Monday, August 26, 2013
Senator Leahy looking for answers from DOJ on pot policy by September 10 hearingEveryone eager to find out how the US Justice Department plans to deal with federal marijuana law and policy in the wake of various significant state reform efforts should now mark September 10, 2013 on their calendars. That's because, according to this post a The BLT, on that Tuesday three weeks from now, Senator Patrick Leahy is going to convene a hearing at which he plans to ask DOJ about its plans. Here are the details:
When it comes to marijuana laws, Senator Patrick Leahy (D-Vt.) wants to know whether the U.S. Department of Justice plans to prosecute or pass.
Nearly a year after voters in two states legalized marijuana possession, the Senate Judiciary Committee chairman once again plans to ask Justice Department officials how they will handle the conflict between state and federal marijuana laws.
Leahy has invited Attorney General Eric Holder and Deputy Attorney General James Cole to testify at a September 10 hearing about Washington and Colorado legalizing small amounts of marijuana for personal use, as well 20 states and Washington D.C. legalizing medicinal marijuana.
But Holder and the Department of Justice have given no public indication of the federal government's planned response to the state initiatives. Holder, testifying in the Senate in March, said he would reveal a policy "relatively soon." In the meantime, Colorado officials told TPM last week that they believe the delay amounts to "tacit approval" from the Justice Department to implement the marijuana laws....
Leahy has written the director of the Office of National Drug Control Policy about the issue, and questioned whether state officials who license marijuana retailers are risking prosecution for carrying out their duties.
"It is important, especially at a time of budget constraints, to determine whether it is the best use of federal resources to prosecute the personal or medicinal use of marijuana in states that have made such consumption legal," Leahy said in a written statement. "I believe that these state laws should be respected. At a minimum, there should be guidance about enforcement from the federal government."
Holder drew criticism from some medical marijuana advocates for a speech earlier this month concerning mandatory-minimum sentences, which are often in play in drug cases. Holder, in his remarks, did not get into the tension between state and federal marijuana laws.
The statement announcing Senator Leahy's plans for this hearing is available at this link from the Senator's website.
Friday, August 16, 2013
"Lawyers Debate Best Ways To Sell Marijuana -- No Joke"The title of this post is the headline of this new Forbes commentary, which gets started this way:
No joke. At the recently concluded American Bar Association Annual Meeting in San Francisco–as at most other gatherings–lawyers like to talk. They may be contentious or cooperative, but they do like to talk. Especially about something controversial, and especially about outsmarting the government.
From that viewpoint, medical marijuana is a perfect storm. And the lawyers don’t need munchies to talk about it. California is one of many states in which the medical marijuana industry – and the lawyers that represent its players – struggle for survival and legitimacy.
Prosecutors continue to take a hard line on marijuana infractions. And some lawyers in private practice are looking at the best way to make sales. Mind you, we’re talking about legal sales of medical marijuana.
It’s that old oil and water issue of federal v. state law. Many states — 21 of them now — have legalized marijuana for medical use. Several states — Washington and Colorado — have legalized it completely. Yet under federal law, marijuana is still a Schedule 1 controlled substance.
No matter how good a patient’s medical needs may be or how many doctors line up on the patient’s behalf, marijuana is still a no-no to the feds. And this is not merely academic. The enforcement of federal law is real, no matter what state law allows. Given the prevalence of medical marijuana dispensaries in California and elsewhere, this issue is unlikely to go away entirely anytime soon.
Thursday, August 15, 2013
Seeking suggestions for "must-reads" for my Marijuana Law, Policy & Reform seminar
As regular readers may recall, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this Fall semester titled "Marijuana Law, Policy & Reform." The seminar starts next week, and I am trying to finalize my (necessarily tentative) reading list for the first part of the semester. As the title of this post indicates, I am eager now to get some concrete suggestions about what others would consider to be "must-reads" for the students in this seminar.
I am very pleased to be able to utilize Controlled Substances: Crime, Regulation, and Policy, a brand-new casebook by Professor Alex Kreit, as the primary text for the seminar. Students will be exposed via big parts of this book to lots of great general readings on drug regulation and prohibtion debates, as well as lots of specific materials on medical and recreational marijuana laws and policies. In addition, I have just created this new blog, titled simply "Marijuana Law, Policy & Reform," where I plan to provide new resources and materials for student consideration (e.g., I have already linked/discussed AG Holder's speech via this post over there).
But, especially based on terrific feedback I have received via my prior posts about my new seminar, I suspect some folks may have some especially informed and/or innovative thoughts about some (student-friendly) readings that I must make sure to have my seminar students read. If so, please share those thoughts in the comments.
A few related prior posts:
- Starting a summer series on the upper-level law school canon and my marijuana seminar
- How can/should I cover drug markets — black, gray, and white — in my marijuana seminar?
- Guest blogging on "Controlled Substances: Crime, Regulation, and Policy" by Professor Alex Kreit
Wednesday, August 14, 2013
NYC Comptroller and mayoral candidate John Liu advocating marijuana legalizationThis new AP story, which provides further proof of a fast-moving, sea-change in marijuana reform and policy discussions, reports that "New York City Comptroller John Liu is proposing a historic overhaul of the city’s marijuana laws, believing that legalizing medical marijuana and allowing adults to possess an ounce of pot for recreational use would pump more than $400 million into the city’s coffers." Here is more:
I think this story is notable and significant not only because a notable NYC politician is making a public case for marijuana legalization, but also because it seems likely to get this mayoral candidate a lot more media attention in the weeks and months ahead. And if this pot legalization advocacy not only improves Liu's media hits, but also his overall standing in the mayoral pols, lots of other politician are sure to take note.
The sweeping change, which would put New York at the forefront of a growing national debate over use of the drug, calls for recreational marijuana to be regulated and taxed like alcohol and tobacco.
