Sentencing Law and Policy

"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.

Illinois on verge of becoming second biggest state to legalize medical marijuana

As 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.

"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.

Could marijuana use help combat type-2 diabetes and even obesity?

The question in the title of post is prompted by this press release discussing new research findings published now in The American Journal of Medicine.  Here are excerpts from the press release:

Regular marijuana use is associated with favorable indices related to diabetic control, say investigators.  They found that current marijuana users had significantly lower fasting insulin and were less likely to be insulin resistant, even after excluding patients with a diagnosis of diabetes mellitus. Their findings are reported in the current issue of The American Journal of Medicine....

A multicenter research team analyzed data obtained during the National Health and Nutrition Survey (NHANES) between 2005 and 2010.  They studied data from 4,657 patients who completed a drug use questionnaire.  Of these, 579 were current marijuana users, 1,975 had used marijuana in the past but were not current users, and 2,103 had never inhaled or ingested marijuana.  Fasting insulin and glucose were measured via blood samples following a nine hour fast, and homeostasis model assessment of insulin resistance (HOMA-IR) was calculated to evaluate insulin resistance.

Participants who reported using marijuana in the past month had lower levels of fasting insulin and HOMA-IR and higher levels of high-density lipoprotein cholesterol (HDL-C). These associations were weaker among those who reported using marijuana at least once, but not in the past thirty days, suggesting that the impact of marijuana use on insulin and insulin resistance exists during periods of recent use.  Current users had 16% lower fasting insulin levels than participants who reported never having used marijuana in their lifetimes.

Large waist circumference is linked to diabetes risk.  In the current study there were also significant associations between marijuana use and smaller waist circumferences.

“Previous epidemiologic studies have found lower prevalence rates of obesity and diabetes mellitus in marijuana users compared to people who have never used marijuana, suggesting a relationship between cannabinoids and peripheral metabolic processes, but ours is the first study to investigate the relationship between marijuana use and fasting insulin, glucose, and insulin resistance,” says lead investigator Murray A. Mittleman, MD, DrPH, of the Cardiovascular Epidemiology Research Unit at the Beth Israel Deaconess Medical Center, Boston....

Although people who smoke marijuana have higher average caloric intake levels than non-users, marijuana use has been associated with lower body-mass index (BMI) in two previous surveys.  “The mechanisms underlying this paradox have not been determined and the impact of regular marijuana use on insulin resistance and cardiometabolic risk factors remains unknown,” says coauthor Hannah Buettner.

The investigators acknowledge that data on marijuana use were self-reported and may be subject to underestimation or denial of illicit drug use.  However, they point out, underestimation of drug use would likely yield results biased toward observing no association.

Editor-in-Chief Joseph S. Alpert, MD, Professor of Medicine at the University of Arizona College of Medicine, Tucson, comments, “These are indeed remarkable observations that are supported, as the authors note, by basic science experiments that came to similar conclusions.

“We desperately need a great deal more basic and clinical research into the short- and long-term effects of marijuana in a variety of clinical settings such as cancer, diabetes, and frailty of the elderly,” continues Alpert.  “I would like to call on the NIH and the DEA to collaborate in developing policies to implement solid scientific investigations that would lead to information assisting physicians in the proper use and prescription of THC in its synthetic or herbal form.”

I guess this research could mean a whole bunch of fat guys might be now able to reasonably claim a medical need for marijuana.  (And given that New Jersey is one of the states which has legalized medical marijuana, I wonder if Gov Chris Christie now wishes he had heard of this research before he had his recent lap-band surgery.)

Illinois Lieutenant Governor announces support for state medical marijuana bill

As reported in this AP article from Illinois, "Lt. Gov. Sheila Simon said she is in favor of a bill allowing the medical use of marijuana, explaining Sunday that testimony from seriously ill veterans and other patients helped change her mind."  Here is more:

"As a former prosecutor my first reaction was, 'I'm not interesting in changing our laws on medical marijuana,'" she told The Associated Press in an interview Sunday. But she said that after hearing from patients and reading up on the bill, she's convinced the regulations are strict enough.

Backers of the measure, which has cleared the Illinois House and awaits a Senate vote, have said the same thing. The plan, touted as the strictest in the nation among states that have legalized medical marijuana, would authorize physicians to prescribe marijuana to patients with whom they have an existing relationship and who are living with at least one of more than 30 medical conditions, including cancer.

The proposal creates a framework for a pilot program that includes requiring patients and caregivers to undergo background checks. It also sets a 2.5-ounce limit per patient per purchase and sets out state-regulated dispensaries.

Supporters say marijuana can relieve continual pain without the detrimental side effects of prescription drugs. But opponents say the program could encourage recreational use, especially among teenagers.

The Illinois Association of Chiefs of Police and the Illinois Sheriffs' Association are opposed to the measure, saying there's no sure way to figure out whether a motorist is driving under the influence of marijuana.

