Marijuana Law, Policy & Reform

US House subcommittee hearing scheduled on "Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level"

Interestingly, on the morning of Election Day, the US House Committee on Oversight and Reform released this notice announcing that on "Tuesday, November 15, 2022, at 10:00 a.m. ET, the Subcommittee on Civil Rights and Civil Liberties will host a hybrid hearing titled 'Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level'.” The next evening, this follow-up memo was released providing a lot more notable details about this notable congressional hearing (including a list of scheduled witnesses).  Here are excerpts:

On October 6, 2022, President Biden announced that he granted a pardon to everyone convicted of simple marijuana possession under federal law and called for a review of how marijuana is scheduled under the Controlled Substances Act (CSA). Advocates for cannabis reform welcomed the President’s actions but continue to call for action in the legislative branch to decriminalize cannabis....

This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs; and the ability for the legal cannabis industry to access financial services.

And this official website provides some more interesting background and also the expected witnesses. Here is a snippet:

On Tuesday, November 15, 2022, at 10:00 a.m. ET, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, and Rep. Nancy Mace, Ranking Member of the Subcommittee on Civil Rights and Civil Liberties, will hold a hybrid hearing to examine the many benefits of cannabis decriminalization at the federal level, including addressing racial disparities in the criminal justice system, improving treatment options for veterans, and allowing marijuana companies to access traditional banking services.

Marijuana arrests account for 43% of all drug arrests, and nine in ten of those marijuana arrests are for simple possession. Although Black and white people use cannabis at roughly the same rates, Black people are nearly four times more likely to be arrested for violating marijuana possession laws, which carries life-altering implications for employment, housing, and education. Decriminalizing cannabis at the federal level and expunging criminal convictions for possession would alleviate these burdens and allow for societal advancement.

Marijuana Moment has good coverage of this planned hearing in pieces here and here.

Germany poised to move forward with full marijuana legalization

As reported in this Washington Post piece, "Germany moves to legalize recreational cannabis," it appears that the biggest country in the EU is about to go all in on MJ.  Here re the details:

Germany on Wednesday announced plans to legalize cannabis for recreational use. It was a move the country’s health minister said would make Germany Europe’s “most liberal cannabis legalization project” but also its “most tightly regulated market.”

Presenting a detailed cornerstone paper laying out a slate of regulations to Germany’s cabinet Wednesday, Health Minister Karl Lauterbach said the legalization of cannabis is necessary to end Germany’s “unsuccessful fight against drug-related crime,” and its flourishing black market. The goal of the change is to reduce consumption, especially for young people, he said in a tweet.

Under the government’s new plans, cannabis and THC will no longer be classified as narcotics. The substances will be able to be produced, supplied and distributed to people 18 or older, within a licensed and government-regulated environment — including specialist shops and, “if necessary,” pharmacies. Adults can possess 20 to 30 grams of recreational cannabis, both in private and in public. And Germans will be able to cultivate their own cannabis, to some extent....

Germany also plans to impose a “cannabis tax” and a potential upper limit on THC content for adults under 21. Advertising for cannabis will be completely prohibited, and neutral outside packaging will be required.

There is no set timeline for the plan, and the draft rules still need to be assessed by the European Commission and made into law. Medical marijuana, in limited circumstances, has been legal in Germany since 2017.

"Foreshadowing an Inevitable Clash: Criminal Probation, Drug Treatment Courts, and Medical Marijuana"

The title of this post is the title of this new paper authored by Michael Sousa available via SSRN. Here is its abstract:

The criminal justice system underwent two revolutionary developments over the past twenty years – the legalization of medical marijuana at the state level, which provides criminal immunity protections for qualifying patients, and the exponential rise of drug treatment courts as alternatives to incarceration.  Traditionally, offenders serving probationary sentences are generally prohibited from using drugs as one condition of probation. But courts are now increasingly confronted with challenges to probationary conditions prohibiting the use of medical marijuana in states where it has been legalized.  The trend among courts permits the medicinal use of marijuana during probationary sentences and invalidates conditions prohibiting such use for therapeutic purposes.  Drug treatment courts are a form of probation that offer intensive treatment services for offenders with substance abuse disorders. Most drug treatment courts across the country operate on an abstinence-based model.

While to date there have been no reported challenges to prohibiting the use of medical marijuana by participants in drug treatment court programs, the legal and practical issues are brimming just below the surface, and it is only a matter of time before a clash occurs between criminal immunity provisions under state medical marijuana laws and their consequential applicability in the drug treatment court landscape.  This article takes a forward-looking approach by foreshadowing this seemingly straightforward, but complicated question: how will criminal immunity provisions under state medical marijuana laws and the judicial protections afforded to offenders on regular probation be construed by appellate courts when inevitably challenged by drug treatment court participants?  This is the first scholarly article to address the knotty legal and practical issues underlying this inquiry.  The purpose of this contribution then is to provide future scholars, appellate courts, drug treatment courts, legal actors, and drug treatment court professionals with a robust foundation to draw upon in thinking about the adaptability of medical marijuana use in the drug treatment court domain.

Prez Biden asking to start "administrative process to review expeditiously how marijuana is scheduled under federal law"

In this post at my other blog, I focused on the interesting (but not really big) news, set forth in a this official statement from the White House, that Prez Biden today announce that his is "pardoning all prior federal offenses of simple marijuana possession" and that he is "calling on governors to pardon simple state marijuana possession offenses."  I will likely blog more over there about the criminal justice echoes of this interesting mass pardon announcement and exhortation to governors to follow suit.

But here, where we focus on "Marijuana Law, Policy & Reform," I want to focus on the interesting (and perhaps really) news that Prez Biden has also leaned into rescheduling of marijuana via this part of his statement:

Third, I am asking 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.  Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances.   This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic. 
 
Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.

I have been asked a few questions already about how long it will take to conduct an "administrative process to review expeditiously how marijuana is scheduled under federal law." My sense is that it will take years, not months, and that there is sure to be lots of debate over the science and politics of rescheduling even if there is a broad consensus that marijuana should no longer be on schedule I.  This Marijuana Moment piece, headlined "DOJ To ‘Expeditiously’ Act On Biden’s Marijuana Pardon Directive, While HHS ‘Looking Forward’ To Scheduling Review," covers a bit of the process and the politics:

The Justice Department and U.S. Department of Health and Human Services (HHS) say they will quickly act to follow President Joe Biden’s new directive to review marijuana’s federal scheduling status and process mass cannabis possession pardons.

Within an hour after the president made the surprise announcement, a DOJ spokesperson released a statement saying the department would abide by the cannabis directive in an expedited fashion.... “Also, in accordance with the President’s directive, Justice Department officials will work with our colleagues at the Department of Health and Human Services as they launch a scientific review of how marijuana is scheduled under federal law,” the agency said.

HHS Secretary Xavier Becerra separately said in a tweet — posted as precisely 4:20 PM ET — that he’s “looking forward to working with Attorney General Garland to answer [Biden’s] call to action to review how marijuana is scheduled under federal law.”...

Biden’s scheduling review—which would be conducted by DOJ and HHS—could reshape federal marijuana policy depending on the final recommendation. Biden has faced numerous calls from advocates to use his executive authority to unilaterally initiate that process.

The agencies could ultimately recommend moving marijuana from the strictest classification of Schedule I under the Controlled Substances Act (CSA) to a lower schedule or no schedule at all.

Biden has said he supports rescheduling to Schedule II, but advocates have pushed for complete descheduling, which would effectively end prohibition.

Interesting accounting of the disinclination of congressional candidates to talk about cannabis

John Hudak has this interesting new piece over at Brookings discussing the continued failure of marijuana reform becoming a significant campaign issues in this year's congressional races.  The piece is titled "Congressional candidates’ silence on cannabis reform," and is worth a full read.  Here is how the piece starts and concludes:

Cannabis reform has grown in popularity with voters, activists, and state legislators; cannabis is now legal for medical use in 38 states and DC and for adult-use in 19 states and DC.  Despite those advances in state level reforms and in the broader conversation nationwide, Congress has failed to pass a major piece of legislation addressing the issue, and many voters and activists wonder why.

One argument is that federal level officials — in the executive branch and in Congress — simply don’t care enough about the issue to address it.  To consider this question, I included a coding about cannabis reform in Brookings Primaries Project in 2022.  The Brookings Primaries Project examines the publicly stated views—via the websites and social media presence — of all candidates running in U.S. congressional primary races.  We coded each candidate on a four-point scale: whether they supported legalization or decriminalization of cannabis, whether they supported medical legalization only, whether their position was complex or indecipherable, and whether they failed to mention the issue at all.

The results provide three general takeaways.  First, primary candidates for Congress do not consider the issue important enough to elevate to be included on their website or on social media.  Second, on average, candidates who do engage on the issue are at least not harmed by staking out a public position.  Third, stark differences exist between Democratic primary candidates for Congress and Republican primary candidates for Congress....

It is clear that among all candidates, all Democrats, and all Republicans, taking no public position on cannabis was the most popular strategy during the 2022 congressional primaries.  However, among candidates who chose to take a clear position on cannabis, Republicans were more likely to oppose legalization than support it, and the reverse is true for Democratic primary candidates who took a position on cannabis.

In sum, cannabis as a political issue has risen in importance over the past 25 years.  As state legislatures and voters via referenda have enacted changes to cannabis laws, the issue has become more popular even in the halls of Congress.  However, cannabis reform advocates’ frequent stupefaction at the lack of progress at the federal level bumps up against a stark reality.  Most candidates for federal office do not see cannabis as an issue prominent enough to discuss, and deep partisan differences still remain among elected officials, even as support for cannabis in the general public has exploded in recent years.  And the true motivator for a member of Congress to take or change a position — whether voters hold their feet to the fire over an issue — has not yet become a reality in the vast majority of Congressional races across the United States.

Legalization ballot initiative sidelined by state Supreme Court in Oklahoma, while initiative cleared to go forward in neighboring Missouri

As students in my marijuana seminar know (too) well, I find the modern history of marijuana reform throughout the United States to be a fascinating legal and political story.  And sometimes I view some of the regional variations in these stories to be especially remarkable, and one such recent example comes from the center of our great nation.  Specifically, I am referencing here the notably different outcomes of legal challenges to state ballot legalization initiatives in neighboring Oklahoma and Missouri.  Though these states share a (small) border, they are not sharing the same outcomes in lawsuits challenging efforts to put marijuana legalization before votes, as reported in this Marijuana Moment articles:

"Missouri Marijuana Legalization Initiative Will Appear On November Ballot After State Supreme Court Rejects Prohibitionists’ Challenge"

An initiative to legalize marijuana in Missouri is officially cleared for ballot placement following a month-long legal back-and-forth between the campaign and prohibitionists.  A lawsuit filed last month sought to keep the Legal Missouri 2022 reform proposal off the ballot after it was certified by the secretary of state.  But after two lower courts dismissed the challenge, the state Supreme Court on Tuesday delivered the final word that the legal battle is over.

"Oklahoma Supreme Court Says Marijuana Legalization Won’t Be On November Ballot, But Will Be Voted On In Future Election"

Oklahoma voters will not get the chance to vote on a marijuana legalization initiative in November, with the state Supreme Court on Wednesday rejecting the campaign’s lawsuit that sought to secure ballot placement this year.  However, justices also dismissed two separate legal challenges to the ballot title, clearing the initiative’s path for a vote during the state’s next general or special election.