Liu, the city’s top financial officer who is also running for mayor, commissioned a report that finds that New York City has a $1.65 billion marijuana market. If a 20 percent excise tax and the standard 8.875 percent city sales tax is imposed on the pot sales, it would yield $400 million annually in revenue, Liu believes. Another $31 million could be saved a year in law enforcement and court costs.
“It is economically and socially just to tax it,” Liu told the Associated Press in an interview Tuesday. “We can eliminate some of the criminal nature that surrounds the drug and obtain revenue from it.”
The comptroller’s plan, which likely faces stiff opposition from state lawmakers who would have to authorize it, calls for the state to oversee private businesses selling pot. Licenses would be required, fees would be charged, and using the drug in public or while driving would be prohibited.
Liu’s team calculated that 900,000 city pot smokers spend about $2,000 a year on the drug. He is calling for the revenue surge to be used to reduce tuition at the City University of New York for city residents.
Twenty states and the District of Columbia currently permit medicinal marijuana. Two states, Washington and Colorado, last year voted to allow recreational marijuana for adults.
Officials in both states predicted that the change would be create a surge in revenue — up to $60 million annually in Colorado alone, according to supporters there. But while it is too soon to evaluate the exact economic ramifications in those states, experts do believe that the city budget would be bolstered by a similar measure.
“Now, people selling the product are doing it under the table and aren’t paying any taxes on it,” said Carl Davis, Senior Analyst at the Institute on Taxation and Economic Policy. “That would change. And, it stands to reason, people would also start legally producing it locally, so there would be economic benefits there too.”
One of the nation’s leading pro-marijuana industry groups applauded Liu’s proposal. “We recognize that marijuana is better sold behind the counter than on the streets,” said Betty Aldworth, deputy director of the National Cannabis Industry Association.
But neither Liu nor any city official has the authority to decriminalize marijuana; that can only be done by a law that passes the state legislature and is then signed by Gov. Andrew Cuomo.
Cuomo has steadfastly opposed any decriminalization efforts and is seen as unlikely to waver from that stance, particularly as he approaches a re-election campaign next year. The Republicans who share majority control of the Senate have also opposed decriminalization proposals. Neither Cuomo nor the Senate GOP leadership would comment on Liu’s proposal.
Mayor Michael Bloomberg, whose support could sway minds in Albany, has also long opposed efforts to legalize marijuana. His top spokesman declined comment on Liu’s proposal.
Liu is currently placing fifth in Democratic mayoral polls.
Thursday, August 08, 2013
"Why I changed my mind on weed"The title of this post is the headline of this lengthy new commentary by Dr. Sanjay Gupta, CNN's Chief Medical Correspondent. Here is how it gets started:
Over the last year, I have been working on a new documentary called "Weed." The title "Weed" may sound cavalier, but the content is not. I traveled around the world to interview medical leaders, experts, growers and patients. I spoke candidly to them, asking tough questions. What I found was stunning.
Long before I began this project, I had steadily reviewed the scientific literature on medical marijuana from the United States and thought it was fairly unimpressive. Reading these papers five years ago, it was hard to make a case for medicinal marijuana. I even wrote about this in a TIME magazine article, back in 2009, titled "Why I would Vote No on Pot."
Well, I am here to apologize. I apologize because I didn't look hard enough, until now. I didn't look far enough. I didn't review papers from smaller labs in other countries doing some remarkable research, and I was too dismissive of the loud chorus of legitimate patients whose symptoms improved on cannabis.
Instead, I lumped them with the high-visibility malingerers, just looking to get high. I mistakenly believed the Drug Enforcement Agency listed marijuana as a schedule 1 substance because of sound scientific proof. Surely, they must have quality reasoning as to why marijuana is in the category of the most dangerous drugs that have "no accepted medicinal use and a high potential for abuse."
They didn't have the science to support that claim, and I now know that when it comes to marijuana neither of those things are true. It doesn't have a high potential for abuse, and there are very legitimate medical applications. In fact, sometimes marijuana is the only thing that works. Take the case of Charlotte Figi, who I met in Colorado. She started having seizures soon after birth. By age 3, she was having 300 a week, despite being on seven different medications. Medical marijuana has calmed her brain, limiting her seizures to 2 or 3 per month.
I have seen more patients like Charlotte first hand, spent time with them and come to the realization that it is irresponsible not to provide the best care we can as a medical community, care that could involve marijuana.
Thursday, August 01, 2013
Domestic and international marijuana legalization making headlines
According to the news headlines, today appears to be yet another significant day for those eager to see movement toward the ending of national and international pot prohibition. Here are the stories catching my eye:
Saturday, July 27, 2013
"Big Marijuana lobby fights legalization efforts"The title of this post is the headline of this intriguing new Politico piece concerning the latest politics of pot. Here are excerpts:
Pot legalization activists are running into an unexpected and ironic opponent in their efforts to make cannabis legal: Big Marijuana.
Medical marijuana is a billion-dollar industry — legal in 18 states, including California, Nevada, Oregon and Maine — and like any entrenched business, it’s fighting to keep what it has and shut competitors out. Dispensary owners, trade associations and groups representing the industry are deeply concerned — and in some cases actively fighting — ballot initiatives and legislation that could wreck their business model.
That pits them against full legalization advocates, who have been hoping to play off wins at the ballot box last fall in Colorado and Washington state that installed among the most permissive pot laws in the world. Activists are hoping to pass full legalization measures in six more states by 2016.
From the point of view of dispensary owners, legalization laws — depending on how they’re written — can have little immediate upside and offer plenty of reasons for concern. For one, their businesses — still illegal under federal law — benefit from exclusive monopolies on the right to sell legal pot, but state measures still don’t end the risks of an FBI raid or Internal Revenue Service audit. Meanwhile, those same federal laws that prohibit growing, selling and using keeps pot prices high.
