Conflicting Federal Laws beg to differ on Marijuana enforcement

It Is interesting to follow the news on Marijuana/Cannabis/Hemp these days.  It seems that the law enforcement agencies have a really hard time deciphering which laws they can enforce and which ones to “not” enforce.

The Federal Government has previously issued  “policy guidelines” to help “guide” the differing agencies through the process of elimination but they still seem to be confused.

To refresh their memory I am inserting the link to that information HERE. 

Prior to that the “Guidance Regarding Marijuana Enforcement” was issued on August 29, 2013 to help ease enforcement issues as well.  The link to that information is HERE as well.

It is documented fact that they did “raid” an Indian Reservation yesterday where the Federal Government seized 12,000 Marijuana Plants along with some Marijuana packaged for sale.

 

A surveillance photo taken June 19 from the northbound shoulder of Highway 395 in rural Modoc County shows part of a large marijuana manufacturing site on the XL Ranch, which is American Indian land belonging to the Pit River Tribe. The white pickup truck belongs to a private security firm contracted to guard the site.

“By Denny Walsh

dwalsh@sacbee.com

Law enforcement officers from at least four agencies on Wednesday swooped onto American Indian land occupied by two tribes in Modoc County and seized at least 12,000 marijuana plants and more than 100 pounds of processed marijuana.

In a release announcing the raids, Benjamin Wagner, the U.S. attorney in the Sacramento-based Eastern District of California – which includes Modoc County – emphasized, “Other than contraband marijuana and items of evidentiary value, no tribal property was seized and no federal charges are pending.”

Warrants signed Tuesday by U.S. Magistrate Judge Carolyn K. Delaney authorized federal agents to search “two large-scale marijuana cultivation facilities located on federally recognized tribal lands at the Alturas Indian Rancheria and the XL Ranch in Modoc County.” The county forms the northeast corner of California, with Oregon on the north and Nevada on the east.

Read more here: http://www.sacbee.com/news/local/article26834551.html#storylink=cpy  “

While surfing the WWW for further information about this the following article was found regarding enforcement of “Federal Law”.  Published April 2, 2015 in a Press Release by Drug Policy Alliance (DPA),

“Press Release | 04/02/2015

U.S. Justice Department Says It Will Ignore Federal Law and Prosecute People for Medical Marijuana Despite Congressional Spending Ban

Congress Passed One-Year Amendment in December Prohibiting Justice Department from Undermining State Medical Marijuana Laws; Members of both Parties Sought to Stop Prosecutions and Let States Set Their Own Medical Marijuana Policies

Drug Policy Alliance Calls on President Obama to Rein in Out-of-Control Prosecutors

A spokesperson for the U.S. Department of Justice (DOJ) told the Los Angeles Times that a bi-partisan amendment passed by Congress last year prohibiting DOJ from spending any money to undermine state medical marijuana laws doesn’t prevent it from prosecuting people for medical marijuana or seizing their property. The statement comes as the agency continues to target people who are complying with their state medical marijuana law. This insubordination is occurring despite the fact that members of Congress in both parties were clear that their intent with the amendment was to protect medical marijuana patients and providers from federal prosecution and forfeiture.

Read more here:  http://www.drugpolicy.org/news/2015/04/us-justice-department-says-it-will-ignore-federal-law-and-prosecute-people-medical-mari   ”

All of this only serves to prove the theory that the only way to “make marijuana lawful” for everyone to grow and consume is to fight for the REPEAL OF THE PROHIBITION LAWS which have enslaved us for so long.

Of note, I found this article: 

“PREEMPTION UNDER THE CONTROLLED SUBSTANCES ACT  ROBERT A. MIKOS

States are conducting bold experiments with marijuana law. Since 1996,

eighteen states and the District of Columbia have legalized the drug for medical

purposes, and two of them have legalized it for recreational purposes as well.

1

These states have also promulgated a growing body of civil regulations to replace

prohibition. The regulations cover nearly every facet of the marijuana market.

Colorado, for example, has adopted more than s

eventy pages of regulations governing just the distribution of medical marijuana.”

The link to this journal article is HERE.

