Marijuana Law, Policy & Reform

Making the case to Prez Biden with candidates for cannabis clemency

I am pleased to see that my former student, Stephen Post, who is now part of the Last Prisoner Project, a nonprofit organization fcused on cannabis criminal justice reform, has this new USA Today opinion piece headlined "Biden promised no jail time for weed. He's running out of time to pardon cannabis convicts."   I recommend the piece in full, and here are excerpts (with links from the original):  

For most of U.S. history, presidents since George Washington have been unwavering in the use of their clemency power. They understood their actions not only as a way to remedy overly harsh sentences but also to help restore public faith in the justice system.

President Joe Biden now has a chance to use his clemency powers to secure – and, in some ways, correct ‒ his legacy on criminal justice reform.  The Biden administration has made it clear that cannabis reform, especially as a racial justice issue, is a priority and one that will energize the electorate. Nevertheless, the president has only granted 1.4% of submitted clemency petitions.

Despite positive use of his clemency powers like providing record relief to almost 13,000 people with his expanded categorical pardons for cannabis possession, President Biden has failed to release a single person in prison for cannabis via commutation....  Marylanders like Jonathan Wall, who has been incarcerated since 2020 on federal cannabis charges, can only get that type of clemency relief from the president.  

While there may be political concerns perceived to limit President Biden’s ability to grant commutations before Election Day, even then-President Donald Trump granted a few just weeks before the 2020 presidential election. In his four White House years, he granted commutations to 16 people for 27 cannabis offenses, some of whom were released from prison....

If President Biden is looking for the next batch of candidates for clemency, he has already been sent a list of deserving individuals, almost half of whom identify as Black, and whose petitions are sitting with the Office of the Pardon Attorney.

Many of these candidates have sat in prison cells for decades, or even for life, convicted of an activity that is no longer a crime, while thousands of others build business and create wealth doing the same thing.

Former Prez Trump articulates forceful support for state marijuana legalization, federal rescheduling and banking reforms

In this post nine days ago,  I noted new comments from former Prez Donald Trump that were seemingly supportive of Florida's marijuana legalization ballot initiative; in this post last week, I noted further comment from Trump suggesting his position of federal rescheduling would likewise be supportive.   Now, via this social media posting from late last night, Trump make quite clear that he is all-in on both state and federal marijuana reforms.  Here are key excerpts:

As a Floridian, I will be voting YES on Amendment 3 this November.  As President, we will continue to focus on research to unlock the medical uses of marijuana to a Schedule 3 drug, and work with Congress to pass common sense laws, including safe banking for state authorized companies, and supporting states rights to pass marijuana laws, like in Florida, that work so well for their citizens.

With these comments, Trump is no longer hedging in any way his seeming robust support for a wide array of state and federal marijuana reforms. Given Trump's various prior comments recently on these topics that did hedge a bit, I am inclined to guess that Trump was looking to see what kind of reactions his pro-marijuana reform statements engendered. The reactions, at least from Trump's view, must have been positive. I also suspect that some of Trump's latest high-profile political endorsers, specifically from Robert F. Kennedy Jr and from Tulsi Gabbart, may have been urging Trump to become more vocal in his support for reform.

Interesting times.

Recent related posts:

• Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere
• Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?

Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?

I flagged here the notable social media comments from former Prez Donald Trump over the weekend which suggested he is supportive of marijuana legalization in Florida and elsewhere. But I just recently saw some notable follow-up comments about medical marijuana that Trump made during an interview on Lex Fridman’s podcast released earlier this week. This Marijuana Moment piece reports on the comments this way:

Former President Donald Trump says medical marijuana has been “absolutely amazing” for patients, and that a Florida initiative to more broadly legalize cannabis for recreational use will be on the November ballot is “going to be very good” for the state after it passes, which he expects to happen.

The 2024 Republican nominee said during an interview on Lex Fridman’s podcast that was released on Tuesday that “medical marijuana has been amazing,” adding that he’s “had friends and I’ve had others and doctors telling me that it’s been absolutely amazing, the medical marijuana.”

Trump referenced a recent social media post he made about Florida’s Amendment 3 ballot initiative, where he gave tacit support for the proposal. “We can live with the marijuana,” he said.

“It’s got to be a certain age [to purchase],” he said. “It’s got to be done in a very concerted, lawful way. And the way they’re doing it in Florida, I think is going to be actually good. It’s going to be very good, but it’s got to be done in a good way. It’s got to be done in a clean way.” He added that his campaign will be putting out an additional, “more specific” statement detailing his cannabis position within the next week.