This spring, the Medical Marijuana Caregivers of Maine joined the usual coalition of anti-pot forces of active law-enforcement groups, social conservatives and public health advocates to oppose a state bill that would legalize possession of small quantities of the drug. The medical marijuana lobby argued that criminal organizations would start smuggling pot to neighboring states, and they complained that the bill’s tax plan was unworkable and unfair....
Full legalization advocates, like the National Organization for the Reform of Marijuana Laws, say it’s all about the money. “There are people who are benefiting financially and would prefer to see nothing change that,” said Erik Altieri, communications director for NORML.
“NORML believes the only way to truly ensure access for those patients who need cannabis for medical purposes is to legalize its use for all adults,” he added. “This will provide every adult safe and convenient access to quality cannabis, regardless of whether or not their state legislators think their specific condition ‘qualifies.’”
There wasn’t always a major divide in the cannabis camp. The two sides of the movement have long worked together on de-scheduling marijuana as a controlled substance and stopping federal raids on legal dispensaries.
Many owners of medical marijuana dispensaries got their start in the broader anti-drug war movement and are still on the same intellectual side of the issue — working to de-criminalize pot. “It’s like dentists and fluoride,” said Ethan Nadelmann, executive director of the Drug Policy Alliance. “People using fluoride reduces business for dentists. But nonetheless, dentists see fluoride as part of what they have to advocate for.”...
The split between the two sides of the pro-pot lobby is generally on the state level, where legislatures have been willing to take up the issue. Both sides are united in opposition to federal raids on medical marijuana dispensaries and support an overhaul of federal drug laws, but so far, Congress has shown little interest. “At the federal level, there really is no divergence of interest at this point. We have a narrower focus” said Betty Aldworth, deputy director of the National Cannabis Industry Association.
The association and Americans for Safe Access are two major national trade groups that push for strict neutrality on state-level ballot efforts. Americans for Safe Access advocates specifically for medical cannabis, while NCIA represents all marijuana retailers — recreational and medical.
In Washington state, pot dispensary operators said the new legalization law would put them out of business. Medical marijuana activists also were upset about a standard for driving under the influence, included in the 2012 ballot initiative. It proposed that police could jail them even if they weren’t high.
In Washington, Steve Sarich, executive director of the Cannabis Action Coalition, ran a vocal campaign against the ballot measure. Among his concerns: provisions in the law that allow cities to impose restrictive zoning codes on marijuana retailers, and the liquor control board’s lack of experience regulating marijuana. The initiative — called I-502 — was “designed to pass,” he said. “It was never designed to be implemented. I’m willing to bet you any amount of money you like that it won’t be implemented.”
In Colorado, opposition from the industry to the 2012 ballot measure was muted — but pot dispensaries won an important concession: the exclusive right to convert into recreational shops before anyone else can apply for a license....
“Their concerns are oftentimes valid,” Mason Tvert, said Marijuana Policy Project of Denver and who also helped run the pro-legalization campaign in 2012. “We’re taking about people who have risked their freedom and liberty and faced the threat of criminal penalties to open these businesses to meet the needs of the public.”
Sunday, June 30, 2013
"Marijuana's march toward mainstream confounds feds"The title of this post is the headline of this very lengthy new AP article, which serves as the latest sign of the (high) times. Here are excerpts:
[I]n just a few short years, public opinion has moved so dramatically toward general acceptance that even those who champion legalization are surprised at how quickly attitudes are changing and states are moving to approve the drug — for medical use and just for fun....
Richard Bonnie, a University of Virginia law professor who worked for a national commission that recommended decriminalizing marijuana in 1972, sees the public taking a big leap from prohibition to a more laissez-faire approach without full deliberation. "It’s a remarkable story historically," he says. "But as a matter of public policy, it’s a little worrisome. It’s intriguing, it’s interesting, it’s good that liberalization is occurring, but it is a little worrisome."
More than a little worrisome to those in the anti-drug movement. "We’re on this hundred-mile-an-hour freight train to legalizing a third addictive substance," says Kevin Sabet, a former drug policy adviser in the Obama administration, lumping marijuana with tobacco and alcohol....
"By Election Day 2016, we expect to see at least seven states where marijuana is legal and being regulated like alcohol," says Mason Tvert, a spokesman for the Marijuana Policy Project, a national legalization group.
Where California led the charge on medical marijuana, the next chapter in this story is being written in Colorado and Washington state. Policymakers there are struggling with all sorts of sticky issues revolving around one central question: How do you legally regulate the production, distribution, sale and use of marijuana for recreational purposes when federal law bans all of the above?
How do you tax it? What quality control standards do you set? How do you protect children while giving grown-ups the go-ahead to light up? What about driving under the influence? Can growers take business tax deductions? Who can grow pot, and how much? Where can you use it? Can cities opt out? Can workers be fired for smoking marijuana when they’re off duty? What about taking pot out of state? The list goes on.
The overarching question has big national implications. How do you do all of this without inviting the wrath of the federal government, which has been largely silent so far on how it will respond to a gaping conflict between U.S. and state law?
The Justice Department began reviewing the matter after last November’s election and repeatedly has promised to respond soon. But seven months later, states still are on their own, left to parse every passing comment from the department and President Obama....
Rep. Jared Polis, a Colorado Democrat who favors legalization, predicts Washington will take a hands-off approach, based on Obama’s comments about setting law enforcement priorities. "We would like to see that in writing," Polis says. "But we believe, given the verbal assurances of the president, that we are moving forward in Colorado and Washington in implementing the will of the voters."...
Federal agents in recent years have raided storefront dispensaries in California and Washington, seizing cash and pot. In April, the Justice Department targeted 63 dispensaries in Santa Ana, Calif., and filed three asset forfeiture lawsuits against properties housing seven pot shops. Prosecutors also sent letters to property owners and operators of 56 other marijuana dispensaries warning that they could face similar lawsuits.