Moving right along, I am going to input an article written by JackieTreehorn on a Forum concerning repeal of the CSA because, well, I could not have written it better myself – so I am inserting his wisdom here:

Lawmakers, sign on now, to repeal the Controlled Substances Act of 1970 (CSA). Without this authority, the ill-conceived War On Drugs (WOD) stops in its tracks. No one has talked about the War On Drugs for a long time. It has not gone away. We still squander scarce resources on the fight against ourselves, at a time when foreign enemies are at the gate. Enough is enough, too much is too much, and more of this futile war would be the height of fiscal irresponsibility. Do now, for the War On Drugs, what the 21st Amendment did for the 18th, and with it, alcohol prohibition. Stop throwing good money after bad.
We should have learned a lesson from alcohol prohibition, namely that it doesn’t work.
Isn’t there enough blood in the streets already, without continuing to shoot ourselves in the feet? Do we really need to ruin the lives of so many of our own children, perhaps on the theory it is for their own good?
The CSA is unconstitutional. The CSA never had a constitutional amendment to enable it, like the 18th amendment enabled alcohol prohibition. The drug warriors have, so far, gotten away with an end run, subverting the lack of constitutional authority.
An authority over Interstate Commerce provides a pretext of constitutionality. Any excuse is better than none. So, how is that interstate commerce going, these days? Why would a bankrupt treasury distain to derive revenue from its number one cash crop? The anti-capitalist policy inhibits small farmers from cultivating for a taxed market, and gifts a tax-free monopoly to outlaws, some of whom may be friends of our enemies. This is not what the founders had in mind when they authorized meddling in interstate commerce. Lets bring the underground economy into the taxed economy. The Supreme Court got it wrong in Gonzales V Raich. Good on Clarence Thomas for noticing that the so-called constitutionality of the law is a mockery.   www.law.cornell.edu/supct/html/03-1454.ZD1.html
How did we get this CSA? Was there an informed debate on the floor? Did the substances ever get their day in court? What congressman then, or now, would admit to knowing a thing or two about LSD? The lawmakers have never wanted to know more than it is politically safe to be against it. Governments around the world ignore fact-checkers and even their own reports. Forgive them, Lord, they make it their business to know not what they do. Common sense tells us that personal experience deepens the understanding of issues. Personal experience is a good thing. But we herd the experienced to the hoosegow. We keep them out of jobs. The many who avoid detection must live double lives.