But Simon told the AP the bill is strict enough to prevent misuse. "It does a good job of both getting medical marijuana to people who need and keeping it away from those who don't," she said.

Simon is weighing a run for another statewide office instead of seeking another term as lieutenant governor. The Carbondale Democrat declined Sunday to say which office she will run for, saying she will wait to see how other shape up.

Simon is likely choosing between Illinois' attorney general, comptroller or treasurer. In recent months, Simon has played up her law-related background and accomplishments including as a pro bono lawyer and prosecutor.

I find this story notable not merely because it likely increases the chances of Illinois becoming the 20th state to legalize medical marijuana, but also because it suggests that a shrewd and successful state politician apparently sees support for marijuana reform as a potential political selling point rather than a liability.

Recent related post:

• Illinois moves closer to becoming 20th state to legalize medical marijuana

"Marijuana taxes as a cash cow? Think again"

The title of this post is the headline of this interesting new CNN article, which gets started this way:

Taxing pot could raise hundreds of millions of dollars but still not be the moneymaker states were hoping for. Colorado and Washington State are launching their legal recreational marijuana industries, and both are coming to terms with scaled back expectations.

Washington had projected up to $450 million in annual tax revenue, but the state's new pot consultant figures it could be little more than half that.  In Colorado, the Colorado Futures Center think tank forecasts $130 million in taxes but thinks that won't even cover the cost of regulating the new industry.

Still, these forecasts are rough guesses.  They're based on estimates of drug usage and marijuana prices, both of which are difficult to measure because most of the cannabis industry is underground.

Another problem will be tax collection, especially because it's an all-cash industry. Banks and credit card companies won't service pot businesses while cannabis is still deemed illegal at the federal level.  To address that problem, Washington regulators hope to monitor every gram that's grown, moved and sold.

"We're going to look at some sort of traceability system that's going to track the plant from the plant to the sale," said Pat Kohler, a director at the state's Liquor Control Board. "This is definitely a challenge, a long with many other challenges."

At least one private company, MJ Freeway in Colorado, already does so-called "seed-to-sale" tracking.  Still, CEO Amy Poinsett warns that the all-cash nature of the industry encourages wrongdoing, like laundering money.  "There's quite a temptation to just slip $500 into your pocket," Poinsett said, noting it's a shame because "this is one of the only industries where people are saying, 'Please regulate me. Please tax me.'"

In Colorado, anti-pot politicians are threatening to roll back legalization if voters don't approve higher taxes. There's a proposal to send the question to voters later this fall.

Taxes are already high in Washington.  The law approved by its voters last year includes a 25% sales tax at three different stages: when it's sold from grower to processor, processor to retailer, and retailer to customer.  That will add a few dollars to every store purchase, pushing the price of a gram from its current average of $10 closer to $15.

With tax rates fixed in Washington, raising more revenue would have to come from selling more weed.  To accomplish that, regulators could potentially hand out more licenses and lessen restrictions on growers and sellers.  But that conflicts with one of the state's primary concerns: carefully controlling the price of marijuana.

Illinois moves closer to becoming 20th state to legalize medical marijuana

As reported in this article, headlined "Medical marijuana bill clears Illinois Senate committee," a very big and significant state has now moved one step closer to joining the ranks of state's legalizing marijuana for some purposes. Here are the basics:

A key panel of Senate lawmakers advanced legislation Wednesday that would allow patients with certain illnesses to use marijuana to ease their symptoms. The measure was approved on a 10-5 vote by the Senate Executive Committee despite concerns raised by law enforcement officials that the bill would not prevent medical marijuana card holders from driving while under the influence.

The proposal has already passed the House. Gov. Pat Quinn has said he is "open minded" to the legislation but must give the matter further review.

Under the bill, a four year pilot program would be established to allow doctors to prescribe patients no more than 2.5 ounces of marijuana over two weeks. Patients would have to buy from one of 60 dispensing centers across the state and could not grow their own.

Sponsoring Sen. Bill Haine, D-Alton, said the rules were the toughest in the nation. A former State's Attorney, Haine promised the bill is "not an opening to legalization" of recreational pot use. Opponents said they acknowledged the relief marijuana could provide but questioned unintended consequences.

California Supreme Court decides localities can ban storefront marijuana shops

As reported in this new AP article, "local governments in California's have legal authority to ban storefront pot shops within their borders, California's highest court ruled on Monday in an opinion likely to further diminish the state's once-robust medical marijuana industry." Here is more about the ruling and the context via the AP:

Nearly 17 years after voters in the state legalized medical marijuana, the court ruled unanimously in a legal challenge to a ban the city of Riverside enacted in 2010.

The advocacy group Americans for Safe Access estimates that another 200 jurisdictions statewide have similar prohibitions on retail pot sales. Many were enacted after the number of retail medical marijuana outlets boomed in Southern California after a 2009 memo from the U.S. Justice Department said prosecuting pot sales would be a low priority.