I will be eager to see what kind of more specific statement concerning cannabis policy comes from the Trump campaign, and I sincerely hope it will address federal law and on-going efforts to reschedule marijuana under the Controlled Substances Act.  But if Trump is of the view that  medical marijuana is "absolutely amazing," I would think Trump's position of federal rescheduling would be absolutely positive.  After all, marijuana's current status as a Schedule I drug means that is has no accepted medical use, and it seems Trump has heard from friends and others and doctors that marijuana has been amazing as a medicine.   And only be moving marijuana to Schedule III are we likely to have medical marijuana access by patients and robust medical marijuana research "done in a very concerted, lawful way."

"Convergence and Divergence of Alcohol and Marijuana Regulation in a Federalist System Post-COVID-19"

The title of thi spost is the title of this new paper now available via SSRN authored by H. Justin Pace and Eden Punch. Here is its abstract:

After the passage of the Twenty-first Amendment, the regulation of alcohol in the U.S. largely takes place at the state level.  While marijuana has been illegal at the federal level since 1937, states have been liberalizing marijuana laws at the state level since 1996 (when California legalized medical marijuana) by legalizing marijuana for medical or adult use.  Alcohol regulation, which was effectively reset in all states when alcohol was legalized at the federal level, is marked by divergence — significant variation in alcohol laws across states.  Conversely, marijuana regulation, which has slowly spread across the U.S. state-by-state over the last 28 years, is marked by convergence — new marijuana reforms increasingly resemble other reforms.

One of us has previously published scholarship arguing that the difference can be explained by a combination of interest group politics, path dependence, and, most importantly, a temporal effect.  Alcohol and marijuana regulation in the U.S. experienced an exogenous shock with the COVID-19 pandemic, which resulted in significant changes to alcohol and marijuana regulation across the nation.  This paper examines convergence and divergence in alcohol and marijuana regulation from 2020 to the present day, revisiting and reaffirming that previous theory and also applying a federalism lens to explain alcohol and marijuana regulation and predict future developments.

Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere

As reported in this New York Times article, "Donald J. Trump on Saturday signaled his support for a ballot measure that would legalize recreational marijuana in Florida, stopping short of a full endorsement but saying that he did not believe marijuana should be criminalized in his adopted home state when it is legal in others."  Here is more (with links from the original):

In a post on his social media platform, Truth Social, Mr. Trump portrayed the passage of the ballot measure, known as Amendment 3, as inevitable and raised concerns about its implementation. Public opinion polls show that a majority of Florida voters favor the measure.

“Whether people like it or not, this will happen through the approval of the Voters, so it should be done correctly,” Mr. Trump said. “We need the State Legislature to responsibly create laws that prohibit the use of it in public spaces, so we do not smell marijuana everywhere we go, like we do in many of the Democrat run Cities.”

Mr. Trump, who votes near his Mar-a-Lago estate in Palm Beach, had previously avoided taking a position on the question. His position pits him against Gov. Ron DeSantis and most of the state’s Republican leaders, who are working to defeat the proposal.

Mr. Trump’s statement appeared to walk a line meant to keep him from fully upsetting those opposed to the measure. He did not say how he personally would vote on Amendment 3, and he did not explicitly back the legalization of marijuana even as he again suggested he supported decriminalizing it.

Florida has been trending Republican, but polls show that Amendment 3 is more popular in the state than even Mr. Trump is — indicating that many voters intend to split their ticket and vote both for the former president and for marijuana legalization.  Polling suggests that most Americans now say marijuana should be legal for medical or recreational use.

DEA schedules hearing on federal marijuana rescheduling for December 2, 2024

As reported here via Marijuana Moment, the "Drug Enforcement Administration (DEA) has scheduled a hearing to consider differing expert opinions on the Justice Department’s proposal to federally reschedule marijuana — an extra procedural step that will take place after the November election."  Here is more:

After moving to reclassify cannabis as a Schedule III drug under the Controlled Substances Act (CSA) back in March, DOJ opened a 60-day public comment period that saw more than 4o,000 submissions.  Now that DEA has reviewed the comments, it agreed to an administrative hearing, as requested by several supporters and opponents of the reform.  The hearing will be held on December 2, according to a notice set to be published in the Federal Register on Thursday.

While some advocates and stakeholders had hoped that DEA would avoid this additional step and simply move to final rulemaking, the agency has often scheduled hearings for regulatory proposals of major public interest. And rescheduling cannabis for the first time since it was designated as Schedule I over 50 years ago evidently met that standard.

That said, the hearing adds some uncertainty about the potential rescheduling timeline.  There are some concerns this means the rulemaking process will not be completed before January, which could mean an administrative changeup after the November election that theoretically could affect the rescheduling process.

