Friday, January 8, 2021
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:
At the state level:
January 8, 2021 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Thursday, December 31, 2020
The title of this post is the headline of this new Marijuana Moment piece, which I thought must include a typo because how could there be "half a million" arrests or convictions to eliminate. But then I remembered how many people bear scars from marijuana prohibition, and sp here is the story:
The governor of Illinois on Thursday announced more than 500,000 expungements and pardons for people with low-level marijuana offenses on their records. The massive clemency and records clearing sweep comes about one year after the state’s legal cannabis market launched. Prior to its implementation, Gov. J.B. Pritzker (D) granted an earlier round of more than 11,000 pardons for marijuana-related convictions.
The new effort saw slightly fewer gubernatorial pardons (9,219), but an additional 492,129 expungements for people convicted over non-felony cannabis offenses. The Illinois State Police helped facilitate the record clearing process.
Illinois’s marijuana legalization law includes restorative justice components that require the state to proactively expunge certain cannabis convictions — but this development puts Illinois four years ahead of schedule. “Statewide, Illinoisans hold hundreds of thousands low-level cannabis-related records, a burden disproportionately shouldered by communities of color,” Pritzker said in a press release. “We will never be able to fully remedy the depth of that damage. But we can govern with the courage to admit the mistakes of our past — and the decency to set a better path forward.”
“I applaud the Prisoner Review Board, the Illinois State Police, and our partners across the state for their extraordinary efforts that allowed these pardons and expungements to become a reality,” Pritzker, who alluded to the additional pardons in October, added.
Toi Hutchinson, a senior cannabis advisor to the governor, said she is “heartened by the progress we have made towards undoing the harms dealt by the failed war on drugs.”
“We are one year into what will be an ongoing effort to correct historic wrongdoings,” she said. “The administration remains committed to working with legislators to address any challenges to equity and on building an industry that re-invests in our state’s communities.” According to the press release, “the expungement process has been completed at the state level,” but “county clerks are still processing expungements at the local level.”
The Marijuana Moment article concludes by noting some other states that have been working to ensure marijuana reform serves as a form of criminal justice reform:
New Jersey Gov. Phil Murphy (D) is being pressed by civil rights groups to systematically issue pardons for people with marijuana convictions to supplement the state’s voter-approved move to legalize cannabis.
Colorado Gov. Jared Polis (D) used a recently enacted law to grant nearly 3,000 pardons for people convicted of possession one ounce of less of marijuana.
In June, more than 15,000 people who were convicted for low-level marijuana possession in Nevada were automatically pardoned under a resolution from the governor and Board of Pardons Commissioners.
Washington State Gov. Jay Inslee (D) has also issued pardons for cannabis offenses.
Sunday, December 27, 2020
The title of this post is the headline of this great new lengthy Politico article, which is summarized by its subheadline: "By making local officials the gatekeepers for million-dollar businesses, states created a breeding ground for bribery and favoritism." I recommend the piece in full, and here is a small taste:
In the past decade, 15 states have legalized a regulated marijuana market for adults over 21, and another 17 have legalized medical marijuana. But in their rush to limit the numbers of licensed vendors and give local municipalities control of where to locate dispensaries, they created something else: A market for local corruption.
Almost all the states that legalized pot either require the approval of local officials – as in Massachusetts – or impose a statewide limit on the number of licenses, chosen by a politically appointed oversight board, or both. These practices effectively put million-dollar decisions in the hands of relatively small-time political figures – the mayors and councilors of small towns and cities, along with the friends and supporters of politicians who appoint them to boards. And these strictures have given rise to the exact type of corruption that got [Fall River Mayor Jasiel] Correia in trouble with federal prosecutors. They have also created a culture in which would-be cannabis entrepreneurs feel obliged to make large campaign contributions or hire politically connected lobbyists.
For some entrepreneurs, the payments can seem worth the ticket to cannabis riches. For some politicians, the lure of a bribe or favor can be irresistible.
Correia’s indictment alleges that he extorted hundreds of thousands of dollars from marijuana companies in exchange for granting them the local approval letters that are necessary prerequisites for obtaining Massachusetts licenses. Correia and his co-conspirators — staffers and friends — accepted a variety of bribes including cash, more than a dozen pounds of marijuana and a “Batman” Rolex watch worth up to $12,000, the indictment charges.
December 27, 2020 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Thursday, December 10, 2020
As reported in this Politico piece, the "House on Wednesday passed a bill that would make it easier for scientists to conduct marijuana research in states where the drug is legal. The bill passed on a voice vote with strong bipartisan support." Here is more:
What’s the context? Lawmakers from both sides of the aisle agree that more research into the health effects of marijuana is needed. The bill is co-sponsored by two lawmakers who stand at opposite ends of the spectrum on marijuana legalization: Rep. Earl Blumenauer (D-Ore.) is the unofficial cannabis czar on Capitol Hill, while Rep. Andy Harris (R-Md.) is known for his work on an appropriations rider that restricts Washington D.C. from taxing and regulating a marijuana market.
Marijuana research legislation also has strong support in the Senate, where lawmakers from both parties, including Sens. Chuck Grassley (R-Iowa), Dianne Feinstein (D-Calif.), Ron Wyden (D-Ore.) and Dan Sullivan (R-Alaska), have proposed marijuana research legislation. This bill, however, does not have a Senate equivalent.