University of Denver law professor Sam Kamin says if the administration doesn’t act soon to sort out the federal-state conflict, it may be too late to do much. "At some point, it becomes so prevalent and so many citizens will be engaged in it that it’s hard to recriminalize something that’s become commonplace," he says....
There’s a political calculus for the president, or any other politician, in all of this. Younger people, who tend to vote more Democratic, are more supportive of legalizing marijuana, as are people in the West, where the libertarian streak runs strong. In Colorado, for example, last November more people voted for legalized pot (55 percent) than voted for Obama (51 percent), which could help explain why the president was silent on marijuana before the election. "We’re going to get a cultural divide here pretty quickly," says Greg Strimple, a Republican pollster based in Boise, Idaho, who predicts Obama will duck the issue as long as possible.
Despite increasing public acceptance of marijuana, and growing interest in its potential therapeutic uses, politicians know there are complications that could come with commercializing an addictive substance, some of them already evident in medical marijuana states. Opponents of pot are particularly worried that legalization will result in increased adolescent use as young people’s estimations of the drug’s dangers decline....
More than 30 pot growers and distributors, going all-out to present a buttoned-down image in suits and sensible pumps rather than ponytails and weed T-shirts, spent two days on Capitol Hill in June lobbying for equal treatment under tax and banking laws and seeking an end to federal property seizures. "It’s truly unfortunate that the Justice Department can’t find a way to respect the will of the people," says Sean Luse of the 13-year-old Berkeley Patients Group in California, a multimillion-dollar pot collective whose landlord is facing the threat of property forfeiture....
As Colorado and Washington state press on, California’s experience with medical marijuana offers a window into potential pitfalls that can come with wider availability of pot. Dispensaries for medical marijuana have proliferated in the state. Regulation has been lax, leading some overwhelmed communities to complain about too-easy access from illegal storefront pot shops and related problems such as loitering and unsavory characters. That prompted cities around the state to say enough already and ban dispensaries....
So how bad, or good, is pot? There are studies that set off medical alarm bells but also studies that support the safer-than-alcohol crowd and suggest promising therapeutic uses.
J. Michael Bostwick, a psychiatrist at the Mayo Clinic, set out to sort through more than 100 sometimes conflicting studies after his teenage son became addicted to pot. In a 22-page article for Mayo Clinic Proceedings in 2012, he laid out the contradictions in U.S. policy and declared that "little about cannabis is straightforward."...
For all of the talk that smoking pot is no big deal, Bostwick says, he determined that "it was a very big deal. There were addiction issues. There were psychosis issues. But there was also this very large body of literature suggesting that it could potentially have very valuable pharmaceutical applications but the research was stymied" by federal barriers.
For a more focused and even more interesting extended tale about marijuana becoming mainstream, be sure to check out this fascinating New York Times magazine article titled "How to Invest in Dope."
Monday, June 17, 2013
If you are wondering if marijuana is the next growth industry...
here are three notable recent articles from major news sources that should be on your initial reading list:
From the AP here, "Is legal pot ready for a “Starbucks” brand? Activists say no, but a businessman tries his luck"
From Forbes here, "No Profit In Pot Start-Ups, Says Expert"
From the New York Times here, "Trying to Sell Wall Street on the Value of Marijuana"
Friday, June 14, 2013
"Records Show Nearly 500 Years In Prison Time For Medical Marijuana Offenses"The title of this post is the heading of this notable new entry on The Weed Blog, which gets started this way:
In spite of growing public support for medical marijuana, concern about overreach by the U.S. Department of Justice and other federal agencies, and cutbacks in federal spending, the U.S. government’s war on medical marijuana is raging unabated according to a survey of court records by Cal NORML.
On Tuesday, Michigan medical marijuana grower Jerry Duval, a kidney and pancreas transplant patient with severe medical problems, began serving a ten-year sentence in the same prison as the Boston bomber. Duval joins a growing list of defendants in states that allow medical marijuana who have been charged by the Department of Justice for violating federal laws prohibiting medical marijuana.
According to a survey of US court records, news stories, and case reports compiled by Cal NORML (with help from Americans for Safe Access):
• Over 335 defendants have been charged with federal crimes related to medical marijuana in states with medical marijuana laws.
• 158 defendants have received prison sentences totaling over 480 years for medical marijuana offenses. Some 50 are currently in federal prison, while more are waiting to be sentenced or surrender.
• Over 90% of the criminal cases settled to date have resulted in convictions. 10% have been dismissed. A single defendant has been acquitted. Federal law typically prohibits defendants from invoking medical marijuana in their defense.
• 153 medical marijuana cases have been brought in the 4 ¼ years of the Obama administration, nearly as many as under the 8 years of the Bush administration (163).
• Not a single pardon or clemency petition has been granted to a medical marijuana defendant by President Obama or his predecessors.
• One seriously ill defendant, Richard Flor, has died while in federal prison, and two others, Peter McWilliams and Steve McWilliams (no relation) died while being denied access to medical marijuana on bail. Other seriously ill patients who have who have been sentenced to lengthy terms include Dale Schafer, a hemophiliac currently serving 5 years along with his wife Mollie Fry, a cancer patient (pictured above); Vernon Rylee, who served nearly 5 years in a wheelchair (pictured right), and Jerry Duval.
• At least 259 defendants have been charged in California; over 31 in Montana; 6 in Oregon; 15 in Nevada; 12 in Michigan; 2 in Colorado; and 10 in Washington.
A few other recent notable posts on the same blog include the following:
- Obama Has Already Outspent Bush By $100 Million On Medical Marijuana Enforcement
- Prohibition Hurts Science According To Researchers
- Does Marijuana Make You Stupid?