congressmen who passed the CSA probably don’t even get it that they deny freedom of religion to those who prefer a non-placebo as their sacrament of communion. Congress shall make no law prohibiting the free exercise of religious freedom, says the First Amendment. But they did.
Many of the prohibited substances provide access to unique mental states. You can’t say your piece, if you can’t think it up. You can’t think it up, if you are not in a receptive state of mind. Neither the Constitution, nor its amendments, enumerates a power of government to prevent access to specific states of mind. How and when did the government acquire this power, to restrict consciousness and thought? Congress shall make no law abridging freedom of speech, says the First Amendment. But they did.
What would happen if the CSA was enforced one hundred percent? What if all the civil disobedient turned in notarized confessions tomorrow? That is a double digit demographic. Even after years of spending more on prisons than on schools, the prisons don’t have that kind of sleeping capacity. Converting taxpayers into wards of the state mathematically increases the tax burden on the remainder. Higher tax burdens are not what the doctor is ordering at this time.
None of these substances are alleged to be as harmful as prison is. Granny’s justice is a saner benchmark. A kid caught with cigarettes must keep on smoking them, right then and there, until he or she has wretched. Drugs are sometimes accused of causing paranoia, but it is prohibition’s threat of loss of liberty, employment, and estate, that introduces paranoia. Apparently it is true that some of these substances do cause insanity, but the insanity is only in the minds of those who have never tried them. There shall not be cruel and unusual punishment, says the Eighth Amendment. But here it is, in the CSA.
In the 1630’s, the pilgrims wrote home glowingly that the native hemp was superior to European varieties. Now, the government pretends it has a right to prohibit farmers from the husbandry of native hemp, but it so doesn’t. Could an offender get a plea-bargain, by rolling over on someone higher up in the organization? The farmer does nothing to nature’s seed that God Himself does not do when He provides it rain, sunlight, and decomposing earth. How can it be a crime to do as God does? Is the instigator to get off scot-free, while small users are selectively prosecuted? God confesses, in Genesis 11-12, it was He who created the seed-bearing plants, on the second day. Then, He saw they were good. There you have it, the perpetrator shows no remorse about creating cannabis or mushrooms. Neither has He apologized for endowing humans with sensitive internal receptor sites which activate seductive mental effects in the presence of the scheduled molecules. Book Him, Dano.
Common Law must hold that humans are the legal owners of their own bodies. Men may dispose of their property as they please. It is none of Government’s business which substances its citizens prefer to stimulate themselves with. Men have a right to get drunk in their own homes, be it folly or otherwise. The usual caveats, against injury to others, or their estates, remain in effect.
The Declaration of Independence gets right to the point. The Pursuit Of Happiness is a self-evident, God-given, inalienable, right of man. The War On Drugs is, in reality, a war on the pursuit of happiness. Too bad the Declaration of Independence is not worth much in court.
Notwithstanding the failure of the Supreme Court to overturn the CSA, lawmakers can and should repeal the act. Lawmakers, please get to it now, in each house, without undue delay. Wake up.
Who has the guts to put America first and not prolong the tragedy?
We don’t need the CSA. The citizenry already has legal recourse for various injuries to itself and its estate, without invoking any War On Drugs. We should stop committing resources to ruin the lives of peaceful people who never injured anyone. If someone screws up at work, fire him or her for the screw-up. The Books still have plenty of laws on them, without this one.
Without the CSA, the empty prisons could conceivably be used to house the homeless. Homeland security might be able to use the choppers that won’t be needed for eradication. Maybe the negative numbers that will have to be used to bottom-line our legacy to the next generation can be less ginormous.
Cannabis has a stronger claim to the blessing of the state than do the sanctioned tobacco and alcohol. Cannabis does not have the deadly lung cancer of tobacco, nor the puking, hangover, and liver cirrhosis of alcohol. To the contrary, cannabis shows promise as an anti-tumor agent. Nor is cannabis associated with social problems like fighting and crashing cars. Cannabis-intoxication is usually too mellow for fighting, and impaired drivers typically drive within the limits of their impairment. The roads will be safer, if slower, for every driver that switches from drink to smoke. Coffee drinkers cause more serious accidents by zipping in and out of traffic and tailgating. To assure public safety on the road, cops need a kit to assess driving competence and alertness objectively. Perhaps science can develop a virtual reality simulator. Hopefully it could also detect drowsy, Alzheimer’s, and perhaps road-raging, drivers.
John McCain should recuse himself on the CSA repeal issue, due to the conflict of interest of potential competition for his family beer franchise. Both candidates have promised to end ‘failed programs’, but neither has issued a timetable, or a roadmap, for standing down on the WOD.
The debate how a crippled USA can manage ‘the two wars’ is blind. Hello, there are three, not two, wars. The War On Drugs has not let up, after 38 years of failure. Its costs are in the ballpark of the foreign wars. There is no lower-hanging, riper, or higher yielding budgetary fruit than to stop this third war, cold turkey. We are making new enemies faster than we are killing the old ones. We are losing old friends. In this national crisis of global humiliation, we should cut a little slack to those who still love the United States of America, no matter what they may be smoking. Stave off national meltdown, by repeal of the CSA, this week, if possible. TIA.
Without the War On Drugs, Americans can come together as a people in ways that are not possible with so many of our best and brightest under threat of disenfranchisement.”

The LINK to the above “Forum post” is HERE.

 

In conclusion I must reiterate what I have said before that if we want to end the war on drugs we must start by “repealing” the statutes which gave the Government and law enforcement agencies the power to enforce an unconstitutional statute to begin with.

http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf

http://www.justice.gov/sites/default/files/tribal/pages/attachments/2014/12/11/policystatementregardingmarijuanaissuesinindiancountry2.pdf

http://www.sacbee.com/news/local/article26834551.html

http://www.drugpolicy.org/news/2015/04/us-justice-department-says-it-will-ignore-federal-law-and-prosecute-people-medical-mari

http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1287&context=jhclp

http://www.ar15.com/forums/t_1_5/773950_Call_for_Repeal_of_the_Controlled_Substances_Act_of_1970.html

With Farm Bill in Rearview, Kentucky Strives to Revive Hemp Industry

August 1, 2014 By Josh Long 1 Comment

Posted in News, Cannabis, Regulatory Issues, Government, American Herbal Products Association (AHPA)

Editor’s Note:This story is the fifth part in a series of articles and video documentaries that surveys the state of the legal marijuana and hemp industries.To read the previous article on hemp and marijuana executives tied to crimes, go here.

MURRAY STATE UNIVERSITY, Kentucky—In 1994, Chris Boucher planted industrial hemp at the USDA Research Center in Imperial Valley, California. As the owner of a company that sold hemp T-shirts, wallets, backpacks and hemp seed oil, Boucher figured it would be just a few years before growing hemp in the United States was legal.