While some advocates and stakeholders had hoped that DEA would avoid this additional step and simply move to final rulemaking, the agency has often scheduled hearings for regulatory proposals of major public interest. And rescheduling cannabis for the first time since it was designated as Schedule I over 50 years ago evidently met that standard.

That said, the hearing adds some uncertainty about the potential rescheduling timeline.  There are some concerns this means the rulemaking process will not be completed before January, which could mean an administrative changeup after the November election that theoretically could affect the rescheduling process.

New Gallup polling shows "Americans' Views of Marijuana Effects Worsen"

The polling firm Gallup here released the interesting results of its "Consumption Habits" poll. Here are excerpts from Gallup's discussion of its findings:

Americans’ views of the effects of marijuana have worsened over the past two years, as slim majorities now say it negatively impacts both society as a whole (54%) and most people who use it (51%). This contrasts with Gallup’s findings from 2022, when the public was about evenly divided in its assessments of marijuana’s effect on society and more likely to say the effect on most users was positive (53%) rather than negative (45%).

The latest data, from Gallup’s July 1-21 Consumption Habits poll, show that majorities of Americans in several demographic groups believe marijuana has a positive effect on most who use it. These include those who say they have tried marijuana, young adults 18-34 years old, Democrats, and those who attend religious services less than monthly or never.

By contrast, majorities of their counterparts -- those who say they have never tried marijuana, adults 55 and older, Republicans and those who attend religious services at least monthly -- think marijuana has a negative effect on most who use it. Independents and adults 35 to 54 years old are divided in their views.

All of the groups have become less likely since 2022 to say marijuana has a positive effect on users. Meanwhile, less than half of Americans in each of these groups now think that marijuana positively impacts society.

A separate question in the July survey measures U.S. adults’ opinions of the harmfulness of cigarettes, chewing tobacco, e-cigarettes, cigars, a pipe, nicotine patches, alcohol and marijuana to those who use them.

Although majorities of Americans believe each of the eight substances is “very” or “somewhat” harmful to its users, the two-thirds who say marijuana is very (26%) or somewhat (40%) harmful is the lowest. In contrast, more than nine in 10 U.S. adults consider cigarettes, chewing tobacco, and e-cigarettes or vaping to be harmful, including majorities calling each very harmful.

The public’s perceptions of the harmfulness of marijuana have worsened slightly since last year, when 23% viewed it as very and 35% somewhat harmful.

The 13% of U.S. adults who currently report that they smoke marijuana is down slightly from the 16% to 17% range recorded in 2022 and 2023. Meanwhile, compared with 2022, a steady 12% of U.S. adults say they consume edibles, about matching the 11% of Americans who say they smoke cigarettes, which ties the low in Gallup’s 80-year trend. Seven percent of U.S. adults vape or use e-cigarettes. Alcohol use is more widespread, with 58% of U.S. adults saying they have occasion to drink.

DEPC event on Aug 7: "Federal Marijuana Reform: Effects and Echoes of Rescheduling"

I am pleased to be able to spotlight another great Drug Enforcement and Policy Center (DEPC) event focused on federal marijuana reforms.  This online event,  titled "Federal Marijuana Reform: Effects and Echoes of Rescheduling," will take place on August 7, 2024 from 12 noon to 1:15 pm EDT.  The event is described this way on this event registration page (where one can directly register):

After decades-long efforts by advocates and researchers, President Biden announced in October 2022 that he instructed “the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”  In May 2024, the Attorney General submitted a notice of proposed rulemaking to the Federal Register, initiating a formal rulemaking process to consider the reclassification of marijuana from a schedule I to a schedule III drug under the Controlled Substances Act (CSA).

While the rulemaking process timeline has some uncertainties, many expect a final rescheduling rule could appear as soon as September or October 2024.  But what would such a move mean for modern marijuana laws, policies and practices?  Could medical marijuana products be prescribed by doctors and sold in pharmacies nationwide?  Would changes in federal laws dramatically impact current medical and recreational industries operating under disparate state systems?  And would placement in schedule III make a meaningful difference in the operation of criminal justices systems, especially for people with marijuana-related criminal convictions at the federal or state level?