What does this bill do? Marijuana research now is limited to being based on a few variations grown by the University of Mississippi, the only entity that can legally grow marijuana under federal law for research. Scientists have complained for years that what is grown for research doesn’t resemble the marijuana used in the real world.
The DEA has never licensed other research cultivators. In 2016, the agency said it would authorize other growers to help facilitate research. It has received 37 applications, and said in August 2019 that it would move forward with processing those applications. But no other growers have been greenlighted, and the lack of action on those applications has prompted lawsuits from two applicants....
The bill would amend the Controlled Substances Act to remove limitations on researching marijuana and create a new research structure for the drug. The bill directs HHS and DOJ to create a program that would license additional producers and manufacturers of research marijuana. Researchers with federal licenses could use that marijuana for FDA-approved research. The legislation also would speed up the wait times for research marijuana cultivation applications and reduce some of the cumbersome regulations that researchers face when trying to get approval to study marijuana....
What’s next? The Senate is unlikely to bring the bill up for a vote in the final days of this Congress, but its passage sets a marker for the next session.
Because this was passed through a voice vote, we do not get any accounting of how many House members actually supported or opposed this legislation. And it will be quite interesting to see if this modest marijuana reform bill becomes a priority in the next COngress or if instead reform advocates push only for more ambitious reforms.
Saturday, December 5, 2020
The title of this post is the title of this new paper authored by Paul Larkin now available via SSRN. Here is its abstract:
Federal law treats cannabis as contraband, but more than 30 states allow it to be sold for medical or recreational use. The industry has a unique, quasi-legal status that poses legal, political, and commercial challenges for member businesses. States with legalized cannabis use allow parties to own the means of production and sale, but supervise the industry by using traditional regulatory tools such as licensing, product quality testing, and taxation.
Yet, those supply-side regulations are not likely to control the harms that cannabis overuse can generate. Like alcohol and tobacco, marijuana is a consumer good that can harm individual users and third parties. Supply-side restrictions are also necessary to limit the number of people who overly consume marijuana. States should assume responsibility for the sale of that product, just as many already do in the case of alcohol. States should also decline to advertise their own sales of cannabis. Finally, Congress should require states to assume those responsibilities as a condition of revising the federal Controlled Substances Act to lift the federal ban on cannabis sales.
Friday, December 4, 2020
As reported in this CNN article, headlined "House passes bill decriminalizing marijuana at federal level," a big vote on federal marijuana reform was conducted today. But the vote reveals the still politically divisive nature of this issue, which will surely impact future reform efforts. Here are details:
The House of Representatives has approved legislation that would decriminalize marijuana and seek to "address the devastating injustices caused by the War on Drugs." Friday's vote in the Democratic-led House is the first time a chamber of Congress has voted on federal marijuana decriminalization. It has little chance of passing the Republican-led Senate, however.
The bill passed largely along party lines: 222 Democrats, five Republicans and Rep. Justin Amash, a libertarian, voted in support while 158 Republicans and six Democrats voted against.
The Republicans who voted for the bill are Florida Rep. Matt Gaetz, the bill's co-sponsor, as well as Reps. Brian Mast of Florida, Tom McClintock of California, Denver Riggleman of Virginia and Don Young of Alaska. The Democrats against were Reps. Cheri Bustos and Dan Lipinski of Illinois, Henry Cuellar of Texas, Conor Lamb of Pennsylvania, Chris Pappas of New Hampshire and Collin Peterson of Minnesota....
The MORE Act would remove marijuana from the Controlled Substances Act and eliminate criminal penalties for individuals who manufacture, distribute or possess marijuana. It also includes creating a process to remove prior convictions, known as expungement, and conduct sentencing review hearings for federal cannabis offenses.
The measure would also authorize a 5% sales tax on marijuana products to invest in services such as job training, legal aid and substance abuse treatment for individuals adversely impacted by the war on drugs. The tax revenue would also provide funds for small businesses loans and allow access to marijuana licensing and employment for economically disadvantaged individuals.
Republican Senate Majority Leader Mitch McConnell this week criticized the House for moving on the bill instead of passing parts of the Covid-19 stimulus bill that both parties agree on. "The House of Representatives is spending this week on pressing issues like marijuana. You know, serious and important legislation befitting this national crisis," McConnell said sarcastically on the Senate floor.
Critics of the bill cite the lack of potential traction in the Senate. "It's an unserious bill that was voted on in an unserious manner and we rest easily knowing there is zero interest in moving this bill in the Senate and zero interest in supporting it in either the current administration or the incoming one," Kevin Sabet, president and co-founder of Smart Approaches to Marijuana, which opposes marijuana legalization, said in a statement....
President-elect Joe Biden supports decriminalizing marijuana and the automatic expungement of prior criminal records for marijuana possession, but not full legalization of the substance, a Biden campaign spokesman said last year. "He would allow states to continue to make their own choices regarding legalization and would seek to make it easier to conduct research on marijuana's positive and negative health impacts by rescheduling it as a schedule 2 drug," Andrew Bates, who is now a spokesperson for the Biden transition, told CNN.