However, the rush to outlaw pot shops has slowed in the 21 months since the four federal prosecutors in California launched a coordinated crackdown on dispensaries by threatening to seize the property of landlords who lease space to the shops. Hundreds of dispensary operators have since been evicted or closed voluntarily.

Marijuana advocates have argued that allowing local government to bar dispensaries thwarts the intent of the state's medical marijuana law - the nation's first - to make the drug accessible to residents with doctor's recommendations to use it.

The ruling came in the case filed after Riverside city lawmakers used zoning powers to declare storefront pot shops as public nuisances and ban the operations in 2010. The Inland Empire Patient's Health and Wellness Center, part of the explosion of retail medical marijuana outlets, sued to stop the city from shutting it down. A number of counties and cities were awaiting the Supreme Court ruling before moving forward with bans of their own.

The 38-page majority opinion from the California Supreme Court, as well as a three-page concurrence by Justice Liu, can be found at this link.

Could pets possess the key to progressive pot policies?

The seemingly silly question in the title of this post is prompted by this seemingly silly new article headlined "Pot for pets? Vet offers unorthodox marijuana treatment for pups in pain." Here is how the article gets started:

With medical marijuana legalized in California and several other states, one veterinarian is asking why a puff can't help ailing pooches.

Dr. Doug Kramer, who runs the Vet Guru animal center in Chatsworth, outside Los Angeles, believes that the active ingredient in pot, THC, could be the key to helping Fido feel better. 

He said that was the case in treating his own dog, Nikita, saying the marijuana regimen increased her "quality of life." Speaking with Vice magazine last month, Kramer said that a friend had first introduced the idea to him, saying that she used marijuana on her dog when other traditional medications were not working.  

When his own Husky, Nikita, was diagnosed with terminal cancer, Dr. Kramer knew he had nothing to lose in the battle to help his pet deal with the pain.  "When it became clear that she was nearing the end, that's when she had nothing to lose, as long as it didn't hurt her," he told the magazine.

According to Dogster.com, Kramer is the first vet in the country to offer pot as a treatment for canine pain.... And as long as the movement garners enough support, even animal rights' groups could get behind it.

Ingrid Newkirk, the president for People for the Ethical Treatment of Animals (PETA), told ABCNews.com that within the right circumstances, THC could help.  "Our position is that anything that can help animals — if it's truly, properly administered in the right amount (and) can relieve a dog's pain — then they should be given the same consideration that humans in pain are given," she said.

"Proposals would legalize marijuana in Ohio"

The title of this post is the headline of this article that caught my eye this morning in my own local paper.  Here are the basics of the story:

As poll numbers show Ohioans are growing increasingly comfortable with the idea of marijuana use, a Youngstown Democrat wants to give people the chance to make the drug fully legal in Ohio.

Rep. Robert F. Hagan has made a few attempts over the years to persuade his colleagues to allow for the use of medical marijuana in Ohio, and each effort has died a quiet death. A spokesman for Speaker William G. Batchelder, R-Medina, declined to comment on the pair of proposals Hagan introduced yesterday.

One is a bill that would allow patients with certain chronic conditions such as cancer or sickle-cell anemia to use marijuana for treatment.  Eighteen other states have approved similar measures. “In addition to the studies that show marijuana to be a valuable treatment option for chronic pain, nausea and seizure disorders, I have heard countless stories of how cannabis has made a difference in the lives of people who are sick or dying,” Hagan said.

His other proposal, modeled after an amendment recently passed in Colorado, would ask voters to approve allowing people 21 or older to purchase and use marijuana.  The drug could be sold only by state-licensed establishments and would be subject to a 15 percent excise tax.  “With billions upon billions spent on the war on drugs with little progress to show for it, it is time for more-sensible drug policy in this country,” Hagan said, arguing that the revenue could help restore cuts to education and local governments.

It takes a three-fifths vote for the legislature to put an issue on the ballot.  A recent Saperstein Associates poll of more than 1,000 Ohioans for The Dispatch found that legalizing medical marijuana was overwhelmingly favored, 63 percent to 37 percent, but making pot completely legal was opposed by a 21-point margin.  Martin D. Saperstein, head of the Columbus polling firm, noted that surveys in other states are finding growing acceptance of legalizing marijuana, especially if it would be regulated and taxed.

As I will be blogging about in the coming months, in the Fall I will be teaching a seminar at my law school titled "Marijuana Law, Policy and Reform."  Because Ohio is still a fairly conservative state socially, I doubt talk of marijuana reforms will be much more than talk over the next few years. But I am pleased to see the talk getting started, and it will be especially interesting to watch here whether and how public opinion may change as more and more states move forward with marijuana reform experiments.