Legal battles over initiatives are never unusual, and a range of legal tripwires can often attend efforts to bring ballot measures directly to voters on any topic.  But I surmise that these kinds of challenges to marijuana reform measure have found growing success, perhaps unsurprisingly, as initiative move from bluer to redder states. Judges and other legal actors in bluer states can often seem more welcoming of ballot initiatives in this arena (and we have seen politicians in Maryland and New Jersey place marijuana reform initiatives on the ballot), whereas these actors in redder states sometime seem far more keen to keep voters from having a chance to directly weigh in on these issues.

Pennsylvania Gov announces mass pardon project for "select minor, non-violent marijuana criminal convictions"

As reported in this CBS News piece, "Pennsylvania Gov. Tom Wolf and Lt. Gov. John Fetterman announced a joint effort Thursday to pardon many people convicted with non-violent marijuana offenses. The large-scale project, called the Pennsylvania Marijuana Pardon Project, will allow people with select convictions to submit an application online for an official pardon from the state." Here is more:  

The website will allow Pennsylvanians to submit applications between Sept. 1, 2022 and Sept. 30, 2022. The reason for the expedited timeline is the expiration of Wolf's term, which will end when the new gubernatorial candidate is sworn into office on Jan. 17, 2023.

According to a press release on the project, Wolf has granted 2,098 pardons since taking office, 326 of which were part of an "expedited review for nonviolent marijuana-related offenses." This is in contrast to the 1,805 total pardons that were granted in the 15 years prior to Gov. Wolf's time in office, the release said.

"I have repeatedly called on our Republican-led General Assembly to support the legalization of adult-use marijuana, but they've yet to meet this call for action from myself and Pennsylvanians," Wolf said in the release. "Until they do, I am committed to doing everything in my power to support Pennsylvanians who have been adversely affected by a minor marijuana offense on their record."

Those eligible must have been convicted on either "Possession of Marijuana" or "Marijuana, Small Amount Personal Use" charges for an amount under 30 grams, CBS Pittsburgh reported. The conviction has to have taken place in the state of Pennsylvania, and while there is no age limit on the conviction, only those without additional convictions on their record are eligible to apply. The release estimates that thousands of people will be eligible.

After Pennsylvanians submit their online application, the Board of Pardons will conduct a merit review, after which those granted approval will have a public hearing were the Board will vote on which applications to send for a pardon, the release said. Those selected will be sent to Wolf for pardons after Dec. 16. If the Governor grants those pardons, those selected will still need to petition the court to get the convictions expunged from their records.

"Nobody should be turned down for a job, housing, or volunteering at your child's school because of some old, nonviolent weed charge - especially given that most of us don't even think this should be illegal," Fetterman — who is currently running against Dr. Mehmet Oz for a Senate seat — said in the release.

However, some are concerned that the criteria for the pardon is too narrow. Former prosecutor and marijuana defense attorney Patrick Nightingale told CBS Pittsburgh that he's concerned the eligible convictions do not include the use of paraphernalia, which can include grinders, rolling papers, smoking devices, and even plastic baggies....

Studies have shown that marijuana charges disproportionally impact communities of color. Black people are 3.6 times more likely than White people to be arrested on cannabis-related charges, though both used marijuana in similar quantities, according to the American Medical Association.

While more than 20 states have passed laws to expunge or seal marijuana-related records, according to the AMA, that's only a fraction of the 38 US states, two territories, and Washington, DC that have legalized medical marijuana use. Nineteen have legalized recreational use as well, according to the National Conference of State Legislatures.

This official press release discusses the program and provides this instruction and link for applicants: "Individuals can apply for an accelerated pardon through this one-time project at pa.gov/mjpardon. Once a person submits their application, they will be contacted if any necessary follow-up is needed."

Reviewing just some of the dynamic marijuana reform stories from the states

The stories of marijuana reform in the United States are still mostly dynamic state stories, and here is just a handful of state stories from big states making headlines in just the last few days:

From California, "The casualties of California legalizing pot: Growers who went legal"

From Florida, "Florida Gov. DeSantis wants pot companies to pay more"

From Michigan, "Marijuana growing moratorium?: Supply and demand could lead to changes in Michigan"

From New York, "New Yorkers with pot convictions will now be the first to get to sell it"

From Virginia, "Inside the ‘wild, wild west’ of Virginia’s marijuana market"

And, of course, there are at least a half-dozen additional states with marijuana reform initiatives on the ballot this fall.  This Hill article provides an overview of these state stories under this full headline: "Voters in these states may soon decide whether to legalize marijuana: Six states could have ballot measures up for vote in the November midterm elections, and should they pass, will join 19 others in legalizing recreational marijuana."

Split First Circuit panel holds dormant Commerce Clause applies to federally illegal marijuana businesses

In a notable ruling today in Northeast Patients Group v. United Cannabis Patients and Caregivers of Maine, No. 21-1719 (1st Cir. Aug. 17, 2022) (available here), a split First Circuit panel applied the dormant Commerce Clause to a provision of Maine's Medical Marijuana Act. Here is how the majority opinion gets started:

This appeal concerns whether the Maine Medical Use of Marijuana Act, 22 M.R.S. §§ 2421-2430 (2009) ("Maine Medical Marijuana Act"), violates what is known as the dormant Commerce Clause of the United States Constitution by requiring "officers" and "directors" of medical marijuana "dispensar[ies]," id. § 2428(6)(H), operating in Maine to be Maine residents.  The United States District Court for the District of Maine held that Maine Medical Marijuana Act's residency requirement does violate the dormant Commerce Clause, notwithstanding that Congress enacted the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., to "eradicate the market" in marijuana, see Gonzalez v. Raich, 545 U.S. 1, 19 n.29 (2005).  The District Court concluded that is so, because the residency requirement is a facially protectionist state regulation of an interstate market in medical marijuana that continues to operate even in the face of the CSA.  We affirm.