Earlier this month, Boucher was beaming while exploring a hemp field at Murray State University. 

“We’ve waited almost 20 years to this day for hemp to be legal in the United States," he declared here on a muggy-free day in July.

The trek to legalize marijuana’s cousin hemp is far from over. Earlier this year, Congress authorized the cultivation and growth of industrial hemp—but only for research purposes.

Industrial hemp hails from the same plant species (Cannabis Sativa L.) as marijuana, and federal law still classifies hemp as a Schedule I controlled substance along with such hardcore drugs as heroin, LSD and peyote. That’s in spite of the fact that hemp contains little of the psychoactive ingredient in marijuana that makes a smoker high: THC. Under this year’s Farm Bill, a plant meets the definition of “industrial hemp" if it contains no more than 0.3 percent of THC, otherwise known as delta-9 tetrahydrocannabinol.

Chris Boucher of CannaVest Corp. inspects a hemp field at Murray State University. CannaVest donated the seeds for the hemp research project.

Chris Boucher of CannaVest Corp. inspects a hemp field at Murray State University. CannaVest donated the seeds for the hemp research project.

“I always like to say there’s more opiates in a poppy seed than there is THC in a hemp seed," said Boucher, who manages US Hemp Oil, a division of CannaVest Corp., a developer and marketer of hemp-based consumer products with a focus on the compound cannabidiol (CBD). “Looking at it from that standpoint, I think logic will dictate the outcome here on the legality of industrial hemp."

Kentucky Leads Hemp Pilot Projects

Of the world’s industrialized countries, the United States is the only one that prohibits production of industrial hemp, according to the Kentucky Department of Agriculture. An estimated 55,700 metric tons of industrial hemp are produced annually around the world, with China, Russia and South Korea supplying 70 percent of a crop that is used in such products as paper, foods and nutritional supplements, the state agency said.

Kentucky, whose largest industry is agriculture, is striving to capitalize on hemp production should Congress eventually authorize it for commercial production. Section 7606 of the Farm Bill is the first step in that journey. President Obama signed the bill into law on Feb. 7, 2014, authorizing institutions of higher education or state agriculture departments to study the growth, cultivation or marketing of industrial hemp in states that permit the growth or cultivation of the crop.

Hemp has not been grown in the United States since 1957, according to Vote Hemp, a grassroots hemp advocacy organization.

"With the U.S. hemp industry estimated at over $500 million in annual retail sales and growing, a change in federal law to allow colleges and universities to grow hemp for research means that we will finally begin to regain the knowledge that unfortunately has been lost over the past 50 years," Vote Hemp president Eric Steenstra said in a statement following passage of the Farm Bill. "This is the first time in American history that industrial hemp has been legally defined by our federal government as distinct from drug varieties of cannabis."

Adam Watson, industry hemp program coordinator for the Kentucky Department of Agriculture, said his agency is leading the hemp pilot projects that the Farm Bill authorized.

“To the best of my knowledge, we have the most aggressive pilot program out there," he said.

Although a number of states have passed hemp laws, Boucher is aware of only one other state that is conducting research on hemp cultivation: Colorado, which happens to be only one of two states that has legalized marijuana for recreational use. In fact, Amendment 64—the 2012 ballot initiative that legalized recreational pot—also directed Colorado lawmakers to enact legislation governing the cultivation, processing and sale of industrial hemp.

Following passage of an industrial hemp law last year by the Colorado General Assembly, roughly 200 private growers have registered with the Colorado Department of Agriculture for research and commercial purposes, said Ron Carleton, deputy commissioner of the agency. Of the 1,555 acres registered with the state agriculture department, 1,312 acres are for commercial purposes while 243 acres are for R&D, he said.

“I think once other states start to see … the success of this test crop, then we’ll see other states start to figure out how to get their rules lined up so they can do this," said Michael McGuffin, president of the American Herbal Products Association (AHPA), commenting on the hemp plants at Murray State University. 

AHPA, CannaVest Executives Visit Hemp Field

McGuffin and a colleague from AHPA, Chief Information Analyst Merle Zimmermann, recently visited the hemp field there and met with CannaVest executives and university officials.

In Kentucky, under the oversight of the state agriculture department, a number of educational institutions are studying myriad aspects of industrial hemp from its sensitivity to herbicides (University of Kentucky) to how well it grows if the soil isn’t tilled (Murray State University). 