A big day and big new realities for criminal justice in Maryland

As reported in this Washington Post article, headlined "O’Malley to sign death penalty repeal and scores of other bills today," two big national criminal justice reform stories are finding expression in one day of bill signing in Maryland. Here are the basics:

Maryland Gov. Martin O’Malley plans to sign more than 250 bills on Thursday, including legislation to repeal the death penalty, allow undocumented immigrants to get driver’s licenses and legalize medical marijuana....

The bills were among those passed in an extraordinarily busy 90-day legislative session that ended last month. A final batch of bills is scheduled to be signed May 16.

With the governor’s signature Thursday, Maryland will become the sixth state in as many years to end capital punishment. Under the legislation, which O’Malley championed, death sentences would be replaced with life in prison without the possibility of parole.

The Catholic Church, which advocated for repeal, is planning to celebrate the signing by lighting up the Baltimore Basilica overnight. The landmark is the first Catholic cathedral in the United States.

MDPetitions, com, a conservative group, is expected to announce soon whether it will launch a petition drive to force a statewide vote on the death penalty repeal. If the group were to collect enough signatures, the law would be put on hold pending the outcome of a November 2014 referendum.

The legislation legalizing medical marijuana limits distribution to academic medical centers, which will be required to monitor patients and publish their findings.

Legislative analysts say it is unlikely that dispensing of the drug would begin before 2016. It is also unclear how many institutions might choose to participate. Two of the state’s most prominent — the University of Maryland Medical System and Johns Hopkins University — have been reluctant to get involved.

But supporters of the measure have hailed it as a significant step toward a compassionate treatment option for people with such illnesses as cancer and multiple sclerosis. Eighteen states and the District have enacted similar laws.

"D.C.’s Race Disparity in Marijuana Charges Is Getting Worse"

The title of this post is the headline of this notable recent commentary by Rend Smith appearing in Washington's City Paper.  Here are excerpts (with links from the original):

[D]ozens of marijuana activists converged on the National Mall to celebrate 4/20 and push for the drug's legalization.  If photos and videos are any indication, most of the attendees were white.  As a black man, I find their efforts laudable and hearteningly altruistic. D.C.'s campaign against marijuana is racist. If it wasn't, District marijuana enforcement would look a lot less abominable.

In 2010, I wrote about how Jon Gettman, a public policy professor at Shenandoah University, pored through the city's 2007 marijuana arrest records to discover the District had arrested more pot offenders per capita than any other jurisdiction in the country. Gettman also found that the overwhelming majority of pot miscreants the city went after that year — 91 percent — was black.

... In 2007, a black person was eight times more likely to be arrested for a District marijuana offense than a white person, even though researchers have exposed what any college pot dealer can tell you from the comfort of his Barcalounger: Members of both racial groups consume cannabis at nearly equal rates.

D.C.'s dope divide is just as striking when you zoom out.  According to arrest numbers obtained from the Metropolitan Police Department and crunched by a statistician, between 2005 and 2011, D.C. cops filed 30,126 marijuana offense charges.  A staggering number of those — 27,560, or 91 percent — were filed against African-Americans. Only 2,097 were filed against whites.

Blame-the-victim folklore contends that pot-arrest asymmetries, which show up in various cities around the country, are about blacks smoking outside and getting their pot on street corners.  Recent studies contradict that.  And if D.C.'s shameful pot disparity was about anything but racial bias, we'd see it narrowing.

Instead, though the number of black and white pot charges filed fluctuated from year to year, reefer charges filed against blacks rose 6 percent and declined 10 percent for whites between 2005 and 2011.

Over the last decade, the federal city's black population has wavered as its white population shot up.  If municipal pot arrests were impartial, that should have equaled more white potheads learning what the inside of a squad car looked like as arrests of black potheads became scarcer.  Latinos, moving into the city in steady if not overwhelming numbers, for instance, saw their pot arrests rise 40 percent between 2005 and 2011, from 93 pot charges to 153.

Also, at a time when weed has become another chic amenity, there's a good chance that the city's affluent whites have most of D.C.'s stash. Last year, Washingtonian ran a gleeful article about the massive amount of weed rambling through D.C.'s elite neighborhoods courtesy of drug-dealing stroller moms and tony pot-delivery services....

The only politician explicitly working to address the dope divide is longshot at-large D.C. Council candidate Paul Zukerberg, who's made marijuana decriminalization part of his platform.  He attributes the disparity to cops using stop-and-frisk powers on young black males. "In D.C., we’re giving young people twice as many marijuana arrests as high school diplomas," he writes on his website.

Other D.C. politicians I contacted, like Mayor Vince Gray, wouldn't comment on the matter or didn't return messages.  But when I mentioned the dope divide to Police Chief Cathy Lanier (who told the Washington Post she’d tried weed as teen) during an email exchange last year, the top cop seemed concerned.  “Broad statement,” she wrote. “Mixed feelings on enforcement here...”  When I tried to get Lanier to say more, she referred me to her spokesperson, who told me that MPD doesn't insert itself into politics.