Here is how the dissent by Judge Gelpi starts:

I respectfully dissent from the affirmation of the district court's opinion. I agree that Maine's residency requirement, that "[a]ll officers or directors of a dispensary must be residents of this State" set forth at 22 M.R.S. § 2428(6)(H), incontestably constitutes protectionist legislation. Indeed, at oral argument, counsel for Defendant-Appellant Kristen Figueroa conceded as much. Moreover, Figueroa does not assert that the measure could meet the strict scrutiny standard to which protectionist legislation is ordinarily subject. Indeed, the Supreme Court and this court have routinely invalidated similar protectionist legislation in markets ranging from liquor store licensing to egg products. See, e.g., Tenn. Wine & Spirits Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2457 (2019); United Egg Producers v. Dep't of Agric., 77 F.3d 567, 57172 (1st Cir. 1996). Following this caselaw, the majority affirms the district court by concluding that Maine's measure fails under the dormant Commerce Clause, because defendants have not satisfactorily demonstrated Congress's "unmistakably clear intent to allow otherwise discriminatory regulations," United Egg Producers, 77 F.3d at 570 (citing Wyoming v. Oklahoma, 502 U.S. 437, 458 (1992)), or demonstrated that Congress has otherwise consented to such protectionist legislation.  In the ordinary course, in an ordinary market, I would agree that such a measure is unconstitutional under well-trodden dormant Commerce Clause principles and caselaw.

But the national market for marijuana is unlike the markets for liquor licenses or egg products in one crucial regard: it is illegal. Congress in 1971 enacted the Controlled Substance Act (CSA) pursuant to its Commerce Clause powers, designating marijuana a Schedule I controlled substance. See 21 U.S.C. § 841; id. § 812(c)(Schedule I)(c)(10); Gonzales v. Raich, 545 U.S. 1, 22 (2005). Under the CSA, it is a crime "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). It is here that I part ways with the majority, because I disagree that the test we have developed for the mine-run of dormant Commerce Clause cases apply automatically or with equal vigor when the market in question is illegal as a matter of federal law. As such, I do not believe that the United Egg Producers test -- which, prior to today, we have only ever applied in cases involving legal markets -- extends to national markets that Congress has expressly made illegal.  Instead, I start from the premise that we should vindicate the principles that animate the dormant Commerce Clause -- and I conclude that the same constitutional precepts that led us to articulate the United Egg Producers test counsel against its application here.

Nevada Supreme Court rejects claim that state's "lawful use" statute protects casino worker from discharge for off-duty marijuana use

Nearly a decade ago, a fascinating employment law case began working its way through the Colorado state court system following the termination of Brandon Coats by the Dish Network. Coats, who used medical marijuana following a car accident that left him a quadriplegic, claimed that Colorado state law protected him from discharge simply for having tested positive for marijuana since he used the drug only off-duty and lawfully under state law. The case involved sympathetic facts early in the modern marijuana reform era, and the case generated lots of amicus briefs and media attention when it reached the state's Supreme Court. In the end, the Colorado Supreme Court ruled in Coats v. Dish Network, 350 P.3d 849 (Colo. 2015) that "an activity such as medical marijuana use that is unlawful under federal law is not a "lawful" activity under" the applicable state employment law.

I was reminded of Coats and all the attention it generated when I tripped across this morning a very similar ruling handed down late last week by the Nevada Supreme Court.  In Ceballos v. NC Palace, No. 82797 (Nev. Aug 11, 2022) (available here), the underlying facts are a bit different: employee's termination comes after state-lawful recreational marijuana use and the language of the applicable state-law statutory employment protections are a bit different.  But the result is the same, as the start and end of the unanimous ruling reveals:

NRS 613.333 creates a private right of action in favor of an employee who is discharged from employment for engaging in "the lawful use in this state of any product outside the premises of the employer during the employee's nonworking hours."  The question presented is whether adult recreational marijuana use qualifies for protection under this statute.  We agree with the district court that it does not.  Although Nevada has decriminalized adult recreational marijuana use, the drug continues to be illegal under federal law.  Because federal law criminalizes the possession of marijuana in Nevada, its use is not "lawful ... in this state" and does not support a private right of action under NRS 613.333.  Further, because NRS 678D.510(1)(a) authorizes employers to prohibit or restrict recreational marijuana use by employees, an employee discharged after testing positive at work based on recreational marijuana use does not have a common-law tortious discharge claim.  We therefore affirm....

The interplay between adult recreational marijuana use and employment law, moreover, is one the Legislature has addressed in NRS 678D.510(1)(a) and, to a lesser extent, in NRS 613.132.  Palace Station terminated Ceballos for failing a workplace drug test after engaging in adult recreational marijuana use before his shift.  NRS 678D.510(1)(a) specifically authorizes employers to adopt and enforce workplace policies prohibiting or restricting such use.  If the Legislature meant to require employers to accommodate employees using recreational marijuana outside the workplace but who thereafter test positive at work, it would have done so.  Cf. NRS 678C.850(3) (requiring employers to accommodate the medical needs of employees who use medical marijuana unless certain exceptions exist).  It did not.  It also did not extend the protections afforded by NRS 613.333 and NRS 613.132 to reach the circumstances giving rise to Ceballos's termination.  See supra Section II.A. (discussing the limits the Legislature has set on the protections NRS 613.333 and NRS 613.132 afford).  This court declined to allow the employees in Chavez and Sands Regent to pursue common-law tortious discharge claims to redress the discrimination they alleged, because doing so would intrude on the prerogative of the Legislature, which had enacted statutes addressing the same subject matter.  See Chavez, 118 Nev. at 294, 43 P.3d at 1026; Sands Regent, 105 Nev. at 440, 777 P.2d at 900.  Doing so would be even less appropriate here.