Murray State University has grown what is perhaps the nation’s first legal industrial hemp in generations. The plants are located on a 250-acre farm that the university’s agriculture school manages to study various crops such as corn, tobacco and soybeans.

“This hemp was planted May the 12th, the first in the State of Kentucky and we believe in the nation," said Tony Brannon, dean of the Hutson School of Agriculture, which enrolled nearly 900 students last fall and ranks among the largest non-land grant agriculture colleges in the nation. 

By mid-summer, some plants had soared to be eight-feet tall.

Kentucky is a logical place to study hemp. Some locals have parents and grandparents who grew the crop. During World War II, Kentucky was a leader in hemp production, Brannon said.

“Our farmers are very good at adapting to whatever crop is there," he said. “It’s been said that you give us a market and Kentucky farmers will be overproducing it in a couple of years … If [industrial hemp is] a legal crop and it’s of economic value to our farmers and to our area, we definitely want to play whatever role we can."

Boucher and other CannaVest executives recently flew into Nashville, Tennessee from their offices in San Diego and drove the roughly two hours northwest to see the hemp field and chat with university officials about various aspects of the project, including future testing of the hemp and equipment needed to harvest the crop.

In the meetings, university staff expressed the importance of strictly following legal protocols, especially after the U.S. Drug Enforcement Agency seized hemp seeds that were bound for the state agriculture department. The seeds were later released and distributed to a number of universities after the state agriculture department filed a lawsuit against the DEA.

At Murray State University, where harvesting is likely to occur in October, CannaVest donated more than 100 pounds of hemp seeds, which are derived from France and are known as Futura 75. Those seeds were never seized by DEA. CannaVest also donated a bag of seeds to The Growing Warriors Project, a program that helps veterans grow produce.

Boucher, CannaVest’s vice president of product development, said professional hemp seed breeders designed the seeds to grow predominantly hemp fiber and seed.

“A farmer can sell his seeds and sell his fiber on the market and make a good profit," he said.

Industrial Hemp: No ‘Get-Rich-Quick Scheme’

It could be years, though, before the United States commercializes industrial hemp, and the opportunities are difficult to fully ascertain for obvious reasons: there is no domestic market yet and hemp is still classified as a controlled substance that cannot be cultivated outside the limited scope of the Farm Bill. 

“Ultimately, it’s going to take time to determine what the ultimate marketable crop or products are going to be and it’s going to be economically driven," Watson said.

He said three to five years of data is required in order to be indicative of how a crop performs under various conditions such as dry and wet seasons and an average year.

“Producers need to have a crop reliably come off the field," Watson said. “They’ve got bills every season they’ve got to pay."

Brannon also is realistic about the opportunities for farmers.

“This is certainly no get-rich-quick scheme," he said. “We don’t know what the true economic value is going to be. But that’s where you start. That’s why we start with higher education to determine all the different variables."

CannaVest’s Boucher is stoked over the possibilities of U.S. hemp cultivation. In addition to sponsoring projects like the one at Murray State University, he described CannaVest’s longer-term plans to build mills in order to convert parts of the hemp plant into essential fatty acids and protein powder.

His vision wouldn’t be plausible had Congress not authorized hemp cultivation and research in the Farm Bill. Sen. Mitch McConnell, the Republican from Kentucky, introduced the measure in the Farm Bill conference report.

“We know this field is 100 percent legal," Boucher said, “and this field here is a historical field that … is going to kickstart the American hemp industry once and for all."

CONTINUE READING…

Earl Blumenauer Wants Obama To Drop Marijuana From Dangerous Drug List

earl blumenauer marijuana

Rep. Earl Blumenauer speaks on Capitol Hill about the tax treatment of state-legal marijuana businesses, as anti-tax advocate Grover Norquist listens. | Michael McAuliff

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Earl Blumenauer, Marijuana, Schedule I, Controlled Substances Act, Earl Blumenauer Marijuana, Eric Holder Marijuana, Marijuana, Marijuana, Marijuana Schedule I, Obama Marijuana Legalization, Politics News

WASHINGTON — With federal law enforcement officials moving to make it easier for marijuana businesses to operate in states where they are legal, one member of Congress is calling on President Barack Obama to take the next logical step and remove pot from the federal government’s list of tightly restricted drugs.