Potent preview of pot policy prospects, problems and possibilities

With apologies for the forced illeteration in the headline of this post, I was inspired by this effective new USA Today column by Beau Kilmer headlined "7 key questions on marijuana legalization: As more states consider the move, they will face some new and tricky issues." The start of the piece and the headings highlighted below perhaps provide an explanation:

Believe me, I've heard all the pot jokes, and some of them are true.  Public support for legalizing marijuana use is at an all-time high. Some state-level marijuana laws are going up in smoke.  And yes, Washington and Colorado are embarking on a historic joint venture.

Puns aside, discussions about marijuana legalization are getting serious.  In November, voters in Colorado and Washington made the unprecedented decision to allow commercial production, distribution and possession of marijuana for nonmedical purposes.  Not even the Netherlands goes that far.

Policymakers in both states are confronting some new and tricky issues that have never been addressed.  For them, and for anyone else thinking about changing their pot laws, here are seven key decision areas that will shape the costs and benefits of marijuana legalization:

1. Production.  Where will legal pot be grown -- outdoors on commercial farms, inside in confined growing spaces, or somewhere in between?...

2. Profit motive.  If there is a commercial pot industry, businesses will have strong incentives to create and maintain the heavy users who use most of the pot...

3. Promotion.  Will states try to limit or counter advertisements in the communities and stores that sell marijuana?...

4. Prevention.  If pot is legal for adults, how will school and community prevention programs adapt their messages to prevent kids from using?...

5. Potency.  Marijuana potency is usually measured by its tetrahydrocannabinol content, or THC -- the chemical compound largely responsible for creating the "high" from pot, as well as increasing the risk of panic attacks....

6. Price.  With marijuana, like any other commodity, price will influence consumption and revenues....

7. Permanency.  The first jurisdictions to legalize pot will probably suffer growing pains and want to make changes later on....

"Harvard Law School Offers 'Tax Planning For Marijuana Dealers' --- No Joke."

The title of this post is the headline of this new Forbes commentary which discusses a presentation of this notable paper by Benjamin Leff available via SSRN.  Here is the context for the article and why a new Forbes piece stressed its affiliation with President Obama's alma mater:

Perhaps Harvard’s Board of Trustees will get wind of it and get upset. But the ire should be directed at tax rules that need fixing.  Now that we have legalized medical marijuana in 18 states and the District of Columbia can these businesses be run like businesses? Not really.  Massachusetts was the most recent entrant, and its marijuana businesses, like those in all the other states, face legal and tax problems....

Why?  Because even legal dispensaries are drug traffickers to the feds.  Section 280E of the tax code denies them tax deductions, even for legitimate business costs.  Of all the federal enforcement efforts, taxes hurt most.  “The federal tax situation is the biggest threat to businesses and could push the entire industry underground,” the leading trade publication for the marijuana industry reports.

One answer is for dispensaries to deduct other expenses distinct from dispensing marijuana. If a dispensary sells marijuana and is in the separate business of care-giving, the care-giving expenses are deductible....

Another idea was presented April 24 at Harvard by Professor Benjamin Leff of American University’s Law School.  Professor Leff’s paper carried an unvarnished title: Tax Planning for Marijuana Dealers.  It was part of Harvard’s Tax Policy Seminar hosted by Harvard Prof. Stephen Shay.  Mr. Leff correctly pointed out the 280E Catch 22 and came up with another end run.

Marijuana sellers could operate as nonprofit social welfare organizations, he suggested. [See Leff's February Slate piece, Growing the Business: How Legal Marijuana Sellers Can Beat a Draconian Tax]. That way Section 280E shouldn’t apply.  A social welfare organization must promote the common good and general welfare of people in its neighborhood or community.  Operating businesses in distressed neighborhoods to provide jobs and job-training for residents?  That could fit a dispensary nicely.

You don’t need a Harvard education to see that there’s something wrong with this picture. Meanwhile, Congressmen Jared Polis (D-CO) and Earl Blumenauer (D-OR) have introduced a bill to end the federal prohibition on marijuana and allow it to be taxed.  This legislation would remove marijuana from the Controlled Substances Act.

That way growers, sellers and users could no longer fear violating federal law.  Their Marijuana Tax Equity Act would also impose an excise tax on cannabis sales and an annual occupational tax on workers dealing in the growing field of legal marijuana.  Whatever happens, it’s at least good that someone is paying attention to this mess.

States seek to find right tax formula for newly legal recreational marijuana

This notable New York Times piece, headlined ""Colorado Ponders the Economics of a Marijuana Tax," highlights the challenges of fuguring out the best state tax structure and rates for legalized marijuana. Here are excerpts:

If marijuana is legalized and properly regulated, its proponents have long said, it could generate millions of dollars in state tax revenue.  But how the drug should be taxed has proved to be a thorny question.

In Colorado, where voters approved a measure in November legalizing small amounts of marijuana for recreational use, officials have been grappling with this issue for months as the state works to forge a cohesive regulatory code.