Effective review of the state of new state marijuana reforms in 2022

With lots of bills being introduced and debated at the federal level, it is dangerously easy to overlook the fact that marijuana reform in the US has been almost exclusively a state story for a quarter century and is likely to remain mostly a state story even if some federal bills actually become law in coming months and years.  Thus, it is especially useful that Politico recently produced this effective round up of some recent state developments under the full headline "Where cannabis legalization efforts stand across the country: Gains in state legislatures slowed down in 2022, but advocates still have the ballot."  I recommend the full piece, and here is how it gets started:

With most legislative sessions across the country already wrapped up for the year, the results are clear: “Elected officials remain far behind the times,” said Karen O’Keefe, state policy director for Marijuana Policy Project. If it were left up to voters, O’Keefe believes, every state would have some form of legal cannabis by now.

As it stands, 19 states have embraced full legalization, while 19 others have enacted medical marijuana programs. But many of the remaining holdouts are staunchly conservative states where legalization skepticism runs deep among lawmakers.

Perhaps the biggest setback for industry advocates this year was Delaware, where a bill to remove penalties for possession passed with supermajorities in both chambers, only to be vetoed by the Democratic governor, John Carney. Recreational legalization efforts also came up short in Ohio, Hawaii and New Hampshire, while medical bills failed in Kansas, South Carolina, Tennessee and Kentucky.

Some legislative efforts were doomed from the outset, particularly Democratic-sponsored adult-use bills introduced in GOP-dominated state legislatures such as Louisiana, Wisconsin and Indiana.

But not all hope is lost for pro-legalization advocates. At least a half dozen states could have legalization questions on their November ballots. If all of those campaigns succeed, half of the states in the country would allow adults to possess — and eventually purchase — weed legally.

Weldon Angelos previews his testimony to US Senate on marijuana prohibition's harms

Over at my sentencing blog, I have spotlighted here what seems to be a truly historic congressional hearing taking place this afternoon, July 26, 2022, before the Subcommittee on Criminal Justice and Counterterrorism of the US Senate Judiciary Committee.   The hearing is titled "Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms," and the scheduled witnesses all seem likely to have something notable to say.  One of the scheduled witnesses is Weldon Angelos, and he previewed his testimony via this new Marijuana Moment commentary that is worth reading in full.  Here are excerpts:

Tuesday will be a historic day in the U.S. Senate. Members of a key subcommittee have invited me to testify at a hearing on cannabis reform and the harms of criminalization — a first-of-its-kind meeting in a chamber where marijuana policy and the lifelong consequences of prohibition have been swept under the rug for far too long.

My message to the panel will be simple: My name is Weldon Angelos, and I am living proof of the benefits of second chances.  But I’m far from the only person deserving of relief.  I plan to remind members that inaction will only continue to breed injustice, and there’s no more time to waste.

The topic of the hearing — the critically important issue of federal cannabis decriminalization — affects the lives of millions of Americans, from those who have interacted with the criminal justice system, to patients and veterans who get relief from cannabis....

National cannabis reform must include: (1) the release of federal cannabis offenders; (2) a true expungement and sealing of records; and (3) the creation of meaningful opportunities for the formerly incarcerated upon release.

With a comprehensive approach to cannabis reform, we could immediately assist many of the nearly 3,000 people serving federal prison time for cannabis offenses, as well as the tens of thousands of individuals whose lives and futures are haunted by records of cannabis arrests, convictions, and sentences.  Further still, Congress must provide the resources to address state-level cannabis arrests, convictions, and sentences, since each year hundreds of thousands of individuals become entangled in state criminal justice systems despite cannabis being legal in some form in 37 states, three U.S. territories, and the District of Columbia.

This is why I was excited and grateful to see the Cannabis Administration and Opportunity Act introduced last week.  This bill would deschedule cannabis, helping to end the harmful criminal justice impacts of prohibition and supporting the expungement and resentencing of cannabis convictions, all while allowing states the right to decide the direction their jurisdiction will take.

Congress must also address the residual effects of cannabis convictions.  Those with felony convictions can be politically disenfranchised, losing the right to vote or to serve on juries, for instance.  They lose other civil liberties like the right to possess a firearm legally, as well as lawful opportunities afforded to others in education and in public housing, among other things.  Cannabis convictions adversely impact credit scores too, and they can impede or entirely prevent employment, creating permanent barriers to true participation in society.

Even with a full presidential pardon, I still feel the stranglehold of my cannabis conviction.  In my home state of Utah, my prior conviction bars me from participating in the state’s legal medical cannabis industry.  The state refuses to issue licenses to individuals with felony cannabis convictions, even with a full presidential pardon.  In California — the other state I call home — my criminal history prevents me from accessing credit, capital, and financing despite having engaged in conduct that is now legal throughout the jurisdiction....

I realize that I am one of the lucky ones.  I am no longer inmate 10053-081.  I am Weldon Angelos, a reform advocate with the immense privilege of being invited to testify before a Senate panel. But my fortune is not universal.  I am reminded of all those left behind in prison — those who are still serving unjust sentences — many of whom are Black and Hispanic men and women who continue to serve time while predominantly white CEOs and entrepreneurs make millions from the recreational and medical cannabis industries around the country.  The cannabis industry should be able to grow and thrive, but not at the expense of those who are still incarcerated.