Rounding up a few headlines just before historic vote on MORE Act to end federal marijuana prohibition
I have already highlighted in a prior post, asking "How many House Republicans are going to vote in support of the MORE Act?," what grabs my attention as the US House of Representatives conducts an historic vote on federal marijuana reform today. But as the vote approaches, I thought it might be worthwhile to flag some media coverage that has caught my eye in recent days:
From Courthhouse News Service, "House Prepares for Historic Vote on Marijuana Decriminalization"
From Investor's Business Daily, "Marijuana Stocks Rise Ahead Of Historic Vote To End Prohibition"
From Marijuana Moment, "Conservative Groups Call For Marijuana Legalization Ahead Of House Vote"
From Rolling Stone, "Inside the Weed Legalization Bill Congress Is Voting on This Week"
Wednesday, December 2, 2020
I am not at all an expert on international law, by I still think I know enough to regard actions today by the United Nations Commission on Narcotic Drugs regarding cannabis is a pretty big deal. This official press release provides the special details, and this NPR story provides a bit more context. Here are excerpts:
The U.N. Commission on Narcotic Drugs voted to reclassify cannabis Wednesday, taking it off the strict Schedule IV list that includes dangerous and highly addictive drugs such as heroin. The U.N. still deems cannabis a controlled substance. But the move, which the U.S. supported, could ease restrictions on research into marijuana's therapeutic use.
The 53-member commission approved the change in a close vote, by 27-25, with 1 abstention. Russia was a vocal opponent of the move, calling cannabis "the most abused drug globally."
The U.N. vote follows guidance from the World Health Organization and its expert committee on drug dependence, which had recommended deleting "cannabis and cannabis resin" from Schedule IV of the 1961 Convention on Narcotic Drugs. The drug will now remain in Schedule I rather than appearing on both lists. The vote had been closely followed by marijuana activists and the burgeoning cannabis industry, as it could bolster arguments for easing legal restrictions on marijuana and establishing consistent regulations.
In its recommendation to the U.N. Commission on Narcotic Drugs, the WHO committee noted that cannabis can have adverse effects and cause dependence. But it also cited the drug's benefits in reducing pain and nausea, as well as easing symptoms of medical conditions such as anorexia, epilepsy and multiple sclerosis. And it noted that unlike opioids such as fentanyl, cannabis is not associated with a significant risk of death. The committee said, "the inclusion of cannabis and cannabis resin in Schedule IV is not consistent with the criteria for a drug to be placed in Schedule IV."
The WHO committee also said that despite "limited robust scientific evidence on the therapeutic use of cannabis," the drug has been shown to be different from Schedule IV substances that have little or no therapeutic use.
"This is a major win for cannabis advocates around the world with considerable symbolic and some practical implications for cannabis regulation," according to Conor O'Brien of Prohibition Partners, a global industry analyst group. Taking cannabis off of the list of most restricted substances, he added, means that the U.N. agrees with the WHO "that cannabis is not 'liable to produce ill-effects' on the scale of other drugs in Schedule IV, and that cannabis has significant potential therapeutic value."
It's up to each country to form their own drug policies and punishments. But international drug control treaties allow their parties to ban or limit the manufacture or import of the most dangerous substances. Under the 1961 convention, Schedule IV is reserved for drugs that are particularly liable to abuse and harm. "Such liability is not offset by substantial therapeutic advantages," the U.S. Justice Department says in its guide to complying with the treaties. With cannabis now classified differently, the calculus for studying its potential benefits is now likely to change.
The U.S. was represented at the session by Ethan Glick, counselor for U.N. Affairs at the U.S. Mission to International Organizations in Vienna, who said, "the legitimate medical use of a cannabis preparation has been established through scientific research, and cannabis no longer meets the criterion for placement in Schedule IV of the Single Convention." Glick cited the U.S. Food and Drug Administration's approval in 2018 of a purified cannabidiol extract for use in treating rare seizure disorders in children. And he cautioned that cannabis poses public health risks, particularly to young people and pregnant women.
But reclassifying cannabis in a less strict control category, Glick added, could spark new research into its medical benefits. "This action has the potential to stimulate global research into the therapeutic potential and public health effects of cannabis and to attract additional investigators to the field including those who may have been deterred by the Schedule IV status," Glick said.
Tuesday, December 1, 2020
A few months ago there was lots of excitement about the announced plans for the US House of Representatives to vote on H.R. 3884, the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (MORE Act). But House leadership put off the vote until after the 2020 election, and now excitement is growing again as a vote is being discussed again. This new Marijuana Moment piece, headlined "House Leaders Propose Changes To Federal Marijuana Legalization Bill Up For Floor Vote This Week," provides an effective accounting of where matters stand. Here is how it starts:
A key House committee has scheduled a Wednesday hearing to advance a bill to federally legalize marijuana toward a full floor vote, which could then happen as soon as Thursday. Meanwhile, leaders in the chamber are proposing an amendment that would make several changes to the cannabis legislation. Among the most significant revisions would be to the tax-related provisions of the bill.
The Rules Committee’s move to take up the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act follows Majority Leader Steny Hoyer (D-MD) announcement that the chamber would be holding a floor vote on the bill before the end of the year.
Judiciary Committee Chairman Jerrold Nadler (D-NY), the lead sponsor of the bill, transmitted it to Rules with the series of modifications—many of them technical in nature. But beyond the tax changes, the newly proposed language also reaffirms the regulatory authority of certain federal agencies such as the Food and Drug Administration (FDA) and clarifies that cannabis can still be included in drug testing programs for federal workers. Other members of the House are likely to file proposed amendments as well, though the Democratic majority of the Rules panel will determine which ones can be made in order for floor votes later this week.