Panelists:

John Hudak, Director of the Maine Office of Cannabis Policy
Robert Mikos, LaRoche Family Chair in Law, Vanderbilt University Law School 
Fatima Afia, Attorney, Rudick Law Group, PLLC
Shane Pennington, Partner, Porter Wright Morris & Arthur LLP 

Moderator:
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence at The Ohio State University Drug Enforcement and Policy Center and Director of Drug Markets and Legal Regulation at Drug Policy Alliance

Split Oklahoma Court of Criminal Appeals affirms dismissal of criminal charge of child neglect brought against woman who used medical marijuana when pregnant

As reported in this local press piece, "women with state medical cards who use marijuana during pregnancy can’t be prosecuted for child neglect, the Oklahoma Court of Criminal Appeals ruled Thursday."   The ruling in State v. Agular, No. 2024 OK CR 18 (Okla. Ct. Crim. App. July 18, 2024) (available here), is an interesting read, and here are a few passages from the majority opinion:

The issue in this appeal is whether an expectant mother who holds a medical marijuana card and uses the drug while pregnant has exposed her unborn child to illegal drugs constituting the crime of child neglect, which in Oklahoma includes "the failure or omission to protect a child from exposure to . . . the use, possession, sale, or manufacture of illegal drugs." 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) (emphasis added).  The Information charges Aguilar with a single felony count of child neglect by "exposing J.W.B. to controlled dangerous substances in utero, specifically Marijuana." (Emphasis added). Thus, the charging document accuses Aguilar of a crime which does not exist, i.e., child neglect by exposure to "controlled dangerous substances" as opposed to exposure to "illegal drugs[.]"  This is not a matter of semantics, and although this charging error does not determine the outcome of this appeal, the apparent confusion in terminology and definitions which led to that error is central to understanding how to properly resolve this case.

The terms "controlled dangerous substance" and "illegal drugs" are not synonymous; the former includes hundreds of prescription drugs which, like marijuana, are lawful to possess only with a prescription or other legal authorization.  The term "controlled dangerous substance" is defined in 63 O.S.Supp.2019, § 2-101(8) as any drug listed in any of the Schedules I through V of the Uniform Controlled Substances Act.  However, neither that Act nor any other provision of Oklahoma law defines the term "illegal drug", so we must ascertain the meaning of that term, and specifically, whether the marijuana use in this case is included within it so as to constitute child neglect....

We find that the most logical reading of 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) is that "illegal drugs" means those drugs whose possession or use violated the law at the time of that possession or use. Hence, an expectant mother who exposes her unborn child to illegal methamphetamine could be convicted of child neglect.  See State v. Green, 2020 OK CR 18, 474 P.3d 886.  Conversely, under that definition, an expectant mother's licensed possession and use of medical marijuana would not trigger an automatic finding of neglect for failure to protect her unborn child from exposure to illegal drugs because as to her, marijuana is not an illegal drug.

One of the two dissents includes this passage providing a different view of this matter:

The child neglect statutes were undoubtedly enacted to protect children from harm. Marijuana is still an illegal Schedule I drug except for a person who holds a medical marijuana license. In this case, the baby's exposure to Appellee's use and possession of marijuana, a Schedule I drug, is illegal because the baby has no medical marijuana license. It is not the mother's use or possession of marijuana that is criminalized by the child neglect statute, but her exposure of her unborn child to the use or possession of marijuana, an illegal drug for the child.

"Marijuana and the Tyrannies of Scheduling"

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

The Drug Enforcement Administration (DEA) is about to reschedule marijuana under the Controlled Substances Act (CSA), marking an historic shift in federal policy toward the drug.  This Essay analyzes the reasoning behind the agency’s decision and its implications for other Schedule I drugs, including promising psychedelics like psilocybin and methylenedioxymethamphetamine (MDMA). 

The Essay begins by highlighting a new test the agency introduced to determine whether a drug has a “currently accepted medical use” (CAMU).  In the past, the DEA insisted CAMU could be demonstrated only by successfully completing rigorous scientific research demonstrating a drug is effective.  But because the CSA limits the ability to conduct such research on Schedule I drugs, the agency’s CAMU test proved nearly impossible to satisfy, imposing what I call the Tyranny of Science.  In its latest marijuana rescheduling decision, however, the DEA announced that CAMU could also be demonstrated by showing there is already widespread clinical use of a drug.

Because state medical marijuana programs are wildly popular, the agency was able to find that marijuana has a CAMU under the new test, even though scientific proof of its medical efficacy is still lacking. Nonetheless, I argue the new CAMU test is unlikely to facilitate rescheduling of any other drug. In effect, the new test requires convincing popular majorities to pass state laws legalizing medical use of a drug the federal government has banned outright. Although marijuana advocates eventually convinced enough voters in enough states to satisfy this daunting test, no other Schedule I drug is likely to repeat that feat anytime soon (if ever).