And as we think about federal cannabis reform and ensure the release of those who are still serving, we must also provide opportunities and resources to support reentry and create a pathway to expungement to stop the collateral consequences.

DEPC event: "Not a SAFE Bet: Equitable Access to Cannabis Banking"

I am pleased to spotlight another great Drug Enforcement and Policy Center (DEPC) event that is part of our summer 2022 Cannabis Regulatory Deep Dive.  (The first event in this series on "Interstate Commerce" can be watched at this YouTube link.).  This event is scheduled for August 17 at 12noon and is titled "Not a SAFE Bet: Equitable Access to Cannabis Banking."  This is how this event is described on this webpage (where you can register):

According to members of the Cannabis Regulators of Color Coalition, the SAFE Banking Act, as written, is not a safe bet to achieve fair and equitable access to financial services for those in the cannabis industry.

Please join us for another Cannabis Regulatory Deep Dive as our panel of experts shares their analysis of the SAFE Banking Act, why it would fall short of its goals, and recommendations to improve fair access to cannabis banking as detailed in their soon-to-be released paper, Not a SAFE Bet: Equitable Access to Cannabis Banking.

Panelists:
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University
Rafi Aliya Crockett, Commissioner, Washington, D.C. Alcoholic Beverage Control Board
Dasheeda Dawson, Cannabis Program Manager, City of Portland, Oregon 
Shaleen Title, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University

Senator Schumer finally to introduce his Cannabis Administration and Opportunity Act

As reported in this new Politico article, "Senate leaders are introducing sweeping legislation Thursday meant to lift federal prohibitions on marijuana more than 50 years after Congress made the drug illegal."  Here is more about a long-in-development, unlikely-to-become-law marijuana reform bill:  

Senate Majority Leader Chuck Schumer’s Cannabis Administration and Opportunity Act would decriminalize weed on the federal level and allow states to set their own marijuana laws without fear of punishment from Washington.

The bill has been a long time coming — Schumer, along with Sens. Ron Wyden (D-Ore.) and Cory Booker (D-N.J.) proposed a discussion draft more than a year ago — and its odds of passing in this Senate are slim. But the legislation will shape the conversation around cannabis legalization going forward and portions of it are likely to find their way into other bills that could pass before the end of the year.

The legislation includes both Democratic and Republican priorities: It expunges federal cannabis-related records and creates funding for law enforcement departments to fight illegal cannabis cultivation. It also establishes grant programs for small business owners entering the industry who are from communities disproportionately hurt by past drug laws, requires the Department of Transportation to research and develop a nationwide standard for marijuana-impaired driving, and restricts the marketing of cannabis to minors....

While marijuana legalization has spread rapidly across the U.S. over the past decade, Capitol Hill has not transitioned as quickly. Nineteen states now allow anyone at least 21 years old to possess and use the drug, and 37 states have established medical marijuana programs. National polls have consistently shown that roughly two-thirds of Americans back marijuana legalization, and support is even higher among younger voters.

But the votes aren’t yet there to pass Schumer’s bill on Capitol Hill. That’s in part because many lawmakers from states with legal markets don’t yet support substantial changes to federal law. Democratic Sen. Jon Tester, for example, represents a state where weed is legal — Montana — and says he does not support federal decriminalization. A handful of other Democrats told POLITICO that they are against legalization or are undecided, including Sens. Jeanne Shaheen (D-N.H.), Joe Manchin (D-W.Va.) and Bob Casey (D-Pa.). Schumer would need all Democrats, plus ten Republicans, to get the bill over the finish line.

Cannabis legalization advocates have had success in the past framing it with Republicans as a states’ rights issue, but some pro-decriminalization Republicans will likely be unhappy with the bill’s expungement of cannabis-related criminal convictions and its equity grant provisions.

Further complicating matters is that the House has twice passed its own sweeping marijuana legalization package, known as the Mariuana Opportunity, Reinvestment and Expungement Act. That legislation does not include much of the regulatory structure that’s part of the Senate bill, and also has a different tax rate....

Instead, some Democrats and Republicans are considering a smaller cannabis bill later this year that could see one or more provisions from the CAOA added to the SAFE Banking Act, a more widely-supported bill that would make it easier for banks to offer financial services to cannabis companies. That plan is still in the discussion stage and nothing formal has been decided.

Many of the changes added to the final Senate bill echo requests regularly made by Republicans. Law enforcement grants, a nationwide youth prevention campaign and traffic safety research all correspond to concerns that legalization skeptics have frequently raised. Schumer has met with Republicans — including Rep. Dave Joyce (R-Ohio), a co-chair of the Congressional Cannabis Caucus — in recent months to discuss where the two parties could potentially come together on weed legislation. Whether the changes will be enough to get enough Republicans on board, however, seems doubtful at this point.

Marijauna Moment's extensive coverage of this long-awaited news can be found here, and includes these additional details (and much more):

[T]he main thrust of the now-filed 296-page legalization bill closely resembles that of the earlier version, which weighed in at a mere 163 pages—though the senators highlighted a number of changes, which generally expand on the draft.

For example, there are revisions concerning cannabis industry workers’ rights, a federal responsibility to set an impaired driving standard, banking access, expungements and penalties for possessing or distributing large quantities of marijuana without a federal permit.

The bill would also create a new federal definition for hemp that would increase the permissible THC by dry weight to 0.7 percent from the current 0.3 percent, but also make it so all THC isomers would be included in that total, not just delta-9 THC.

Notable (and consequential?) news from Capitol Hill on federal marijuana reforms

The back end of this week brought some news from Congress regarding federal marijuana reform efforts.  Marijuana Moment has the essential news and helpful context in two lengthy pieces, which are linked below and briefly excerpted:

"House Approves More Marijuana Amendments To Defense Bill, Including Banking And Veterans Medical Access"

The U.S. House of Representatives on Thursday approved several marijuana reform amendments as part of a large-scale defense bill, including proposals to protect banks that work with state-legal cannabis businesses and allow U.S. Department of Veterans Affairs (VA) doctors to issue medical marijuana recommendations....