Because there is zero chance that the MORE Act will move forward in the Senate during this Congress, this House vote may seem mostly symbolic. (Indeed, this new Politico piece, headlined "Why the next Congress is unlikely to legalize marijuana," highlights why marijuana reform is likely to remain an uphill battle in the Senate even in 2021 and beyond.) But Jacob Sullum has this new Reason piece, headlined "Will a Historic House Vote on Marijuana Legalization Nudge Biden Toward More Ambitious Reforms?," which rightly suggests the vote could have an impact on Joe Biden and the work of the incoming Biden Administration. As Sullum puts it, any "historic House vote to repeal [the federal marijuana] ban would allow him to go further than he has so far without sacrificing his cherished reputation as a moderate."
I share Sullum's view that the House lame-duck vote on the MORE Act could prove to be consequential, though my take is that the answer to the question in the title of this post could and likely will prove to be the most important part of the story (perhaps along with how many Democrats vote against the MORE Act). If the MORE Act passes with only D support, the discourse over federal marijuana reforms is likely to remain quite partisan for the months and years to come. But if more than a handful of GOP Representatives vote for the MORE Act, it will become that much easier for reform advocates to portray future federal efforts as bipartisan.
Notably, Florida GOP Rep, Matt Gaetz was one of the original 29 co-sponsors of the MORE Act. The Act now has 120 co-sponsors, but Rep. Gaetz is still the only GOP Rep among that number. My understanding is that there may be a few more GOP Reps who would ultimately vote for the MORE Act. But without more than just token GOP support, I doubt even a passing vote on the MORE Act will be as consequential as many reformers might hope.
December 1, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Sunday, November 29, 2020
In a handful of prior posts (linked below), I have flagged Oklahoma as a red state to watch closely as a vanguard of modern medical marijuana reforms. And so now I am pleased, but not surprised, to see this lengthy Politico magazine profile of deveopments in the Sooner state. The piece's full headline highlights its themes: "How One of the Reddest States Became the Nation’s Hottest Weed Market; Oklahoma entered the world of legal cannabis late, but its hands-off approach launched a boom and a new nickname: ‘Toke-lahoma.’" I recommend a full read, and here are excerpts:
Oklahoma is now the biggest medical marijuana market in the country on a per capita basis. More than 360,000 Oklahomans — nearly 10 percent of the state’s population — have acquired medical marijuana cards over the last two years. By comparison, New Mexico has the country’s second most popular program, with about 5 percent of state residents obtaining medical cards. Last month, sales since 2018 surpassed $1 billion.
To meet that demand, Oklahoma has more than 9,000 licensed marijuana businesses, including nearly 2,000 dispensaries and almost 6,000 grow operations. In comparison, Colorado — the country’s oldest recreational marijuana market, with a population almost 50 percent larger than Oklahoma — has barely half as many licensed dispensaries and less than 20 percent as many grow operations. In Ardmore, a town of 25,000 in the oil patch near the Texas border, there are 36 licensed dispensaries — roughly one for every 700 residents. In neighboring Wilson (pop. 1,695), state officials have issued 32 cultivation licenses, meaning about one out of 50 residents can legally grow weed.
What is happening in Oklahoma is almost unprecedented among the 35 states that have legalized marijuana in some form since California voters backed medical marijuana in 1996. Not only has the growth of its market outstripped other more established state programs but it is happening in a state that has long stood out for its opposition to drug use. Oklahoma imprisons more people on a per-capita basis than just about any other state in the country, many of them non-violent drug offenders sentenced to lengthy terms behind bars. But that state-sanctioned punitive streak has been overwhelmed by two other strands of American culture — a live-and-let-live attitude about drug use and an equally powerful preference for laissez-faire capitalism....
Oklahoma has established arguably the only free-market marijuana industry in the country. Unlike almost every other state, there are no limits on how many business licenses can be issued and cities can’t ban marijuana businesses from operating within their borders. In addition, the cost of entry is far lower than in most states: a license costs just $2,500. In other words, anyone with a credit card and a dream can take a crack at becoming a marijuana millionaire....
The hands-off model extends to patients, as well. There’s no set of qualifying conditions in order to obtain a medical card. If a patient can persuade a doctor that he needs to smoke weed in order to soothe a stubbed toe, that’s just as legitimate as a dying cancer patient seeking to mitigate pain. The cards are so easy to obtain — $60 and a five-minute consultation — that many consider Oklahoma to have a de facto recreational use program.
But lax as it might seem, Oklahoma’s program has generated a hefty amount of tax revenue while avoiding some of the pitfalls of more intensely regulated programs. Through the first 10 months of this year, the industry generated more than $105 million in state and local taxes. That’s more than the $73 million expected to be produced by the state lottery this fiscal year, though still a pittance in comparison to the overall state budget of nearly $8 billion. In addition, Oklahoma has largely escaped the biggest problems that have plagued many other state markets: Illegal sales are relatively rare and the low cost to entry has made corruption all but unnecessary.