Monday, June 10, 2013
"High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States"The title of this post is the title of this new paper by David Schwartz which I just noticed via SSRN. Here is the abstract:
The conflict between state marijuana legalization and the blanket federal marijuana prohibition of the Controlled Substances Act ("CSA") has created a federalism crisis in which the duties of state officials to adhere to state or federal law is unclear. Current federalism doctrine cannot even tell us whether or not a local police officer who encounters a person in state-authorized possession of marijuana must arrest the person and seize the marijuana.
The two most clearly applicable federalism doctrines -- the Tenth Amendment anti-commmandeering doctrine and the doctrine of federal preemption of state law under the Supremacy Clause -- offer only unsatisfactory answers. Anti-commandeering doctrine is incapable of telling us whether a federally imposed duty to arrest and seize the marijuana possessor is impermissible commandeering, permissible "general applicability," or permissible preemption, let alone answer the more complex federalism questions posed by state marijuana legalization. Alternatively, a strong preemption approach, while capable of producing consistent results in theory, would entail the virtual abandonment of the anti-commandeering doctrine and of judicial enforcement of federalism more generally, while at the same time violating important premises of the "political safeguards of federalism" theory.
The article argues that courts should pursue a middle path by applying a rigorous presumption against commandeering when considering the obligation of state officials to adhere to federal laws. This approach is faithful to consensus principles of federalism that should command the agreement of judges and academics on both sides of the judicial versus political safeguards of federalism debate. A presumption against commandeering, when applied to the CSA, requires that state officials be afforded broad latitude to enforce their states' legalization laws and have no compelled obligations to enforce federal law beyond a duty to refrain from active obstruction of federal officers. The extent of Congress's power to command state official compliance with the CSA can be considered if and when such an amendment to the CSA is under serious congressional consideration" something that may never occur given the current political trend.
Saturday, June 08, 2013
How can/should I cover drug markets — black, gray, and white — in my marijuana seminar?
In my first post here last week in my new summer series discussing my plans for my law school semester titled "Marijuana Law, Policy & Reform," I raised some questions about how law professors should think about covering legal history topics in courses not dedicated to legal history. I am deeply grateful for all the helpful feedback I received via this blog and elsewhere, and I am starting to slowly develop a working game plan for how I will cover and discuss Prohibition and related legal and social history during the first part of my law school seminar to be taught at OSU this coming Fall semester.
As the title of this new post highlights, today's topic on which I seek feedback concerns how I should think about covering drug markets and related economic issues in this seminar. As I mentioned when talking about how to cover legal history, I sometimes worry that teaching "poor legal history" may be worse than no legal history. Candidly, I am even more concerned about the prospect of teaching "poor economics" in my seminar — especially concerning modern drug markets, both legal and illegal.
The graphic reprinted here, despite being dated and hard-to-read, provides just a window into the range of challenging market/economic issues that surround just the topic of so-called "medical marijuana." (For the record, and as I plan to discuss at length in my seminar, I am generally suspicious of any and all uses of the term "medical marijuana" because so many concepts, both valid and not-so-valid, can be and have been rolled into this phrase.) The graphic draws some data from (biased?) reports like this one, titled "The State of the Medical Marijuana Markets," which is produced by a company trying to market its marijuana market analysis through this website titled Legal Marijuana Markets.
Specifically, one of my chief concerns here is that most, if not all, of those persons and groups likely to assemble information and analyses on modern marijuana markets are likely doing so with a specific advocacy agenda. More broadly, what necessarily defines a black or gray market is a need or desire not to be transparant about how the market operates and its various economic inputs and outputs. Indeed, public policy groups like Rand doing sustained reasearch concerning marijuana markets are quick to note that "variation in assumptions such as grams per joint and extent of underreporting can cause substantial variation in estimates of market size."
In addition, I am eager in my seminar to integrate stories about the various historic and modern market/economic realities of marijuana with the various historic and modern market/economic realities of various other licit and illicit drugs — ranging from alcohol to oxycodone to tobacco to valium. Knowing simply that the national marijuana market might reach up to $10 billion in coming years does not mean much if one does not also know, for example, that the national alcohol market may be well over $250 billion and that tobacco companies spend about $10 billion each year on advertising alone.
So, dear readers, any clear thoughts about how I can and should cover opaque drug market realities? In particular, I would be eager to get advice on essential dos and dont's: are there certain drug market dynamics I must be sure to cover and/or certain market myths or economic falacies I must be sure not to perpetuate in my marijuana seminar?
Cross-posted at PrawfsBlawg
Recent related post:
Thursday, June 06, 2013
Washington Lawyer cover story asks "Marijuana – Will It Ever Be Legal?"
A helpful reader today sent me a copy of the cover story from the June 2013 issue of the Washington Lawyer, which is the official publication of the D.C. Bar. That cover story is headlined, in full, "Marijuana – Will It Ever Be Legal?; States lead the Charge as Opinions Shifts." (I cannot yet find this story available freely on-line, but I will try to post a link once it is available.)
For regular readers of this blog or for those who closely follow marijuana reform discussions, there is not a whole lot in the article that is new. But the article does a fine job summarizing all the significant legal and social developments in this arena over the last year, and it also includes some notable comments from prominent folks who are skeptical about the pace and direction of recent marijuana reforms. These passages especially caught my attention, in part because I am always looking out for the strongest arguments being made against on-going reform efforts:
I find these comments especially interesting because it reveals that even a prominent and long-time warrior in the war on drugs like Edward Jurith is now willing to concede that "there is general consensus that [marijuana] may be 'safer' than alcohol or tobacco."
[Edward Jurith, a professor at American University Washington College of Law and senior counsel at the White House Office of National Drug Control Policy, has] concerns about the safety of marijuana use, saying the average potency of marijuana seized and tested by federal authorities between 1998 and 2008 has more than doubled. "I think what's been lost in a lot of this debate is the health consequences of marijuana. This is not a safe drug. Looking at the science, I think there is general consensus that while it may be 'safer' than alcohol or tobacco, that kind of a moral relativity argument doesn't make any sense. This is a drug that has some serious health ramifications, and I think that needs to be factored into this discussion more seriously than it has up to now," he says.
