the same crime, with the most serious penalty capped at a simple referral to community service groups to teach the offender about substance abuse.  All civil penalties and fines, even from underage drinking citations, were removed.

"The Effect of State Marijuana Legalizations: 2021 Update"

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

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

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

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

Virginia poised to become 16th state to fully legalize marijuana for adult use

As reported in this local article, headlined "Marijuana will be legal in Virginia after historic vote, with dispensaries opening in 2024," the Old Dominion state is on track be become the newest marijuana reform state.  Here are the details:

Virginia, which for decades has sent thousands of people to jail for selling or using marijuana, is about to make it legal. In a historic shift for this traditionally conservative Southern state, the General Assembly voted Friday to allow its possession, manufacture and sale.

But while lawmakers in the House of Delegates and Senate agree on legalizing the substance, the chambers will have to work out differences in their proposed bills before a final version reaches Gov. Ralph Northam, who has signaled he will sign their legislation into law. Beginning in 2024, cannabis can be sold in regulated stores, with tax revenue going to pre-K and public health programs, addiction treatment and a fund to remedy the effects of the drug’s criminalization.

“There are more deaths from legal pharmaceuticals … sold at your local CVS and Walgreens that cause way more deaths than anything that marijuana — cannabis — will do,” said Del. Don Scott, D-Portsmouth, stressing that the prosecution of marijuana use disproportionately harms Black and brown Virginians. “If you want to help marginalized communities, here is an opportunity. This is an opportunity to invest in those communities that have been decimated by the so-called war on drugs and to give us an economic leg up.”

A 2018 Daily Press investigation found Black Virginians were far more likely to be charged with marijuana possession and go to jail if convicted, even on a first offense. Half of those charged with first-offense possession were African American despite the state’s population being only about 20% Black, and despite surveys consistently showing white and Black people use marijuana at similar rates.

Under the Senate bill, passed Friday afternoon, simple possession would be legal starting in July, but retail sales would not start until 2024. The House of Delegates passed a similar bill earlier in the day.... Friday’s votes fell largely down party lines....

The state had already decriminalized marijuana last year. Being caught with up to an ounce of marijuana will land you a $25 civil fine, akin to a parking ticket. Before that, it could have resulted in a criminal conviction, a $500 fine and 30 days in jail for a first offense — and up to a year in jail for a second or subsequent offense. “It was a good first step, but more is needed,” Sen. Louise Lucas, D-Portsmouth, said about last year’s change before Friday’s votes to legalize. “The (Senate) bill is the next step.”

From 2010 to 2018, there were almost 200,000 marijuana possession arrests in Virginia, and nearly 39,000 of those were in Hampton Roads, according to Old Dominion University’s 2019 State of the Region report.

About 68% of Virginia’s registered voters support legalizing marijuana, according to poll results released Tuesday by the Wason Center for Civic Leadership at Christopher Newport University.

"Ensuring Marijuana Reform Is Effective Criminal Justice Reform"

The title of this article is the title of this new article that I wrote along with Alex Kreit that is now available via SSRN.  Here is its abstract:

In less than a decade, marijuana legalization has gone from unthinkable to seemingly unstoppable.  This essay — written for a special issue on improving Arizona’s criminal justice system — discusses how Arizona should best advance marijuana legalization so that it can significantly improve Arizona’s criminal justice system.  Now that Arizona has legalized marijuana via ballot initiative, we do not wade too deeply into the arguments for and against legalization or the criminal justice impact inherent in the repeal of prohibition (such as reductions in marijuana arrests and sentences).  Instead, we focus on steps that Arizona policymakers and advocates who are interested in improving the criminal justice system can take to ensure that legalization best advances this goal.  First, we set the stage in Part I with a brief history of marijuana prohibition, its role in criminal enforcement today, and the movement to enact state legalization laws.  In Part II, we turn our attention to Arizona, beginning with a description of marijuana reform efforts in Arizona and key facets of the Smart and Safe Arizona Act.  We then provide recommendations for policymakers and other concerned parties about how to ensure modern marijuana reforms in Arizona (and elsewhere) can and should help build a reform infrastructure that could not only ensure record relief to redress past marijuana convictions but also address broader criminal justice issues that historically intersect with marijuana prohibition.