Prior related posts:
- Oklahoma voters resoundingly pass medical marijuana initiative
- Highlighting how extraordinary the approval of medical marijuana was in Oklahoma
- Medical marijuana proving very popular in Oklahoma
- Two very different tales of state medical marijuana reform in Oklahoma and West Virginia
Thursday, November 26, 2020
This new Marijuana Moment piece, headlined "Republican Lawmakers And Celebrities Push Trump To Free Marijuana Prisoners Before Leaving Office," prompts the question in the title of this post as it reports on a notable effort to get Prez Trump to use his clemency pen on behalf of a notable group of federal prisoners. Here are the details:
A group of celebrities, Republican officials and civil rights advocates sent a letter to President Trump on Wednesday, urging him to pardon or commute the sentences of people in federal prison for nonviolent federal marijuana offenses. The letter, which organizers said they adapted from an earlier request after discussing the previous proposal with the office of Trump senior adviser and son-in-law Jared Kushner, states that the signatories “strongly believe that justice necessitates the exercise of executive clemency in these cases.”
Unlike the last version, the new letter comes with an attachment — at the request of Kushner’s office, advocates said — of a specific list of 24 people who are currently behind bars for cannabis offenses, including several who are serving life sentences.
Weldon Angelos, who himself was convicted over cannabis and handed a mandatory minimum sentence before a court cut his sentence and released him, personally delivered the first version of the letter to the White House in March. He told Marijuana Moment that Kushner’s office then reached out to his organization, Mission Green, to request that, in addition to redelivering the request, advocates include a list of incarcerated people who they feel are especially entitled to presidentially granted relief.
Those two dozen currently incarcerated individuals include people like Luke Scarmazzo, who was sentenced to 22 years in federal prison for operating a state-legal medical cannabis business in California. These inmates shouldn’t have to wait for Congress to get around to enacting federal policy change, and the president should use executive action to pardon them, the letter states.
“You have expressed support for the States’ right to implement their own cannabis laws, especially for medicinal purposes,” the signatories, including former NBA star Kevin Garnett, wrote. “And while there are a number of proposals being introduced in Congress to finally put an end to cannabis prohibition, they tend to lack any real avenue of relief for those who are serving time for selling cannabis.”...
Among the more than 50 signatories of the new letter is Alice Johnson, who appeared at the Republican National Convention and whose story was featured in Trump campaign ads after her drug sentence was commuted by the president.
Republican state lawmakers from Kansas, Maine and Missouri also signed on, as did a former U.S. attorney, actor Danny Trejo, the New Haven, Missouri police chief and former New Mexico governor and presidential candidate Gary Johnson. They were joined by representatives of groups like #cut50, Marijuana Policy Project and Law Enforcement Action Partnership....
It’s not clear how Trump will react to the request for a round of cannabis-specific clemency. His reelection campaign worked to frame him as the criminal justice reform candidate, but he hasn’t proactively championed marijuana reform, has made several anti-legalization administration hires and issued signing statements stipulating that he reserves the right to ignore long-standing congressional riders that prohibit the Justice Department from using its funds to interfere with state-legal medical cannabis programs. Also, despite his pledged support for medical marijuana and states’ rights, the president evidently holds some negative views toward cannabis consumption, as evidenced in a 2018 recording in which he said that using it makes people “lose IQ points.”
Prior related post:
Wednesday, November 18, 2020
The title of this post is the title of this segment to which I contributed at the Legal Talk Network. I was quite gratified when folks from the Network reached out to me after my post-election post here titled "After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?." It was an abosulte joy to speak at length with Laurence Colletti, producer at Legal Talk Network, about my (crazy?) ideas concerning possible constitutional challenges to federal marijuana prohibition. Here is how the segment is set up:
Is it unconstitutional for the federal government to ban marijuana? In 2005, it wasn’t according to the U.S. Supreme Court in Gonzales v. Raich. But with more states legalizing marijuana in the 2020 election, does that same analysis apply?
Professor Douglas Berman from The Ohio State University Moritz College of Law breaks it down.
Especially because I fear that legislative action to reform federal marijuana laws may still be a long time off, I continue to believe would-be reformers ought not forget litigation as a means to advance overdue reforms.
A few prior related posts:
- ‘After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?’
- Marijuana and other drug reforms have a big night across the nation
- Is opposing maijuana reform more important to conservatives than restricting federal power?
Wednesday, November 11, 2020
In this post four years ago, right after then Prez-elect Donald Trump had named then-Senator Jeff Sessions to be his first Attorney General, I highlighted various political and practical reasons why I did not expect AG Sessions or the broader Trump Administration to dramatically thwart the state-driven momentum toward marijuana reform. I think that post has aged pretty well, as marijuana reform proved in the 2020 election cycle to be quite popular in blue, purple and red states. Results in in Arizona, which voted on full legalization initiatives in both 2016 and 2020, is perhaps especially informative: marijuana legalization was voted down 51% to 49% in 2016, and then was approved 60% to 40% in 2020.
Notably, as Attorney General, Jeff Sessions perhaps hoped to slow the state marijuana reform momentum by rescinding in early 2018 the Justice Department's "hands off" enforcement memos of the Obama era (basics here and here). But that move, by triggering backlash of various sorts and not really amounting to much, may have actually helped the state-level reform cause. And, of course, AG Sessions was fired before the end of the year, and the 2018 election cycle brought important initiative reforms in the midwest and western states of Michigan, Missouri, Oklahoma and Utah. Whenever the definitive history of modern US marijuana reform gets written, it will be valuable to note that Prez Trump, by essentially ignoring the issue for his entire time in office, allowed bipartisan momentum for reform to continue growing at the state level.