What remains to be seen is which, if any, of these amendments makes it through conference after the Senate advances its version of NDAA.  The chamber has generally been viewed as a barrier to enacting drug policy reform, especially with Republican minority leadership frequently challenging amendment germaneness.

"Senate Marijuana Legalization Bill ‘Could Come’ Next Week, But Congressional Sources Push Back On Report About Timeline"

The introduction of a long-awaited Senate bill to federally legalize marijuana is imminent, with two Senate sources telling Marijuana Moment on Thursday that the legislation could be filed “as early as next week.”

It’s been a year since Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) first released a draft version of comprehensive legislation to end federal cannabis prohibition and promote social equity in the industry. And on Thursday, Bloomberg reported that the bill’s introduction would be coming next week....

The timeline for the introduction of CAOA has been repeatedly pushed back as leadership has worked to gather input on various provisions and build bipartisan buy-in.... Details about any changes to the bill since it was released last year are still being heavily guarded.  But it’s expected to contain the key components: removing cannabis from the Controlled Substances Act, imposing a federal tax on marijuana sales, promoting equity in the industry and providing an avenue for relief for those who have faced federal cannabis convictions.

Once the measure is introduced, its path to passage is still murky.  There’s a fair level of skepticism about the prospects of reaching the 60-vote threshold needed to pass CAOA through the Senate.

DEPC event: "Cannabis Regulatory Deep Dive: Interstate Commerce"

I am pleased to spotlight a great Drug Enforcement and Policy Center (DEPC) event taking place tomorrow afternoon titled "Interstate Commerce."  This is how this event is described on this webpage (where you can register):

While the likelihood of cannabis legalization or descheduling on the federal level in 2022 remains relatively low, policy analysts and advocates are beginning to debate the impact federal legalization might have on existing state industries.  In particular, they are starting to discuss the transition to interstate commerce, should cannabis become legalized at the federal level.  Discussions are also forming around how and when such large-scale change should be implemented to minimize negative impacts on public health and safety and adequately address the interests of patients, users, and small businesses. 

Join the Drug Enforcement and Policy Center for a discussion of these and other topics with a panel of experts.

Panelists:
Scott Bloomberg, Associate Professor of Law, University of Maine School of Law
Geoffrey Lawrence, Director of Drug Policy, Reason Foundation
Adam J. Smith, Founder and Executive Director, Alliance for Sensible Markets
Shaleen Title, Distinguished Cannabis Policy Fellow, Drug Enforcement and Policy Center, The Ohio State University

Moderator:
Jeremy Berke, Senior Reporter, Business Insider

UPDATE:  This event was recorded and can now be watched via YouTube at this link.

"Maximizing social equity as a pillar of public administration: An examination of cannabis dispensary licensing in Pennsylvania"

The title of this post is the title of this notable new paper authored by Alfred Lee Hannah, Daniel J. Mallinson and Lauren Azevedo published in the Public Administration Review. (For the record, this research was supported by funding from the Drug Enforcement and Policy Center.)   Here is the paper's abstract:

Public administration upholds four pillars of an administrative practice: economy, efficiency, effectiveness, and social equity.  The question arises, however, how do administrators balance effectiveness and social equity when implementing policy?  Can the values contributing to administrative decisions be measured?

This study leverages the expansion of medical cannabis programs in the states to interrogate these questions.  The awarding of dispensary licenses in Pennsylvania affords the ability to determine the effect of social equity scoring on license award decisions, relative to criteria that represent the other pillars.  The results show that safety and business acumen were the most important determining factors in the awarding of licenses, both effectiveness concerns.  Social equity does not emerge as a significant determinant until the second round of licensing.  This study then discusses the future of social equity provisions for cannabis policy, as well as what the findings mean for social equity in public administration.

Two notable new missives to the Biden Administration about marijuana policy and practice

Marijuana Moment has effective coverage to two notable new letters sent recently to the Biden Administration.  Here are headlines, links and the ledes:

"Marijuana Regulators Coalition Pushes Biden Administration For Updated Federal Enforcement Guidance"

A coalition of current and former marijuana regulators is urging the Justice Department to instate updated guidance to federal prosecutors on cannabis enforcement priorities as an interim step while Congress considers broader legislation to end prohibition.

Ten members of the Cannabis Regulators of Color Coalition (CRCC) sent a letter to top DOJ officials, as well as the president and vice president, on Tuesday that addresses the urgent need to reinstate something like Obama-era guidance that generally recommended that prosecutors use discretion in marijuana-related enforcement for state-legal activities.

As the the coalition points out in the the letter, which was shared exclusively with Marijuana Moment, the 2013 guidance that was later rescinded by then-Attorney General Jeff Sessions during the Trump administration came before any states had launched retail cannabis sales. Now, with 19 states that have legalized for adult-use and the vast majority permitting some level of medical marijuana access for qualified patients, there’s a need to bring back something akin to the so-called Cole memo, CRCC said.

The updated memo should advise federal prosecutors against going after people for “crimes related to cannabis when those activities accord with relevant state law and a reasonable set of regulatory principles intended to promote safety and fairness,” the letter says.

"Senators Blast Biden Administration’s ‘Extraordinarily Disappointing’ Marijuana Stance"

A coalition of six U.S. senators are renewing their call for the Biden administration to deschedule marijuana and grant mass pardons for people with federal cannabis convictions, calling the Justice Department’s response to an earlier request for action “extraordinarily disappointing.”