This week, legislators here will consider excise and sales taxes on marijuana of up to 30 percent combined.  The proposal emerged from a task force of health officials, representatives of the state’s rapidly developing marijuana industry and others that was commissioned last year to help develop rules for marijuana.

The goal, task force members and lawmakers say, is to set taxes high enough to finance the administration of new laws, but not so high that customers are driven back to the black market.

“We should see a financial benefit as a state that can help pay for enforcement and other fundamental issues,” said Christian Sederberg, a Denver lawyer on the panel whose firm helped draft Amendment 64, the measure legalizing recreational marijuana.  “The other side is that if you tax something too high, then you simply crowd out the regulated market.  We’re confident we’ll find the right balance.”

Under the proposal, the first $40 million collected from a 15 percent excise tax would be used to build public schools.  Revenue from a 15 percent sales tax imposed, in addition to the state’s 2.9 percent sales tax and any local sales tax, would be apportioned to local governments and for enforcement....

State Representative Jonathan Singer, a Democrat from Longmont and the bill’s sponsor, said finding the right tax rate was also a matter of public safety.  “The big thing is that we want to make sure we’re able to put the appropriate safeguards in place so that marijuana doesn’t end up in the hands of kids, criminals or cartels,” he said.

Not everyone is certain that a tax is a good idea.  Michael Elliott, executive director of the Medical Marijuana Industry Group here, said he feared that too heavy a tax could make it hard for any marijuana business to survive, because Colorado’s black market is so entrenched....  “Higher taxes on the legal, commercial model will prevent the transition to a legitimate market from happening and keep more people buying it illegally,” he said....

In Washington State, where voters in November passed a similar measure legalizing small amounts of marijuana for personal use, taxes will be levied in three tiers of 25 percent each on producers, processors and retailers.  Those taxes were laid out in the initiative that voters approved, and passing on the costs will result in an effective rate for consumers of 44 percent, according to the state’s Liquor Control Board, which will administer marijuana regulations....

Jeffrey Miron, an economics professor at Harvard University and a senior fellow at the Cato Institute, a libertarian group, cautioned that while both states’ approaches seemed reasonable, he doubted the taxes would create a substantial windfall.  Dr. Miron, who supports legalization, said that as long as federal marijuana laws continued to be unsettled, collecting taxes would be challenging.  Moreover, he said, there is no way to predict how many customers would continue to buy on the black market.

After Prohibition ended in 1933, states levied taxes on alcohol, in part because they were desperate for revenue after the Great Depression.  But that shift, Dr. Miron noted, was undertaken with the full support of the federal government.  “It’s easy to get a little overexcited that legalizing marijuana is going to solve the world’s budgetary problems,” Dr. Miron said.  “But the question for the tax revenue part of this will be how much the federal government allows these markets to come completely above ground.”

"The Pot Business Suffers Growing Pains"

The title of this post is the headline of this fascinating new Wall Street Journal article about justr some of the modern challenges facing the modern marijuana businessman.  Here are excerpts:

Across the country, the business of growing pot is fast becoming mainstream. Eighteen states and the District of Columbia have approved the use and production of marijuana for medicinal use, including two states, Colorado and Washington, that also allow recreational use.  That has spurred on a cottage industry of professional growers, with an estimated 2,000 to 4,000 businesses now producing the plant for legal purposes.  Total sales: $1.2 billion to $1.3 billion last year, according to the National Cannabis Industry Association.

But it turns out that trying to make a profit in this business is harder than expected. When grown and sold legally, marijuana can be an expensive proposition, with high startup costs, a host of operational headaches and state regulations that a beet farmer could never imagine. In Colorado, for example, managers must submit to background checks that include revealing tattoos. The state also requires cameras in every room that has plants....

Prices for pot, meanwhile, have plummeted, in large part because of growing competition. And bank financing is out of the question: Federal law doesn't allow these businesses, and agents sometimes raid growers even in states where it is legal.

Still, a hearty group of weed producers are coming out of the woodwork — or their basements, where they used to grow pot — to have a go at it. That includes outfits in Colorado, which hosts the first-ever High Times U.S. Cannabis Cup this weekend. The state passed a new law that next January will allow anyone 21 and older to buy marijuana from retailers, which is expected to dramatically open up a market currently limited to some 110,000 patients with prescriptions.  Indeed, the industry publication Medical Marijuana Business Daily forecasts a tripling in annual sales in the state in 2014 to at least $700 million....

A major drag on earnings for marijuana growers is the labor-intensive nature of the business.  Payroll can make up more than a third of production costs, says Jason Katz, chief operating officer of Local Product of Colorado. Managing workers is challenging too, he adds, in an industry where many learned their trade by growing clandestinely.  His company went through six growers in three years before one worked out.  "They aren't used to being part of regular society," he says.