I am ruminating about these realities in reaction to seeing this piece from Gallup earlier this week headlined "Support for Legal Marijuana Inches Up to New High of 68%." Here are excerpts:
Americans are more likely now than at any point in the past five decades to support the legalization of marijuana in the U.S. The 68% of U.S. adults who currently back the measure is not statistically different from last year's 66%; however, it is nominally Gallup's highest reading, exceeding the 64% to 66% range seen from 2017 to 2019....
The latest data are from a Sept. 30-Oct. 15 poll, conducted before the election that saw marijuana legalization proposals on the ballot in several states. Voters in all of these states -- Arizona, Montana, New Jersey, and South Dakota -- authorized the legal use of recreational marijuana in the Nov. 3 election. They join 11 other states and the District of Columbia in legalizing pot for recreational purposes. Additionally, voters in Mississippi and South Dakota join 33 states and the District of Columbia in passing laws legalizing or decriminalizing the use of marijuana for medicinal purposes....
Majorities of most demographic subgroups of Americans support legalizing marijuana, including by gender, age, education and household income. Yet there is considerable variation in the extent of support within each group, as men, younger adults, college graduates and those in households with incomes of at least $100,000 are more likely than their counterparts to favor legalization....
Most politically left-leaning and middle-of-the-road Americans remain supportive of legalizing marijuana, while less than half of those who lean right favor it. Over eight in 10 Democrats and liberals, and more than seven in 10 independents and moderates, back legalization, but just under half of Republicans and conservatives do.
Views of legalization also differ greatly depending on frequency of attendance at religious services. A slim majority of those who say they attend weekly oppose legalization. Yet, about three in five of those who attend nearly weekly or monthly, and about four in five who attend less frequently, favor legalizing marijuana.
The 83% of Democrats and 72% of independents who prefer legalization are the highest readings in the trend for both groups, but Republicans' current 48% is down slightly from slim majorities in 2017, 2018 and 2019.
One could seek to draw lots of political lessons, past and future, from these data. For now I am content to just capture this polling snapshot while also recalling that social and political views on marijuana have been quite variable over time throughout US history. Anyone who thinks certain trends are inevitable, either short- or long-term, has not learned some of the key lessons from our history.
November 11, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Political perspective on reforms, Polling data and results, Who decides | Permalink | Comments (1)
"Potus and Pot: Why the President May Not (and Should Not) Legalize Marijuana Through Executive Action"
The title of this post is the title of this essay authored by Robert Mikos. The essay was written and posted to SSRN months before the November election, but it is arguably even more timely today. Here is the piece's abstract:
Could the President legalize marijuana, without waiting for Congress to act? The 2020 Presidential Election has shown that this question is far from hypothetical. Seeking to capitalize on frustration with the slow pace of federal legislative reform, several erstwhile presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead. This Essay warns that such promises are both misguided and dangerous, because they ignore statutory and constitutional constraints on the President’s authority to effect legal change. It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that means having to wait for Congress to pass new legislation. To be clear, this Essay is not a defense of our current federal marijuana policy. That policy is a mess, regardless of one’s views towards legalization. But proponents of reform need to recognize that Congress made this mess, and only Congress is capable of cleaning it up.
November 11, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)
Sunday, November 8, 2020
In what states (and how quickly) might we now see marijuana reform through the traditional legislative process?
I mentioned briefly in this post a few days ago that the big wins at the polls for marijuana reform in red and blue states nationwide will surely have all sorts of future reform echoes. As the question in the title of this post flags, I am especially intrigued to watch, in the short term, developments in various states in which we might reasonably expect the traditional legislative process to now take up reform.
The most obvious answer to the question in the post title flows from the big win for full legalization reform in New Jersey. That result, for reasons discussed a bit in this prior post, certainly should increase the likelihood of traditional legislative reforms neighboring New York and Pennsylvania and maybe even a few other mid-Atlantic and Northeast states. I have also seen mentioned that New Mexico might be a lot more likely to move forward with reforms now that legalization prevailed in Arizona.
But, of course, New Jersey ended up having a ballot initiative this election cycle because its legislature could not agree on a framework for legalization through the traditional legislative process. New Jersey demonstrated in 2019 that even when a legislature has "the will" for marijuana reform, it might not always readily find "the way." So even if legislatures in New York and other states now seriously commit themselves to full legalization, turning that kind of commitment into completed legislation can still prove challenging.
One final element to consider here are states that seem likely to have state legalization ballot initiatives in the works for 2022. In states like Florida, Ohio, Oklahoma and a few others, I wonder if legislatures might have the wisdom and foresight to consider moving forward with reform through the (somewhat controllable) legislative process rather than just allowing reform to be defined by the (advocate controlled) ballot initiative process. Interesting times.
November 8, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Because there has historically been a general lack of diversity in all sorts of government positions, I would guess that state administrators and regulators have not typically been an especially diverse bunch. But, when Cat Packer in 2017 was appointed the first Executive Director of the Los Angeles Department of Cannabis Regulation, I started noticing the efforts in some quarters to try to ensure state and local marijuana regulators reflected more of the diversity of our great nation. (Just some of a number of other notable regulators in this space include Toi Hutchinson in Illinois, Shaleen Title in Massachusetts, Marisa Rodriguez in San Francisco.)