Marijuana is listed on Schedule I, along with heroin and LSD, under the Controlled Substances Act of 1970. The Drug Enforcement Administration says that such drugs have "no currently accepted medical use and a high potential for abuse" and that they are "the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence."

But Rep. Earl Blumenauer (D-Ore.), a longtime advocate for loosening restrictions on marijuana, thinks that definition clearly doesn’t apply to weed, which can now be medically prescribed in many states. He’s begun circulating a letter to the president among other members of Congress, seeking signers who will ask that marijuana be stricken from the controlled substances categories or at least moved to a less restrictive schedule.

"Schedule I recognizes no medical use, disregarding both medical evidence and the laws of nearly half of the states that have legalized medical marijuana," the letter says.

According to Blumenauer’s spokesman, the congressman had been thinking about such a request for a while, but was sparked to pursue it after Obama told The New Yorker magazine that he thought pot was less destructive than booze.

"You said that you don’t believe marijuana is any more dangerous than alcohol: a fully legalized substance, and believe it to be less dangerous ‘in terms of its impact on the individual consumer.’ This is true," says the letter. "Marijuana, however, remains listed in the federal Controlled Substances Act at Schedule I, the strictest classification, along with heroin and LSD. This is a higher listing than cocaine and methamphetamine, Schedule II substances that you gave as examples of harder drugs. This makes no sense."

Blumenauer will gain a better sense of how many of his colleagues want to sign on to the effort when Congress returns next week, but it will likely require more than a token level of support to sway Obama. In spite of the president’s comments, White House press secretary Jay Carney told reporters last week that Obama remains opposed to decriminalizing pot.

The administration has the authority to determine which substances are and are not on the controlled schedules. Congress can also pass laws to change those lists.

Here is Blumenauer’s full letter:

We were encouraged by your recent comments in your interview with David Remnick in the January 27, 2014 issue of the New Yorker, about the shifting public opinion on the legalization of marijuana. We request that you take action to help alleviate the harms to society caused by the federal Schedule I classification of marijuana.

Lives and resources are wasted on enforcing harsh, unrealistic, and unfair marijuana laws. Nearly two-thirds of a million people every year are arrested for marijuana possession. We spend billions every year enforcing marijuana laws, which disproportionately impact minorities. According to the ACLU, black Americans are nearly four times more likely than whites to be arrested for marijuana possession, despite comparable marijuana usage rates.

You said that you don’t believe marijuana is any more dangerous than alcohol: a fully legalized substance, and believe it to be less dangerous "in terms of its impact on the individual consumer." This is true. Marijuana, however, remains listed in the federal Controlled Substances Act at Schedule I, the strictest classification, along with heroin and LSD. This is a higher listing than cocaine and methamphetamine, Schedule II substances that you gave as examples of harder drugs. This makes no sense.

Classifying marijuana as Schedule I at the federal level perpetuates an unjust and irrational system. Schedule I recognizes no medical use, disregarding both medical evidence and the laws of nearly half of the states that have legalized medical marijuana. A Schedule I or II classification also means that marijuana businesses in states where adult or medical use are legal cannot deduct business expenses from their taxes or take tax credits due to Section 280E of the federal tax code.

We request that you instruct Attorney General Holder to delist or classify marijuana in a more appropriate way, at the very least eliminating it from Schedule I or II. Furthermore, one would hope that your Administration officials publicly reflect your views on this matter. Statements such as the one from DEA chief of operations James L. Capra that the legalization of marijuana at the state level is "reckless and irresponsible" serve no purposes other than to inflame passions and misinform the public.

Thank you for your continued thoughtfulness about this important issue. We believe the current system wastes resources and destroys lives, in turn damaging families and communities. Taking action on this issue is long overdue.

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.

CONTINUE READING…

Law, Science, and the Coming Brawl Over Marijuana

The federal government is on the wrong side of science over medical marijuana. Until that changes, there’s no chance for legalization.