Costs and management issues aside, the biggest shock to most marijuana growers has been pot prices.  As the industry becomes more competitive and there is more pot available, the price for a pound of high-quality weed in Denver has slid from $2,900 at the beginning of April in 2011 to $2,400 in the same period in 2012 to $2,000 this year, according to Roberto's MMJ List, a service that connects wholesale sellers and buyers.  At the height of summer demand in 2011, a pound sold for as much as $3,900.

To be sure, some experts say it is possible to do well.  Roberto Lopesino Seidita, who runs the price list and consults for the industry, says some growers are pulling in double-digit margins by focusing on price, not just quality.  They have developed ways to produce large amounts of pot cheaply, and offer it at unbeatable prices, driving hundreds of customers through the door every day. "It's run like Wal-Mart," he says.

Illegal growers, of course, have been producing and marketing large quantities of marijuana — often at a sizable profit — for decades.  Most of the pot consumed in the U.S. is grown outdoors in Mexico by low-wage laborers, with no need for lights or air conditioning, says Jonathan Caulkins, a professor at Carnegie Mellon University who studies marijuana legalization.  And street prices for pot in places where there is no legal outlet for it are generally higher than in regulated markets, Mr. Caulkins says....

As with many plants, spider mites and mildew can wipe out a marijuana crop. A single mistake in planting can also doom a harvest, or lower its quality and value....

Though rarely in Colorado, federal agents still raid growers regardless of state laws when the businesses are too close to schools or lax in other ways. Last December, President Barack Obama said his administration had "bigger fish to fry" than going after recreational users.  A spokeswoman for the U.S. Department of Justice said the agency is reviewing the new laws in Colorado and Washington state.

There are other legal headaches.  After a marijuana strain called Bio-Diesel won a quality competition in 2009, the name started appearing in dispensaries around Denver, says Ean Seeb, owner of Denver Relief, the outfit that produced the prized variety. Prices are below his, but Mr. Seeb has no way of legally challenging his competitors; the U.S. Patent and Trademark Office won't register cannabis-related products, he says.

A few recent and older related posts on the marijuana business: 

• "Medical marijuana businesses see opportunity in Mass."
• An effective primer on the federal tax issues facing state marijuana businesses
• "Marijuana dealers get slammed by taxes"
• "Buzzkill? Cash-strapped states eye pot tax"
• Could the "Walmart of Weed" in DC impact political perspectives on pot policy?

Another poll reveals majority support for marijuana legalization

As reported in this new Huffington Post piece, headlined "Marijuana Poll Finds Majority Support Legalization," another recent poll indicated that (barely) a majority of the public opinion now favors legalization and taxing of marijuana. Here are the basic details:

A clear majority of Americans say that marijuana should be made legal if it will be taxed and regulated like alcohol, even though few say they use marijuana themselves, according to a new HuffPost/YouGov poll.

According to the new survey, 51 percent of Americans say that marijuana should be "legalized, taxed, and regulated like alcohol." A much smaller percentage (6 percent) say that the drug should be legalized, but not taxed and regulated. Only 33 percent of respondents said marijuana should not be legalized at all, and 10 percent said they weren't sure.

The percentage of Americans in the new survey saying that they want to legalize marijuana is somewhat higher than on most other polls, perhaps because the question specified that marijuana could be legalized and "taxed and regulated like alcohol," while most other surveys ask if marijuana should be legal or illegal without qualifiers. But a recent Pew Research Center survey also found that a majority of Americans support legal marijuana.

In the new Huffpost/YouGov poll, a combined 70 percent of Democrats and 59 percent of independents, but only 37 percent of Republicans, said that they thought marijuana should be legalized either with or without taxes and regulations.

But most respondents to the survey, regardless of political party, said they think marijuana will eventually be legal throughout the U.S., although they disagreed on when that may happen.  Thirty-seven percent of respondents said that marijuana will be legal nationally within the next 10 years, while another 37 percent said that it will be legal eventually, but not that soon.  Only 11 percent said that marijuana will never be legal. Those who said that it will be legal either within the next 10 years or eventually include 80 percent of Democrats, 72 percent of independents, and 69 percent of Republicans.

A few recent and older related posts: 

• "Nearly three-quarters of Americans (72%) say that, in general, government efforts to enforce marijuana laws cost more than they are worth"
• "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"
• Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives
• Fascinating (distinct/similar?) commentary on marijuana policy and politics from inside the Beltway

Two big significant states perhaps on track join growing ranks legalizing medical marijuana

As I have hinted in prior posts, I think it could become a very big deal if (and when?) a majority of US states have formally legalized medical marijuana — especially if (and when?) a number of jurisdictions have also legalized recreational marijuana use and the majority of Americans become accustomed to seeing legitimate "pot shops" in their communities.  Consequently, these new stories today strike me as especially notable and significant:

• From Illinois here, "Illinois House Approves Use of Medical Marijuana"

• From New York here, "State senator: Clear majority backs legalizing medical marijuana"

• From Washington DC here, "D.C. Marijuana Poll: Majority Of Residents Support Decriminalizing, Legalizing Pot"

If it is only a matter of time before there are state-legalized marijuana sales in Chicago, Manhattan and our Nation's capitol, then I think it will only really be a matter of a little more time before marijuana is legal (or at least decriminalized) in the entire country.