These stories came to mind as I saw this story out of New Jersey from The Root, headlined "America Has Yet to Achieve Racial Equity in Cannabis Reform. New Jersey Is Hoping Dianna Houenou Can Change That." I recommend the piece in full, and here are excerpts:
[A] third of Americans (more than 111 million total) now live in states where adults can legally purchase pot. But although reform is sweeping the nation, with dispensaries popping up everywhere from Oakland and Denver to Baltimore and Chicago, America’s “green rush” has yet to substantially uplift the communities most harmed by the country’s devastating “war on drugs.” Instead, white business-owners and large corporations have disproportionately benefited from cannabis reform, prompting fresh concerns about what the future of marijuana legalization holds for the Black and Latinx communities who suffered the most from America’s punitive drug policies.
New Jersey hopes to change that narrative. On Friday morning, Gov. Phil Murphy appointed Dianna Houenou, a senior advisor with an extensive background in criminal justice reform, to lead the state’s Cannabis Regulatory Commission, which will be charged with shaping the state’s cannabis laws and ensuring that the communities devastated by the New Jersey’s drug policies reap the benefits of the burgeoning industry.
“Dianna has been a critical voice for social justice and equity on my team for the past year and a half after spending several years working on the fight to legalize marijuana with the ACLU,” Gov. Murphy told The Root in a statement. “Her commitment to doing what is right and to leaving no one behind has powered our criminal justice reform agenda, and I am immensely proud that she will be continuing that commitment as Chair of the Cannabis Regulatory Commission.”
“Since day one, we have said that the legalization of recreational marijuana must prioritize the communities marginalized and decimated by the failed War on Drugs,” Murphy added. “I know that Dianna is the perfect person to lead our state’s effort to create a marketplace for recreational marijuana that is equitable, fair, and inclusive of all communities.”...
New Jersey is the most populous of all the states that legalized recreational marijuana this week, and the first state in the mid-Atlantic to do so — leading Pennsylvania and New York, where lawmakers have long discussed legalization but have disagreed on how to do so. In New York, a major part of that disagreement has stemmed from questions around equity and accessibility. Nationwide, Black and Latinx Americans aren’t leading cannabis operations in significant numbers, nor have they been leading regulation or law-making efforts....
Working to make cannabis reform equitable will be no small task for Houenou and the commission, particularly in a state like New Jersey, where, despite similar rates of marijuana usage, Black people are 3.45 times more likely to be arrested for cannabis possession than white people. As recently as 2016, the Garden State spent $669.3 million to enforce restrictive drug policies, “despite the grave racial inequities in fuels,” writes Insider New Jersey.
Because the country has yet to really get equity in the cannabis industry right, Houenou will be leading New Jersey into uncharted territory. But if successful, the state could very well be a model for the region and the country at large.
Houenou isn’t going it alone. She has the full support of Gov. Murphy, who made marijuana legalization a signature part of his 2017 election campaign. She also understands that making cannabis reform truly equitable will be a holistic process requiring education, advocacy and buy-in from a variety of stakeholders, from law enforcement to those who lost years of their lives to drug prohibition policies. For her and the commission, equity won’t be an afterthought, as it has been in other places. “We really are looking to make sure that equity is built into a regulated structure at the onset,” she said.
Houenou stresses that under her leadership, nothing would be off the table for the commission. This includes policies already existing in other places, including prioritizing permits for those who live in neighborhoods impacted by harsh drug policies, as well as individuals who have been entangled in the court system specifically for cannabis offenses. But she’s also interested in exploring — and breaking down — other barriers to entry and ensuring that revenue from these burgeoning businesses goes back into Black communities.
November 8, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Saturday, November 7, 2020
What a difference a decade makes: recalling marijuana reform efforts in 2010 California and now in 2020 South Dakota
Talking to one of my favorite people about the greatness and unpredictability of democracy in the USA, I realized that it is worthwhile to put the amazingly consistent pro-reform marijuana election results of 2020 in a bit of historical context. For now, I will leave it to true historians to write on a broader canvas, as I just want to highlight what a difference a decade makes.
The first very significant and well-funded campaign for statewide marijuana legalization took place in deep blue California in 2010. Then and there, California Proposition 19 lost pretty badly with 53.5% of California voters being against legalization, and only 46.5% being in favor. Notably, among the folks in avowed opposition to this reform were US Senators Barbara Boxer and Dianne Feinstein, then-Democratic gubernatorial candidate Jerry Brown, then CA Gov Arnold Schwarzenegger, then-Democratic Attorney General Candidate Kamala Harris, and then-Prez Obama's Attorney General Eric Holder and his drug czar Gil Kerlikowske
Fast forward only 10 years, and we have seen extraordinary political, legal and social developments on so many fronts related to marijuana prohibition, and perhaps this is no more clear than the results in deep red South Dakota in 2020. This year the voters in South Dakota considered both Initiated Measure 26 to legalize medical marijuana, which passed by a vote of 70% for and only 30% against, and a state constitutional amendment for full legalization, which passed by a vote of 54% for and only 46% against. To my knowledge, there were precious few political figures who spoke out in avowed opposition to either of these reforms, and I am certain that Prez Trump's Attorney General did not weigh in on these state marijuana reform ballot measures.
This is a truly remarkable political and legal story, though perhaps even more remarkable is that we have seen no formal federal legislative reforms in this arena even over a decade of extraordinary change. I will (not-so-boldly) predict that we will see some form of federal statutory reforms over the next decade, but I am not at all confident about just when or what these reforms might look like. I will predict that 2010 CA Democratic Attorney General Candidate Kamala Harris, who is now in 2020 Vice President Elect Kamala Harris, might end up having a lot of impact on this matter.