"If you look at the history of drug control, particularly with cocaine, there was a real belief that it was a safe drug to use. Half a decade later we wake up with a massive cocaine problem in our country that we're finally getting out of. I'm not arguing for harsh criminal sanctions, I don't think they have worked particularly well, but I think this requires a much more sophisticated and enlightened approach rather than just making the thing available and let's see what happens," Jurith adds.
While Washington intends to put some of the marijuana tax revenue aside for public health education and treatment, some addiction experts worry that there will not be enough money available to deal with what they think will be the inevitable increase in the number of people needing treatment.
"My opinion and the opinion of many addiction professionals is that it doesn't seem as if states are considering all of the ramifications, in terms of the cost of addiction and the threat to public health, ofthe increase in marijuana addiction," said Denise Perme, manager of the D.C. Bar Lawyer Assistance Program.
Friday, May 31, 2013
Starting a summer series on the upper-level law school canon and my marijuana seminar
As revealed by this page on The Ohio State University Moritz College of Law website, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this coming Fall semester titled "Marijuana Law, Policy & Reform." As the title of this post reveals, I hope to discuss my ideas and efforts in this arena at great length in this and other on-line spaces in the months ahead.
As I pitched my faculty to approve this new course, I came to realize that I have a focused and strong perspective concerning why I am teaching this seminar, but only a diffuse and weak perspective concerning just how I am teaching this seminar. Thus, I thought it would be a useful summer project to do a lengthy series of posts here (and as a guest-blogger at PrawfsBlawg) explaining in detail why I am so excited about this new law school course and also revealing just how deeply uncertain I am about what to cover in this new course.
Following this kick-off post, I hope to do at least a few posts each week concerning the specific topic of my in-development marijuana seminar and the broader topic of what upper-level law school classes and seminars should aspire to achieve. I expect that I will do most of my posts in this series at PrawfsBlawg; these topics are likely to be of greater interest to an audience made up mostly of law professors rather than sentencing practitioners and researchers. But my main goal throughout this series will be to encourage robust commentary and feedback regarding the criminal justice perspectives and teaching plans I hope to be able to set forth throughout this series of posts. Consequently, I will not be surprised if I end up doing a lot of cross-posting both at PrawfsBlawg and here in this series, especially when I focus on the substance rather than the style of my new class on "Marijuana Law, Policy & Reform."
Speaking of substance, I will kick off this post seeking input on whether, how and how much time I ought to consider devoting in "Marijuana Law, Policy & Reform" to the legal and social history of alcohol Prohibition. Notably, public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco. My first thought has been that there are lots of important legal and social themes from the Prohibition era that merit significant coverage in my new class before we jump into modern marijuana law and policy. In fact, my tentative plan has been to devote two or three weeks at the start of my "Marijuana Law, Policy & Reform" seminar (e.g., about 20% of class time) to coverage of the legal and social history of alcohol Prohibition.
But when I conducted a brown-bag discussion with some members of my faculty this past week, I was intrigued by feedback urging me not to "waste" too much class time on this legal history topic. A few colleagues reasonably suggested that, because I am not a legal historian, it might be worse if students were taught "poor legal history" rather than no legal history. (My half-joking retort was that if poor legal history is good enough for Justice Scalia, it ought to be good enough for law students.) Others reasonably suggested that students might be put off if my "hot topic" seminar was going to start with weeks of looking back 100 years.
Though I very much welcome feedback on the specific issue of whether, when, and how much class time I should spend discussing Prohibition, I would also love to hear thoughts more broadly about whether, when, and how much law professors who are not legal historians should focus upper-level class time on legal history. In some ways, I think this issue spotlights a core concern in broader debates over what law schools should do now in the classroom: teaching legal history does not readily help today's law students become practice-ready; but I doubt George Santayana is the only one who thinks there can be lots of long-term negative consequences from being ignorant of important historical stories and lesson.
Cross-posted at PrawfsBlawg
Wednesday, May 29, 2013
"Colorado governor signs recreational marijuana regulations into law"The title of this post is the headline of this new Reuters article, which gets started this way:
Governor John Hickenlooper on Tuesday signed into law measures to regulate the recreational use of marijuana in Colorado, including blood-level limits for motorists and setting up a voter referendum to impose a tax on the non-medical sale of cannabis.
Colorado House of Representatives Assistant Majority Leader Dan Pabon said the legislation reflected the "will of the voters" who charged lawmakers with setting up the regulatory system after approving legalization in a vote last November.
One of the bills signed by Hickenlooper calls for a referendum in November on setting a 15 percent excise tax and an additional 10 percent sales tax on marijuana sales.
Other measures included in the legislative package are setting blood limits for driving while under the influence of marijuana at 5 nanograms per milliter, and limiting purchases of marijuana to non-Colorado residents at one-quarter of an ounce.
"The laws ... signed today put the health and safety of our kids front and center," said Pabon, a Democrat. "They drive a stake into the heart of a large black market while creating a regulated, legitimate industry."
House Republican leader Mark Waller, who sponsored the driving-under-the-influence legislation, said Colorado is in "new and foreign territory" in implementing its marijuana laws and it was vital to add a public safety component. "Equipping law enforcement with the tools they need to ensure people make safe decisions behind the wheel is critical to maximizing public safety," he said.
Tuesday, May 28, 2013
"How America Learned to Stop Worrying and Love Marijuana"The title of this post is not only an homage to one of the greatest movies of all time, but also the headline of this new Time magazine piece by reporter Christopher Matthews. (Among other enjoyable aspects of starting to think about Dr. Strangelove in this context, I wonder if the good doctor might well have been better able to deal with his alien hand syndrome problems with the help of high quality medical marijuana.) Though I suspect some Americans may now still fear marijuana reform as much as they once feared "The Bomb," here are excerpts from the Time piece explaining why many have stopped worrying so much about the wicked weed:
For nearly a century, the United States has been one of the fiercest advocates and practitioners of marijuana prohibition in the world. At the height of the America’s anti-pot fervor in the 1950s and ’60s, one could even receive life imprisonment for simple possession of the drug.