But the Essay proposes a way to soften the Tyrannies of Scheduling: I argue the DEA should de-emphasize CAMU in scheduling decisions. The agency has long insisted that a drug with no CAMU must be placed on Schedule I, regardless of its harms.  But the agency has never offered a persuasive rationale for making CAMU paramount in scheduling decisions, and the Essay shows that the agency’s approach is contrary to the text and purposes of the CSA.  De-emphasizing CAMU would reduce the distortive influence the tyrannical CAMU tests now wield over the administrative scheduling process, resulting in more rational scheduling decisions that better reflect the benefits and dangers of controlled substances, as Congress intended.

Rounding up some recent notable marijuana legal news and commentary from various quarters

I have not blogged in this space much latety as I have been consumed with activity by the US Supreme Court and other legal developments in recent weeks.  In addition, I do not usually cover much day-to-day marijuana news because all sort of outlets cover this news (and Marijuana Moment covers it especially well).  But as these streams come together, I though it useful to do a quick post highlighting some notable marijuana legal news and commentary.  So:

From the AP, "Brazil’s Supreme Court decriminalizes possession of marijuana for personal use"

From Bloomberg Law, "Federal Cannabis Law Dispute Tossed by Massachusetts Judge"

From Harris Sliwoski, "Cannabis Law and Gun Rights: News from SCOTUS"

From Marijuana Moment, "South Dakota Law Banning Intoxicating Hemp Products Takes Effect After Judge Declines To Block It"

From Marijuana Moment, "DeSantis Seems To Concede He Vetoed Hemp Ban Bill, In Part, To Engage Industry In Marijuana Legalization Opposition Campaign"

From MinnPost, "Court decision ending cannabis odor as sole reason for search codified by Minnesota lawmakers"

From the Missouri Independent, "Missouri courts still slogging through marijuana crime expungements, long after deadline"

From MJBiz Daily, "How will Supreme Court ruling affect marijuana rescheduling?"

"Ohio Principals' Perspectives on How Adult-Use Marijuana May Impact Schools and Students"

The title of this post is the title of this terrific new report now available via SSRN and authored by Peter Leasure Jana Hrdinova with the Drug Enforcement and Policy Center.   Here is the report's abstract:

Over the last decade, significant effort has been devoted to examining whether the legalization of recreational cannabis leads to higher rates of use among youth given that some research links adolescent marijuana use with various negative educational, health, and safety outcomes.  Although some national survey results over the last decade suggest that current marijuana use among high school students has decreased, the concern about youth use remains (especially in jurisdictions that have recently legalized marijuana for recreational use).  The goal of the current study was to explore current issues with student marijuana use in Ohio’s K-12 schools and anticipated future issues given the recent legalization of adult-use marijuana in Ohio.

In December 2023, before any recreational marijuana was available for sale in the state of Ohio, an online survey was distributed to Ohio’s K-12 principals that covered three general areas: current student behavior with respect to marijuana, anticipated impact of marijuana legalization on students, and anticipated impact of marijuana legalization on schools and its policies.  The results indicated notable agreement among principals that current marijuana use on school premises and away from school premises was perceived as a problem.  Principals also reported high levels of concern about the anticipated impact of cannabis legalization on their students with respect to increased marijuana use among students, increased physical and mental health issues, negative impact on academic performance, and negative impact on students’ behavior at school.  While the results generally showed higher levels of agreement about expected negative impacts among principals at high schools and middle schools, elementary school principals still noted modest to high levels of concern for many questions.  Given those results, it is not surprising that many principals stated that they would likely increase education about the negative effects of marijuana use. Further, over 80% of principals noted that more funding should be provided to Ohio schools for marijuana-specific education now that recreational marijuana is legalized in Ohio.

"Cannabis Law Practice: Lessons for the Legal Profession in the Twenty-First Century"

The title of this post is the title of this new paper authored by Eli Wald and available via SSRN.  Here is its abstract:

The gradual states-driven legalization of cannabis, first medicinal marijuana followed by recreational marijuana, combined with decreased enforcement of federal law, has led to the emergence and growth of the marijuana industry and with it increased demand for cannabis legal services.  This Article is the first to study cannabis law practice in the United States.  In addition to answering fundamental questions about this growing area of law practice, including who cannabis lawyers are, where they practice, and what ethical challenges they face, the Article also investigates the insights cannabis law practice reveals and the lessons it teaches about the American legal profession.