banner_pot.jpg

Colorado’s newly-passed Amendment 64 contemplates a brave new world in which adults in the state will be able to lawfully smoke small amounts of marijuana purchased from licensed (and heavily taxed) local retailers. But that world isn’t even scheduled to begin until 2014, and only then if there are significant changes in the many assorted ways in which federal law criminalizes recreational marijuana possession and use. There is the legal component to the issue. There is the political component to it. And of all the paths forward there is one that is clearest and the most fair. What are the odds that it is the one Washington now chooses?
Since Colorado (and Washington state) legalized the use of recreational marijuana last week, the national conversation about what comes next has focused primarily on the obvious conflict between federal and state authority. On the one hand, we have the Controlled Substances Act, the venerable federal statute that for the past four decades has labelled marijuana as a “Schedule 1” substance on par with heroin. And on the other hand we have a clear policy choice made by voters in the election of 2012 that marijuana should be treated like alcohol. There’s been a rebellion out west, in other words, which the feds are destined to win.
But there is another conflict here that’s been splayed open by the ballot initiatives, one which is more fundamental to the future of lawful marijuana use than any argument the feds will now use to stop the state initiatives. It’s the ongoing conflict over the science of marijuana, over the quality of proof of its medicinal values, which is central to the coming court fights. Until the Drug Enforcement Administration changes its marijuana classification, until lawmakers recognize its therapeutic uses, reformers like those in Colorado and Washington will be crushed in court.
The federal policy choice on marijuana’s classification is the horse. The Justice Department’s coming use of that policy against the states is the cart. And that’s why the timing of the state initiatives is so compelling. Just last month, a few weeks before the election, a panel of three federal judges in Washington, D.C., heard oral arguments in a case on this very point called Americans for Safe Access v. Drug Enforcement Administration. The feds say that studies of the virtues of medical marijuana are not rigorous enough to warrant a change in DEA policy. The reformers say there is enough proof, and testimony, to justify the change.
So far, the case hasn’t gotten nearly as much coverage as it should have, and as it would have had the hearing been held this week (last Tuesday, Massachusetts also became the 18th state to legalize the use of medical marijuana). But here’s all you need to know about the institutional forces of the law which are working against the reformers. Referring to the DEA, Judge Merrick Garland asked a question a million judges before him have asked when evaluating whether to push a federal agency to do something it hasn’t before wanted to do: “Don’t we have to defer to their judgment?”
Their judgment. The Colorado and Washington initiatives are the most forceful and populist responses yet to the antiquated judgment of DEA policy makers. The state measures also are a repudiation of Congress’ discriminatory marijuana laws and the law-and-order lobby’s priorities. And even if the new state laws stand today on poor legal ground–let’s face it, they do–the success of the initiatives out West already has sent a strong political message to Washington on marijuana policy: You can’t go back. You can no longer stay still. The only choice left is to figure out the smartest way to go forward.
Something’s gotta give. Right now, a White House that prides itself on being on the right side of science when it comes to global warming is on the wrong side of science when it comes to medical marijuana. Right now, a Congress that praises states’ rights is hampering the ability of states to experiment with new sources of revenue. Right now, the federal government in all its forms is taking a position which may have made sense in the early 1970s but which is now directly at odds with the testimony of thousands of military veterans who say marijuana helps ease their pain.
The faces of the movement aren’t just the young voters out West who think it’s absurd that they can drink alcohol but can’t get high. They aren’t just the entrepreneurs in Colorado who are making the marijuana industry a burgeoning, tax-revenue-generating retail industry. They aren’t the conservative figures who want to stop paying the prison costs of incarceration for marijuana offenses. They are also American war veterans like Michael Krawitz. He’s a disabled plaintiff in the ongoing DEA lawsuit in Washington. Here’s how The Guardian explains why:

Krawitz had been receiving opiate-based pain relief from the VA until they discovered a prescription for medical marijuana he had received while abroad. They asked him to take a drug test and when he refused, they stopped his treatment. “It said right there in the contract that if they find illegal drugs in your system they they will not give you any pain treatment,” he said. “I found that offensive. I’ve been getting this pain treatment for years.”