But the puritanical fervor that once dominated the national discussion surrounding cannabis has been conspicuously absent of late. Earlier this month, the Colorado State legislature, by order of a November referendum, passed bills to implement the legalization and regulation of recreational marijuana use. Washington State voters also approved legalization by referendum on election day.... The Organization for American States recently suggested that marijuana legalization could be a way to cut down on drug-violence in the western hemisphere. Perhaps most important, the movement has finally found a voice on Capitol Hill, as representatives Earl Blumenauer and Jared Polis submitted legislation earlier this year that would end federal prohibition of the drug, and allow states to tax and regulate it as they see fit....
Indeed, the feeling that the further liberalization of marijuana laws is inevitable is backed up by the polling trends. According to Gallup, as recently as 2005, two-thirds of Americans opposed legalization of marijuana. Now 48% percent of the population supports it. And a similar poll from Pew puts the number even higher — at 52%. But what exactly explains this sudden change in American attitudes towards pot?
Undoubtedly, part of the reason for the increased acceptance is demographic. It might make you feel old to read this, but on Friday, both Bob Dylan and Tommy Chong celebrated birthdays, turning 72 and 74 respectively. The aging of these counterculture icons hasn’t directly changed American attitudes towards marijuana, of course, but it does underscore the fact that the vast majority of Americans living today came of age during a time when marijuana was widely in use....
And while national political leaders aren’t necessarily falling over themselves to endorse marijuana legalization, there isn’t a lot of room in the current political climate to defend it, either. The political right has done an excellent job over the past thirty years convincing the American public of the limitations of government. They have argued that even when the government has the best of intentions it can be astoundingly ineffective at achieving its stated goals, and often creates unintended and pernicious consequences to boot. This is the same argument that has led to deregulation of industry, historically low tax rates, and legislative efforts like welfare reform. It’s only logical to extend it beyond social welfare programs to something like drug policy.
And supporters of ending marijuana prohibition do indeed point to the unintended consequences of the policy as reason to legalize. According to the FBI, in 2011, 1.5 million people were arrested on drug charges, and roughly half of those were for marijuana, costing billions per year in law enforcement and court costs. And that doesn’t count the human toll on those arrested, like potential loss of work, government benefits, the right to vote, and student aid. Meanwhile, the government simply hasn’t come anywhere close to achieving the stated goal of marijuana prohibition, which is to prevent drug addiction. According to the National Survey on Drug Use and Health, since the beginning of the so-called war on drugs, the addiction rate in America has remained steady at 1.3%, despite the fact that each year state and local governments spend more and more money — over $1 trillion in total — fighting the drug war.
What’s more, the unintended consequences of marijuana prohibition do not stop at our borders. In fact, the brunt of the side effects may be being felt in places like Mexico....
We are in a political moment where social conservatism has been somewhat sidelined as a political force by the growing influence of libertarianism in the Republican party. This dynamic emphasizes the tension between liberty and morality that has been with us since the founding of our country, and at this moment liberty appears to be ascendant. But make no mistake, the puritanical impulses that once made America the leading voice in marijuana prohibition haven’t gone anywhere — and advocates of reform should know that pendulums, once set it motion, swing back again.
A few recent and older related posts:
- Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives
- "Nearly three-quarters of Americans (72%) say that, in general, government efforts to enforce marijuana laws cost more than they are worth"
- Another poll reveals majority support for marijuana legalization
- "California inspired — and now inspired by — other states' marijuana legalization measures"
- "Marijuana poll: Californians' support for legalizing pot at record level"
- "Conservatives Push Marijuana Reform in Congress"
- Fascinating (distinct/similar?) commentary on marijuana policy and politics from inside the Beltway
- "Is Marijuana Booming Among Boomers?"
- Potent preview of pot policy prospects, problems and possibilities
Thursday, May 23, 2013
Lots of notable new marijuana coverage lately via Time magazine
Providing yet another sign of the modern marijuana times, Time magazine this week has run three distinct, and distinctly interesting, stories about marijuana law, policy and reform. Here are the headlines with links:
Monday, May 20, 2013
"How to Legalize Pot"The title of this post is the headline of this notable new op-ed in today's New York Times authored by Bill Keller. Here are some excerpts from an interesting read:
The marijuana debate has entered a new stage. Today the most interesting and important question is no longer whether marijuana will be legalized — eventually, bit by bit, it will be — but how....
A few places, like the Netherlands, have had limited legalization; many jurisdictions have decriminalized personal use; and 18 states in this country have approved the drug for medical use. (Twelve others, including New York, are considering it.) But Washington and Colorado have set out to invent a whole industry from scratch and, in theory, to avoid the shortcomings of other markets in legal vices — tobacco, alcohol, gambling — that lurched into being without much forethought, and have supplied, along with much pleasure, much misery.
The biggest shadow hanging over this project is the Department of Justice. Federal law still makes felons of anyone who trades in cannabis. Despite the tolerant drift of the polls, despite evidence indicating that states with medical marijuana programs have not, as opponents feared, experienced an increase in use by teenagers, despite new moves toward legalization in Latin America, no one expects Congress to remove cannabis from the list of criminal substances any time soon.... But federal authorities have always left a lot of room for local discretion on marijuana enforcement. They could, for example, declare that they will prosecute only drug producers who grow more than a certain amount, and those who traffic across state lines. Attorney General Eric Holder, perhaps preoccupied with scandal management, has been slow to come up with enforcement guidelines that could give the states a comfort zone in which to experiment.