Robust coverage of rescheduling at Marijuana Moment

Anyone and everyone who seriously follows marijuana news – of which there is plenty these days – knows to follow Marijuana Moment for lots of cannabis coverage and context.  In the past week, of course, news around possible federal rescheduling is coming fast and furious, and I will here use Marijuana Moment headlines (and links) to cover a lot of ground (which is sure to keep shifting):

"Attorney General Formally Moves To Reschedule Marijuana, But DEA Signals Resistance"

"DOJ Seeks Input On ‘Unique Economic Impacts’ Of Marijuana Rescheduling For ‘Multibillion Dollar Industry’"

"Former Obama Drug Czar Says Marijuana Is ‘Not Medicine’ And That ‘Big Cannabis’ Is Behind Federal Rescheduling Decision"

"Feds Begin Accepting Marijuana Rescheduling Comments, With Key Reform Groups Previewing How They Plan To Influence The Process"

"Biden Drug Czar Says Marijuana Rescheduling Is ‘Based On Science And Evidence’ But Misstates Impact On Prescription Access"

Biden Administration moves federal marijuana rescheduling forward to start public comment period

As reported in this Washington Post piece, "President Biden on Thursday publicly endorsed the Justice Department’s recommendation to loosen restrictions on marijuana, a long-expected measure that marks a historic shift in the nation’s drug policy." Here is more on an important next step in the rescheduling process:

The Justice Department, after receiving the go-ahead from the White House, published an official notice, opening a two-month period for the public to comment on the proposed change. The rule reclassifying marijuana as a Schedule III controlled substance would not go into effect until afterward.

Marijuana would not be legalized federally, but would move out of the Schedule I category reserved for tightly controlled substances such as heroin and LSD. If the rule goes into effect, marijuana will join a category including prescription drugs such as ketamine, anabolic steroids and testosterone....

The move comes a little more than two weeks after Attorney General Merrick Garland recommended to the White House that marijuana be reclassified as a Schedule III substance. The recommendation was applauded by cannabis supporters who for decades have complained that the federal government exaggerated the dangers of the drug.

Marijuana’s Schedule I status means it is tightly controlled because the federal government sees no proven medical value and a high potential for abuse. Stripping that designation would provide researchers easier access to cannabis and allow marijuana companies to deduct business expenses from their tax bills — a boon for an industry that has struggled because of high operating costs and competition from the illicit market. “Our ultimate goal is federal legalization, and we see Schedule III as a necessary and critical step along the way,” Edward Conklin, executive director of industry group U.S. Cannabis Council, said in a statement....

Some cannabis advocates say reclassification is an incremental step that doesn’t address the fundamental disconnect between the federal criminalization of the drug and the reality that a majority of Americans live in states where they can legally buy it. The implications of rescheduling for existing legal state markets are especially murky because marijuana has not been treated as a federally regulated medicinal product sold at pharmacies.

Meanwhile, cannabis critics fault the Biden administration for normalizing a drug that can still be harmful to individual and public health. Reclassification of marijuana — which is opposed by some former federal law enforcement officials, some Republicans in Congress and the anti-cannabis group Smart Approaches to Marijuana — could be delayed again by legal and regulatory challenges.

In announcing this move, the Justice Department released its formal federal register rule which will  start a 60-day comment period, as well as this 36-page document from the  Office of Legal Counsel detailing legal arguments surrounding rescheduling issues.

"The False Promise of Rescheduling"

The title of this post is the title of this timely new paper authored by Robert Mikos and now available via SSRN.  Here is its abstract:

The federal government appears poised to reschedule marijuana under the Controlled Substances Act (CSA). Advocates have suggested the move will generate substantial benefits for the state-licensed marijuana industry, which has struggled to secure basic legal and business services under federal prohibition.  But this Essay serves as a reality check.  It suggests the expectations surrounding rescheduling are highly inflated, for two reasons.

First, rescheduling still might not happen.  To reschedule marijuana, the Drug Enforcement Administration (DEA) would have to change its long-standing interpretation of key statutory scheduling criteria.  Even if the Biden Administration were willing to do that (the jury is still out), a future Administration might reconsider.  If President Biden loses the fall 2024 election, nothing would stop his successor from quickly returning marijuana to the tightly regulated Schedule I.

Second, even if it happens, rescheduling to a lower schedule under the CSA will not greatly improve the fortunes of the marijuana industry.  The CSA will continue to impose a litany of restrictions on the manufacture and sale of marijuana.  What is more, the Food Drug and Cosmetic Act (FDCA) will still ban all interstate commerce in the drug.  (Marijuana would still not be approved by the Food and Drug Administration, post-rescheduling.)  If firms in the industry fail to comply with the rules imposed by these two statutes — as seems almost inevitable — they could still be denied banking, bankruptcy protection, intellectual property protection, contract enforcement, and other key services, just as they are today.  The Essay suggests that only Congress can remove all these challenges. To obtain more impactful and comprehensive reforms to federal marijuana policy, advocates should eschew the false promise of administrative rescheduling and focus instead on convincing Congress to enact reform legislation.