In a letter that was sent to President Joe Biden, Attorney General Merrick Garland and Health and Human Services (HHS) Secretary Xavier Becerra on Wednesday, the senators made a dual request: first, that the attorney general work independently to remove cannabis from the Controlled Substances Act (CSA) and second, that the president issue mass clemency for people with non-violent federal marijuana convictions.

Sens. Elizabeth Warren (D-MA), Bernie Sanders (I-VT), Cory Booker (D-NJ), Ron Wyden (D-OR), Ed Markey (D-MA) and Kirsten Gillibrand (D-NY) signed the new letter. The senators said that DOJ took six months to respond to a previous October 2021 letter urging the attorney general to use his authority to unilaterally start the process of federally descheduling marijuana. The “half-page response” was “extraordinarily disappointing,” they wrote.

A reminder that cannabis clemency is ultimately up to the Prez

Marijuana Moment has this lengthy new article under the headline "It’s Up To Biden To Direct Mass Clemency For Marijuana Cases, U.S. Pardon Attorney Says." Of course, in every administration and for every type of federal defendant, grants of clemency are "up to" the President. Nevertheless, this piece serves as a useful review of the state of debate over clemency for federal marijuana offenders, and here are excerpts (with lots of links from the original):

It’s up to President Joe Biden to initiate a process of granting mass clemency for people with non-violent federal cannabis convictions, the recently appointed U.S. pardon attorney told Marijuana Moment on Thursday.

As a general practice, the Justice Department’s pardon office looks as petitions for relief on an individualized basis and then makes recommendations to the president, Pardon Attorney Elizabeth Oyer said during an event hosted by the Justice Roundtable, a coalition of criminal justice reform organizations.

That said, a categorical pardon for people with federal cannabis records is still possible if the president takes action, the former public defender, who was appointed by Attorney General Merrick Garland in April, said. “Right now, the Office of the Pardon Attorney reviews every individual clemency application on an individualized basis — and that could change at the direction of the president,” Oyer said in response to a question from Marijuana Moment about the feasibility of Biden issuing mass pardons and commutations for marijuana convictions in the way Presidents Gerald Ford and Jimmy Carter did for people who avoided the draft during the Vietnam War. “Currently, what we do is we look at cases individually for the most part and not categorically,” Oyer said. But she left the door open that the president could issue a directive otherwise if he wanted to....

The pardon attorney said that when her office makes clemency recommendations, it does take into account “broad categories of policy objectives or criminal justice reform goals or racial justice objectives,” and marijuana cases represent an example of such a category because they have “some sort of cohesive common characteristics.”

“So we’re absolutely taking into consideration those categories and those policy objectives and those racial equity objectives, but we don’t look at cases in a batch without individualized review,” Oyer said. “We do look at every single case individually.”

At the event, the pardon attorney also offered advice to advocates on filing clemency petition applications and addressed the “backlog” of cases under review.

Late last year, there were signals that the administration might be moving toward clemency for certain people with federal convictions. The federal Bureau of Prisons (BOP) started asking eligible individuals to get the process started by filing out clemency applications.

Biden has received about a dozen letters from lawmakers, advocates, celebrities and people impacted by criminalization to do something about the people who remain behind federal bars over cannabis. After months of inaction, some members of Congress like Sen. Elizabeth Warren (D-MA) have even sent follow-up letters demanding a response.

Among those pushing for reform is Weldon Angelos, who received a president pardon from Trump in 2020 and has since become a key advocate for criminal justice reform who has worked with both the Trump and Biden administration of furthering relief.  “It’s up to President Biden to honor his campaign promise and instruct those involved in the clemency process to prioritize cannabis cases,” Angelos told Marijuana Moment on Thursday. “There is no other group more deserving of relief than those who are incarcerated for something that society no longer considers criminal.”...

At a House Judiciary Committee oversight hearing last month, Chairman Jerrold Nadler (D-NY) and other Democratic lawmakers stressed the need for reforming the federal clemency process, calling for applications to be streamlined to make it easier for people with non-violent federal drug convictions to get relief.

Late last year, a coalition of congressional lawmakers introduced the Fair and Independent Experts in Clemency (FIX Clemency) Act, a bill that would take clemency review away from the Justice Department and instead establish an independent board appointed by the president.

A report published by the Congressional Research Service (CRS) last year affirmed that the president has it within his power to grant mass pardons for cannabis offenses. It also said that the administration can move to federally legalize cannabis without waiting for lawmakers to act.

"United States v. Approximately 64,695 Pounds of Shark Fins: Civil Asset Forfeiture and Implications for the Cannabis Industry"

I am pleased to report that, with this posting, I am now fully caught up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  As I have said in lots of prior posts, it has been a joy to highlight great work by OSU law students and recent graduates, and the title of this post is the title of this paper authored by Alyssa Roberts who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract: 

Civil asset forfeiture, a longtime practice in U.S. law enforcement, allows the government to seize any individual property allegedly connected with a crime.  In its modern form, the stated aim has been to take down drug kingpins by forfeiting assets connected to large-scale drug rings.  However, especially in the context of cannabis, the result has been the forfeiture of billions of dollars -- much of which is never ultimately linked to criminal charges—in small increments from individual people.  Of particular concern is the starkly disproportionate effect of civil forfeiture on people of color -- most notably in Black and Latino communities.  Further, the legal landscape allows the majority of seized assets, often cash, to flow directly to police departments across the country, creating a perverse incentive for law enforcement to utilize the practice as often as possible.

This paper provides an overview of the machinations of civil forfeiture laws in the United States, as well as historical context for civil forfeiture over the past several decades.  It then discusses the interaction between cannabis and civil forfeiture, paying particular attention to industry concerns, and provides several recommendations and policy reforms.