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

The folks at Marijuana Moment have lots of great timely coverage of how various aspects of our new political landscape are leading to new discussions of marijuana reform possibilities.  In an effort to catch up on a lot of fronts quickly, I will here post headlines and links (and my thanks for MM's effective and timely journalism):

At the federal level:

• "What The New Democratic-Controlled Senate Means For Federal Marijuana Legalization In 2021"

• "Biden AG Pick Merrick Garland Wants To Defer To DEA On Marijuana Science And Classification"

• "Biden’s Commerce Secretary Pick Wants Marijuana Sold In Government-Run Stores"

At the state level:

• "Connecticut Governor Renews Pledge To Pursue Marijuana Legalization In 2021 State Of The State Speech"

• "Dozens Of Iowa Democratic Officials Push For Marijuana Legalization In 2021"

• "New York Governor Unveils Updated Marijuana Legalization Plan For 2021"

• "Top Rhode Island Senator Backs Private Marijuana Sales Model As Another Lawmaker Puts 95 Percent Odds On Legalization"

• "Virginia Lawmaker Introduces Bill To Legalize Marijuana In 2021"

Update on the state of marijuana expungements in the Prairie State

The Chicago Tribune has this new extended article details the status of expungement efforts in Illinois, and its full headline captures its themes: "Pot legalization was to bring expungements to many with records in Illinois. Numbers so far are low, but more are expected to be on the way."  Here are excerpts:

Marijuana legalization in Illinois came with grand plans for wiping clean many criminal records involving cannabis.  That aspect of the law was so important that on the eve of legalization on Jan. 1, 2020, Gov. J.B. Pritzker pardoned more than 11,000 people of low-level marijuana convictions.

Yet more than 700,000 cases could qualify for expungement, a process in which police and court records of arrests and convictions are cleared.  The process is crucial to giving people with such records a better chance at getting a job, an education and a place to live.

Now, almost one year after legalization took effect, few of those cannabis cases have been cleared. But officials say more expungements are on the way.  Under the legalization legislation, Illinois State Police were tasked with identifying by Jan. 1, 2021, those cases that occurred since 2013 that could be expunged automatically.  That amounts to some 47,000 cases, Toi Hutchinson, Gov. J.B. Pritzker’s senior adviser on cannabis, said.  With the deadline just days away, state police said they would make an announcement about those expungements soon.

In Cook County, State’s Attorney Kim Foxx worked with a nonprofit tech company called Code for America to identify and clear 2,200 cases early this year.  But during the COVID shutdown of courts, that process was delayed for months. Now, prosecutors there plan to expunge another 11,000 cases early in 2021.

McHenry County State’s Attorney Patrick Kenneally also went to court to get about 1,900 cases expunged early in 2020. But in general, other counties have not taken such initiative.  Some are still waiting for state police to identify which cases are eligible. Lake County, for instance, the state’s attorney’s office knew of only two requests to vacate and expunge records, both of which were granted.

As a result, many people are still paying the price for having small amounts of marijuana that customers now buy routinely at pot shops.  On the production side, licensed cannabis companies are churning out tons of the plant, amounts that previously could have earned life sentences in prison.

Now, after months of delays in the process, in part because of the pandemic, advocates are trying to reboot parts of the state’s plan to clear convictions.  While only misdemeanor and the lowest level felony cases are eligible for automatic expungement, there remain an estimated 71,000 cases involving larger amounts of cannabis that don’t qualify for automatic expungement but are eligible to be cleared in court, advocates say.  Yet very few individuals have come forward seeking to clear their records, advocates say.  They blame lack of familiarity with the process by the public, courts and court clerks.

In response, a program called New Leaf is seeking to get people with pot convictions to come forward and get their slates wiped clean.  New Leaf brings together 20 nonprofit organizations to help people get through the sometimes difficult process, which can take months or years.  The program is being led by Illinois Legal Aid Online, which has step-by-step instructions for people to take part.  The effort is being funded by taxpayers through the nonprofit Illinois Equal Justice Foundation.

Notable NORML accounting of marijuana reform highlights in 2020

I just came across this recent posting titled "2020 NORML Victories," which serves as a kind of year-in-review  of marijuana reform highlights in 2020.  Folks should click through to see the particulars as discussed by NORML, but here are heading flagging big developments in this post:

Historic: House Of Representatives Passes Legislation Repealing Federal Marijuana Prohibition

Cannabis Retailers Are Acknowledged To Be “Essential Businesses”

2020 Election Was A Clean Sweep For Legalization Ballot Measures

Virginia Decriminalizes Marijuana Possession, Calls For Legalization

Tens Of Thousands Have Their Criminal Marijuana Records Expunged

Vermont Legalizes Retail Marijuana Access

I now see that NORML has this additional new accounting of the marijuana reform year that was under the headline "2020 Year in Review: NORML’s Top Ten Events in Marijuana Policy." Here are the listed events:

#1: Advocates Run the Table on Election Day

#2: House of Representatives Votes to Repeal Federal Marijuana Prohibition

#3: Tens of Thousands Have Their Marijuana Records Expunged

#4: Sales of Retail Cannabis Products Reach Historic Highs

#5: No Uptick in Youth Marijuana Use Following Legalization

#6: Vermont Lawmakers Legalize Retail Marijuana Access

#7: More Seniors Report Using Cannabis to Improve Their Quality of Life

8: Cannabis Retailers Designated as “Essential Businesses”

#9: Studies Show Off-The-Job Cannabis Use No Threat to Workplace Safety

#10: Virginia Ceases Arrests for Marijuana Possession