Widespread new reporting that DEA is rescheduling marijuana to Schedule III under the Controlled Substances Act

As reported in this new AP article, the "U.S. Drug Enforcement Administration will move to reclassify marijuana as a less dangerous drug, The Associated Press has learned, a historic shift to generations of American drug policy that could have wide ripple effects across the country."  Here is more on a legal developments that has been expected, but is still a very big deal:

The DEA’s proposal, which still must be reviewed by the White House Office of Management and Budget, would recognize the medical uses of cannabis and acknowledge it has less potential for abuse than some of the nation’s most dangerous drugs. However, it would not legalize marijuana outright for recreational use. The agency’s move, confirmed to the AP on Tuesday by five people familiar with the matter who spoke on the condition of anonymity to discuss the sensitive regulatory review, clears the last significant regulatory hurdle before the agency’s biggest policy change in more than 50 years can take effect.

Once OMB signs off, the DEA will take public comment on the plan to move marijuana from its current classification as a Schedule I drug, alongside heroin and LSD. It moves pot to Schedule III, alongside ketamine and some anabolic steroids, following a recommendation from the federal Health and Human Services Department. After the public comment period and a review by an administrative judge, the agency would eventually publish the final rule....

Biden and a growing number of lawmakers from both major political parties have been pushing for the DEA decision as marijuana has become increasingly decriminalized and accepted, particularly by younger people. A Gallup poll last fall found 70% of adults support legalization, the highest level yet recorded by the polling firm and more than double the roughly 30% who backed it in 2000. The DEA didn’t respond to repeated requests for comment.

Schedule III drugs are still controlled substances and subject to rules and regulations, and people who traffic in them without permission could still face federal criminal prosecution. Some critics argue the DEA shouldn’t change course on marijuana, saying rescheduling isn’t necessary and could lead to harmful side effects....

Federal drug policy has lagged behind many states in recent years, with 38 having already legalized medical marijuana and 24 legalizing its recreational use. That’s helped fuel fast growth in the marijuana industry, with an estimated worth of nearly $30 billion. Easing federal regulations could reduce the tax burden that can be 70% or more for businesses, according to industry groups. It could also make it easier to research marijuana, since it’s very difficult to conduct authorized clinical studies on Schedule I substances.

The immediate effect of rescheduling on the nation’s criminal justice system would likely be more muted, since federal prosecutions for simple possession have been fairly rare in recent years. But loosening restrictions could carry a host of unintended consequences in the drug war and beyond.

Critics point out that as a Schedule III drug, marijuana would remain regulated by the DEA. That means the roughly 15,000 cannabis dispensaries in the U.S. would have to register with the DEA like regular pharmacies and fulfill strict reporting requirements, something that they are loath to do and that the DEA is ill equipped to handle.

Then there’s the United States’ international treaty obligations, chief among them the 1961 Single Convention on Narcotic Drugs, which requires the criminalization of cannabis. In 2016, during the Obama administration, the DEA cited the U.S.’ international obligations and the findings of a federal court of appeals in Washington in denying a similar request to reschedule marijuana. 

US Supreme Court grants cert to consider RICO claim brought by fired employee against medical marijuana company

One theme of my marijuana seminar is how the US Supreme Court has largely stayed out of broad legal uncertainties relating to marijuana reform for the past two decades (after very significant early rulings in United States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483 (2001) and Gonzales v. Raich, 545 U.S. 1 (2005)).  But today, via this order list, the Justice took up a new marijuana case -- sort of.  Here is how Jon Elwood at SCOTUSblog explains the case last week (links from the original):

 Medical Marijuana, Inc. v. Horn. Douglas J. Horn lost his job as a commercial truck driver after a drug test he took reflected the presence of tetrahydrocannabinol (“THC”), the active chemical compound in marijuana. Horn maintained that he ingested THC unwittingly by consuming a cannabis-derived product that Medical Marijuana, Inc. marketed as THC-free.

Horn sued, alleging injury under the Racketeer Influenced and Corrupt Organizations Act. The district court held that Horn lacked RICO standing because he sued for economic injuries from loss of earnings that were derived from his personal injury (exposure to THC). The U.S. Court of Appeals for the 2nd Circuit reversed, holding that although RICO only permits suit by a plaintiff “injured in his business or property” by racketeering activity, an economic injury resulting from personal injury sufficed.