One practical challenge facing the legalization pioneers is how to keep the marijuana market from being swallowed by a few big profiteers — the pot equivalent of Big Tobacco, or even the actual tobacco industry — a powerful oligopoly with every incentive to turn us into a nation of stoners. There is nothing inherently evil about the profit motive, but there is evidence that pot dealers, like purveyors of alcohol, get the bulk of their profit from those who use the product to excess. “When you get a for-profit producer or distributor industry going, their incentives are to increase sales,” said Jonathan Caulkins of Carnegie Mellon, another member of the Washington consulting team. “And the vast majority of sales go to people who are daily or near-daily consumers.”
What [UCLA Professor Mark] Kleiman and his colleagues (speaking for themselves, not Washington State) imagine as the likely best model is something resembling the wine industry — a fragmented market, many producers, none dominant. This could be done by limiting the size of licensed purveyors. It would help, too, to let individuals grow a few plants at home — something Colorado’s new law permits but Washington’s does not, because polling showed Washingtonians didn’t want that.
If you read the proposal Kleiman’s team submitted to Washington State, you may be a little boggled by the complexities of turning an illicit herb into a regulated, safe, consumer-friendly business. Among the things on the to-do list: certifying labs to test for potency and contamination. (Pot can contain, among other nasty things, pesticides, molds and salmonella.) Devising rules on labeling, so users know what they’re getting. Hiring inspectors, to make sure the sellers comply. Establishing limits on advertising, because you don’t want allowing to become promoting....
And then there is the issue of drugged driving. Much about the chemistry of marijuana in human beings remains uncertain, in part because the government has not supported much research. So no one has come up with a pot version of the breathalyzer to determine quickly whether a driver is impaired. In the absence of solid research, some legalization advocates insist stoned drivers are more cautious, and thus safer. (Hands up if you want Harold and Kumar driving your taxi. Or piloting your airplane.) On this and much else, Washington and Colorado will probably be making it up as they go, waiting for science to catch up.
Sunday, May 19, 2013
Illinois on verge of becoming second biggest state to legalize medical marijuanaAs reported in this Chicago Tribune article, only a Governor's veto now stands in the way of Illinois becoming the most populous state other than California to have legalized medical marijuana. Here are the details:
The Senate today approved legislation that would allow doctors to prescribe medical marijuana to patients with serious illnesses, sending the measure to Gov. Pat Quinn. The issue pitted supporters arguing for compassion for those suffering from pain they say only cannabis can ease against opponents who contend the legislation would undermine public safety.
Sponsoring Sen. Bill Haine, D-Alton, argued the measure is one of the toughest in the nation. Haine said his bill does not reflect other states that have “sloppily” instituted medical marijuana laws. “This bill is filled with walls to keep this limited,” said Haine, a former Madison County state’s attorney.
Sen. Kyle McCarter, R-Lebanon, raised concerns about lawmakers endorsing a product that classified as a controlled substance by the federal government, arguing marijuana is a gateway drug that could lead users to harder substances....
The proposal would create a four-year trial program in which doctors could prescribe patients no more than 2.5 ounces of marijuana every two weeks. To qualify, patients must have one of 42 serious or chronic conditions -- including cancer, multiple sclerosis or HIV -- and an established relationship with a doctor.
Patients would undergo fingerprinting and a criminal background check and would be banned from using marijuana in public and around minors. Patients also could not legally grow marijuana, and they would have to buy it from one of 60 dispensing centers across Illinois. The state would license 22 growers.
The measure drew strong opposition from the Illinois Association of Chiefs of Police and the Illinois Sheriffs' Association, which sent a letter to the governor and lawmakers warning the proposal would not stop medical marijuana card holders from driving while under the influence. They suggested blood and urine testing be included in the legislation to allow police to determine whether card holders had marijuana in their system while driving....
The Senate vote was 35-21, with 30 needed to pass the bill. It goes to Quinn, who has not indicated whether he will sign it. The Democratic governor recently said he is open minded to the legislation.
Though I have not tried to precisely run the numbers, I think the legalization of medical marijuana in Illinois would means that around half of Americans would be living in states with marijuana legalized for use under certain circumstances. And, as I have suggested before, I think this fact is of potential constitutional significance.
Friday, May 17, 2013
"Is Marijuana Booming Among Boomers?"The title of this post is the headline of this lengthy new Forbes article which gets started this way:
Like many of her peers, Zoe Helene, 48, smoked marijuana in her early 20s but gave it up as her career in the digital world took off in the 1990s. Today the multidisciplinary artist and environmental activist lives in Amherst, Mass., and is building a global network of trailblazers called Cosmic Sister. Since she married an ethnobotanist in 2007, she has returned to using cannabis occasionally — “as a tool for evolving and expanding my psyche.”
Helene is among a group of women that Marie Claire magazine has dubbed “Stiletto Stoners — card-carrying, type-A workaholics who just happen to prefer kicking back with a blunt instead of a bottle.” She’s also one of a growing legion of boomers who are returning to marijuana now that the stigma and judgment (and laws) surrounding its use are becoming more lax.
Massachusetts, which decriminalized pot in 2008, became the 18th state to legalize medical marijuana, last year. In the 2012 presidential election, which New York Times columnist Timothy Egan called America’s “cannabis spring,” Colorado and Washington voters legalized recreational use, launching weed into the national spotlight and spawning a flurry of marijuana initiatives. Since then, decriminalization bills have been introduced in 10 additional states, and legalization is being considered in 11 states and Puerto Rico.
This trend, along with decriminalization in cities like Chicago, Boston, New York and Denver, has removed a major “barrier to entry” for law-abiding citizens who would use cannabis as medicine or a substitute for alcohol. No longer worried about breaking the law or having their kids discovering their “dirty little secret,” many boomers are returning to a substance they once enjoyed. Others, who never stopped smoking, are coming out of the closet (or the garage) about their use.