"Ending Mass Incarceration: Charting a New Justice Reinvestment"

The title of this post is the title of a notable new "paper co-authored by a group of researchers, analysts, and advocates dedicated to ending mass incarceration in the U.S."  The full 36-page report is available at this link, and this webpage provides an overview of the contents.  Here are some of the basics:

Justice Strategies Director, Judith Greene, has co-authored Ending Mass Incarceration: Charting A New Justice Reinvestment, with Vanita Gupta and Kara Dansky of the American Civil Liberties Union, Malcolm Young of Northwestern University Law School's Bluhm Legal Clinic, James Austin of the JFA Institute, Eric Cadora of the Justice Mapping Center, Todd Clear of Rutgers University, Marc Mauer and Nicole Porter of The Sentencing Project, and Susan Tucker, the former Director of The After Prison Initiative at the Open Society Foundations.

The paper traces the history and examines the impact of Justice Reinvestment (JR) since its inception a decade ago to its current incarnation as a national initiative.

The primary conclusion is that while JR has served to soften the ground for criminal justice reform, it has not achieved significant reductions in the correctional populations or costs in most of the states in which it has been conducted. This is in contrast to its original intent: to reduce corrections populations and budgets and reinvest in high incarceration communities to make them safer, stronger, and more equitable.

As originally conceived, Justice Reinvestment called for the reduction of corrections populations and budgets to generate savings that would be reinvested in high incarceration communities to improve public safety, and reverse the destructive effects of mass incarceration and harsh punishment visited disproportionately upon individuals and communities of color.

As implemented through legislation in 18 states, the Justice Reinvestment Initiative has helped stabilize corrections populations and budgets, educate state legislators and public officials about the expense of correctional system, and persuade them to undertake reforms, but it runs the risk of institutionalizing mass incarceration at current levels.

"Conservatives Push Marijuana Reform in Congress"

The title of this post is the headline of this notable new piece from Rolling Stone.  Here are excerpts:

There's a new congressional push to end the federal War on Pot in the states – and it's being spearheaded by some of the most conservative members of the Republican conference.

The "Respect State Marijuana Laws Act" introduced in the House last week would immunize anyone acting legally under state marijuana laws from federal prosecution under the Controlled Substances Act.  Depending on the state, the legislation would cover both medical marijuana and recreational pot, and would protect not only the users of state-legal cannabis, but also the businesses that cultivate, process, distribute and sell marijuana in these states....

The three GOP co-sponsors are:

Rep. Dana Rohrabacher of California, who is best known to liberals as a villainous climate denier for theorizing that global warming is the result of "dinosaur flatulence."

Rep. Don Young of Alaska, the mastermind of the infamous Bridge to Nowhere, who was most recently in the news for recalling the "wetbacks" his father employed on the family farm.

And Rep. Justin Amash of Michigan, who was recently "purged" from the Republican House Budget Committee – allegedly for being too conservative – and who has repeatedly voted against toughening penalties for human trafficking.

These hardcore Republicans are joined in a ganja Gang of Six by liberal pro-pot stalwarts Reps.  Jared Polis of Colorado, Earl Blumenauer of Oregon and Steve Cohen of Tennessee.

Speaking for the group, Republican Rep. Rohrabacher said the bipartisan bill "establishes federal government respect for all states' marijuana laws" by "keeping the federal government out of the business of criminalizing marijuana activities in states that don't want it to be criminal."

Steve Fox, national political director of the Marijuana Policy Project, hailed the effort to bend federal marijuana law to the will of the governed.  "Marijuana prohibition is on its last legs because most Americans no longer support it," said Fox, adding that the new legislation offers the states'-rights crowd in the House with a chance to vote their principles:  "This legislation presents a perfect opportunity for members to embrace the notion that states should be able to devise systems for regulating marijuana without their citizens having to worry about breaking federal law."

A few recent and older related posts: 

• Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives
• Fascinating (distinct/similar?) commentary on marijuana policy and politics from inside the Beltway
• A few minutes of ganja gold social commentary from The Colbert Report
• "Nearly three-quarters of Americans (72%) say that, in general, government efforts to enforce marijuana laws cost more than they are worth"
• "Buzzkill? Cash-strapped states eye pot tax"
• AG Holder indicates federal response to state marijuana reforms coming "soon"
• Intriguing new comments from President Obama on federal pot prohibition policy
• "California inspired — and now inspired by — other states' marijuana legalization measures"
• "Marijuana poll: Californians' support for legalizing pot at record level"