Medical Marijuana, represented by Supreme Court veteran Lisa Blatt, petitions for review, arguing that the courts of appeals “are divided on whether economic damages arising from persual injuries … support civil RICO liability.” Medical Marijuana notes that the Supreme Court indicated – a bit offhandedly, in an opinion addressing another issue – that RICO’s private cause of action “exclud[ed], for example, personal injuries.” If granted, it should make for an interesting argument.

Cert has now been granted for an argument likely to take place in Ovtober or November this year. Not sure how much marijuana law and policy will become central to the briefing and argument, but it is interesting to see a marijuana-related case on the SCOTUS merits docket after a long dry spell.

"Budding cannabis law courses are growing — but not fast enough"

Though I am done teaching my Marijuana Law, Policy & Reform seminar for this semester, I am still having a grand time working with students on their final papers.  And all the work by and with my students all semester long deeply reinforces my sense that marijuana courses in law school can serve as a terrific way to cover all sorts of legal doctrines and policies and pragmatic issues that lawyers can and will confront in many settings.  With these matters in mind, I am so very pleased to see this new ABA Journal article with the headline that serves as the title fo this post.  Here are some excerpts:

Inspired by President Joe Biden’s call to review cannabis’ classification as a Schedule I controlled substance and many states’ moves to legalize weed for medical and general use, an increasing number of law schools around the country are offering cannabis law courses.

In the 2022-2023 academic year, 45 law schools—or about 22% of the 197 ABA-accredited schools—offered a combined total of 47 cannabis law courses, according to research by the Ohio State University Moritz College of Law’s Drug Enforcement and Policy Center.  Although that’s an increase of 24 schools compared to four years earlier in the 2018-2019 academic year, some professors think that even more are needed. “We’re still playing catch-up,” says Robert Mikos, a professor at the Vanderbilt University Law School who has taught a class on marijuana law and policy for more than 10 years....

As the weed business grows, so does the need for lawyers. There are jobs in this field, and they extend far beyond representing cannabis dispensaries, says Mikos ...  Opportunities include working for government regulatory agencies tasked with supervising the licensed cannabis industry, working as advocates and representing investors whose holdings touch the industry, such as real estate that a dispensary wants to rent....

In the classroom, professors must balance theory with myriad practical and ethical issues embedded in the ever-changing state laws and federal regulation, they say. Intersections with cannabis law include constitutional law, taxes, intellectual property, real estate, the environment and workers’ rights.

Most cannabis law classes are directed at upper-level students.  “It’s a great capstone course,” Mikos says. “If you’re a 3L, you might have encountered already constitutional law, criminal law, corporations or administrative law. Now, you get to put that into practice and put it all together in a very concrete way.”

Student presentation examines the modern realities of modern marijuana politics and policy

The politics of marijuana reform is an ever-evolving topic, especially here in Ohio. And this topic is a focal point for one of my students this week in my Marijuana Law, Policy & Reform seminar. As noted many tmes before, prior to their presentations, students are expected to provide here some background on their topic and links to some readings or relevant materials. The second of our presentations taking place in class this week has been described (along with background readings) this way:

When legislators and citizens find themselves at odds when contemplating policy, the citizens often turn to the ballot initiative. This is often the case in a number of states where legislators are hesitant to enact what might be divisive marijuana reform.  As such, the ballot initiative has found itself intertwined with the direct democracy engaged in marijuana advocacy.  But what happens when the marijuana conversation enters particularly conservative states, and the legislators aren't keen to accept the voters' will?  With marijuana being legalized in most liberal-leaning states, the topic has become more controversial in areas with particularly deep-seated ideas about how marijuana will negatively impact communities.

Whether through vocal opposition or more insidious procedural challenges, legislators have made their disdain for marijuana known.  The embers of the war on drugs still glow warmly in red states as the formalities of the ballot initiative are weaponized to inhibit supporters.  Signature, district, and single-subject requirements all lend opportunities to prevent meaningful reform where policy-based opposition fails.  In the shadows of the 2020 presidential election where democracy was shaken, many officials have deemed the will of the people to be inconsequential and something to be ignored where inconvenient. Moving forward, the need for federal legalization is stronger than ever, and advocates must navigate a process and game where the chips are undoubtedly stacked against them.

Background reading:

Law review article:  "Taking the Initiative: Marijuana Law Reform and Direct Democracy"

Ohio law on Initiated Statute procedures

Ohio Issue 2 reform press coverage: "Ohio GOP Senate President Lays Out Process To Revise Marijuana Law, Arguing Voters Didn’t Understand Some Provisions"