November 7, 2020 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, November 4, 2020
After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?
Eighteen years ago, Angel Raich and her co-plaintiffs filed this complaint that argued that federal marijuana prohibition was unconstitutional on multiple theories. She claimed not only that federal marijuana prohibition exceeded Congress's authority under the Commerce Clause, but also that it violated the Fifth, Ninth and Tenth Amendments. A few years later, the Supreme Court took up and rejected only the Commerce Clause claim 6-3 in Gonzales v. Raich, 545 U.S. 1 (2005). In light of the remarkable and continuing nationwide citizen support for ending marijuana prohibition, I think it is time to consider a renewed constitutional attack on federal prohibition, a Raich 2.0, that renews these claims and adds one under the Eighth Amendment.
Notably, the Court's composition has changed dramatically since its ruling in Raich, with only Justice Breyer remaining from the Court's majority and only Justice Thomas remaining from the Raich dissent. Among the new Justices, there is a reasonable basis to speculate that at least two Justices (Justices Gorsuch and Barrett) and perhaps as many as four Justices (add in Chief Justice Roberts and Justice Kavanuagh) might be inclined to join Justice Thomas to reconsider the Commerce Clause ruling in Raich.
These same groups of Justices might likewise be inclined, perhaps, to breathe some life into the Ninth and Tenth Amendments in this context. One might further speculate that Justices Breyer, Kagan and Sotomayor might be open to considering a Fifth Amendment claim in this content. And, given established precedent that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 110 (1958), and that "the modern practices of the States ... are indicative of our 'evolving standards of decency'," Ford v. Wainwright, 477 U.S. 399, 419 (1986), I believe the dramatic modern state medical and recreational marijuana reform could make at least some enforcement of federal marijuana prohibition problematic under the Eighth Amendment.
I am not here seeking to assert that a federal constitutional challenge to federal marijuana prohibition will be sure to prevail on any of these fronts. But a whole lot has changed quite dramatically since the ruling in Gonzales v. Raich, 545 U.S. 1 (2005), including a bunch of red state reforms via voters this election cycle. All these changes lead me to continue to wonder if and when we might soon see an effective effort to renew constitutional challenges to federal marijuana prohibitions.
Some (too early) speculations on the (uncertain) future of marijuana reform after big state wins Election Night 2020
As of Wednesday morning after a very long 2020 Election Night, there is a lot which remains uncertain politically, but one matter is quite clear: marijuana reform is very popular all across the United States. As noting in this post last night, marijuana reform ballot initiatives prevails by pretty large numbers in states as diverse as Arizona, Mississippi, Montana, New Jersey and South Dakota. This Politico article, headlined "1 in 3 Americans now lives in a state where recreational marijuana is legal," provides some political context:
New Jersey and Arizona, with 8.9 million and 7.3 million residents, respectively, are the biggest wins for advocates this year. Legalization in New Jersey is expected to create a domino effect for legalization in other large East Coast states, including Pennsylvania and New York.
South Dakota, Montana and Mississippi, while much smaller, are significant in another way: As red states, the passage of marijuana measures illustrates the shift in Republican sentiment toward marijuana.
The impact of these ballot measures will be felt in Congress, especially if Democrats regain control of the Senate. If all the measures ultimately pass, a third of House members will represent states where marijuana is legal, as will a fourth of the Senate. If Democrats end up in control of both chambers next year, expect those legal state lawmakers to be called upon to vote on significant changes to federal marijuana policy — including removing all federal penalties for using it.
As of this writing, it is still unclear who will be in the White House for the next four years, but it seems increasing clear that Democrats will not be in control of the Senate. This reality leads me to speculate that, despite the big 2020 state ballot wins, it will still be quite challenging for Congress to move forward with any significant federal statutory marijuana reforms. Whether to pursue a modest or major form of federal reform already divides Democratic lawmakers in various ways, and I doubt that Republican leadership in the Senate will be eager to prioritize or even advance various bills on this topic. If the person in the White House decides he wants to focus on this issue, these political realities could surely change. But, at this moment, it seems to me unlikely that a large number of lawmakers at the federal level will be keen to prioritize these matters in the short term.
But continued non-action at the federal level could actually make even more space for state-level reforms to continue apace. As the Politico excerpt highlights, the outcome in New Jersey should increase the likelihood of traditional legislative reforms in states like New York and Pennsylvania and maybe other northeast states. Also, the big ballot wins in red states in 2020 also makes even more likely that there will be ballot initiatives for full legalization or medical marijuana reform in a half-dozen or more states in the coming years. Just off the top of my head, I count Arkansas, Florida, Idaho, Missouri, Nebraska, North Dakota, Ohio and Oklahoma as all real possibilities for state initiatives perhaps as early as 2022.
November 4, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, November 3, 2020
Though it may be a bit too early to declare all the ballot initiatives winners, as of this writing just before the end of Election Day 2020, it seems as though every marijuana reform initiative and all the other drug reform initiatives on ballots today are going to pass. Specifically, as now reported on this Marijuana Moment tracking page, here is what I am seeing:
Full marijuana legalization:
Arizona: 60% in favor
Montana: 60% in favor
New Jersey: 67% in favor
South Dakota: 53% in favor
Medical marijuana legalization:
Mississippi: 69% in favor
South Dakota: 69% in favor
Oregon: 55% in favor
Washington DC: 77% in favor
Oregon: 59 % in favor
November 3, 2020 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)