The Colorado and Washington measures aren’t likely a tipping point for marijuana legalization. But they may be a tipping point toward a federal drug policy that recognizes that marijuana is different from heroin–and even that would be a long-overdue step in the right direction. The Justice Department soon will challenge the state initiatives in court and the feds almost certainly will win. No federal judge wants to be the one to declare marijuana “legal” before Congress or the DEA does. What the White House ought to do in the meantime, however, is demand a broad new review of the federal government’s marijuana policies.
At a minimum, such a review ought to embrace the following truths, which appear to millions of Americans, including millions of young people who came out to vote for President Obama, to be self-evident. The Controlled Substances Act didn’t come down from the mountaintop. Marijuana’s “Schedule 1” classification isn’t engraved in stone. And the DEA and its policy experts are hardly the Sanhedrin. Whatever else they mean, the Colorado and Washington laws mean the time has come for the feds to better justify a drug policy that has lost key pillars of its factual and political support.
If the administration undertakes this sort of review–“hopefully, the historic in in Colorado will help pressure the federal government to bring a more science-based approach to drug laws,” coyly says Brian Vicente, one of the attorneys behind Amendment 64–it will help insulate the White House from progressive complaints about the coming federal litigation to block the two legalization measures. And it will hardly outrage conservatives, many of whom, like the Koch brothers, support legalization efforts. Such a review, you could say, is the very least the President could do for all those people who came out to vote for him these past two cycles.
That, anyway, is the larger view. For a closer look, I asked Professor Sam Kamin, who teaches at the University of Denver Law School, to share his thoughts on what’s likely to happen next in Colorado. Kamin has closely followed Colorado’s successful embrace of medical marijuana as well as its new dance with outright legalization. Here is a (slightly) edited transcript of our email interview:
COHEN: The voters have spoken. Colorado’s Constitution is changed. But isn’t the next step legislation and regulation within the state to determine how it is all going to work? I’m sure you’ve thought about happens now within the state government. As specifically as you can, please walk me through the next few weeks and months.

KAMIN: Everything now depends on what the federal government does next. We know that our governor has been in conversations with the Attorney General Holder about what the Justice Department will do next, but so far he has not been particularly forthcoming about what he has learned. If the federal government indicates a willingness to permit Washington and Colorado to proceed with legalization- and I very much doubt that it will–then the legislature and administrative agencies in these states will begin work on how the industry will be taxed and regulated. This should not be a particularly complicated task; Colorado has regulated and taxed medical marijuana since 2010. Little would need to change about this regulation except removing the requirement that those seeking to buy marijuana from a licensed retailer obtain a doctor’s recommendation first.

COHEN: The average citizen in Colorado who voted for this Amendment is wondering when she’ll be able to buy marijuana and smoke it legally without a medical certification. Is that completely dependent upon how the coming legal fight plays out? And is the expectation that the feds will challenge the initiative at the point of sale? 

KAMIN: I think this is the crucial question. The federal government has always had the power to shut down state experimentation with marijuana legalization. Marijuana remains a controlled substance whose sale and manufacture are prohibited by the Controlled Substances Act (CSA). Thus, every sale of marijuana in every state–whether it has legalized marijuana for medical purposes or otherwise–remains a federal crime. The federal government could thus arrest every person who sells marijuana in these states or at least arrest enough of them to make the others reconsider their choices.

A less confrontational approach would be to file suit–as the federal government did in Arizona to enjoin the enforcement of SB 1070–to prevent the implementation of Amendment 64.  Interestingly, there is little the federal government could do about Colorado’s decision to legalize marijuana–the federal government lacks the power to force the states to criminalize any particular conduct. The states are under no obligation to mirror the CSA or to help the federal government enforce it. Thus, the states may presumably repeal their marijuana prohibitions without running afoul of federal law.

However, the second part of Amendment 64–requiring the state to set up procedures for the licensing of recreational marijuana dispensaries–is more problematic. The federal government could allege that such state-level sanctioning of marijuana businesses would constitute an impermissible obstacle to the enforcement of the CSA. Where state and federal law conflict, the federal law is supreme.

COHEN: The Justice Department has said since the election that Amendment 64 doesn’t change federal law and of course it doesn’t. Is there any way for the initiative to survive without a change to the federal classification of marijuana as a controlled substance on par with heroin? How can Colorado and Washington (state) move Washington to reevaluate that classification?

KAMIN: A little-understood aspect of the marijuana legalization movement is that the reclassification of marijuana would likely prove fatal to the legalization movement. Currently, marijuana is a Schedule I narcotic, a drug whose manufacture and sale are strictly prohibited. If it were re-classified to a less serious category it would then be available as medicine, likely subject to a doctor’s prescription. Of course, such a rule, which the federal government would likely enforce more strictly than it has the current prohibition, would forbid the licensing of recreational dispensaries in the states. Marijuana law reform has been proceeding along parallel tracks–in the courts, Congress and in the states–and those different tracks are beginning to create tensions.

COHEN: Look into your crystal ball. What’s the most likely outcome here? If there is to be a surprise, legally or politically, what do you figure it will be?

KAMIN: I imagine we will see something less than the dramatic federal response described above. I imagine the federal government will offer the states a return to the status quo prior to November 6. That is, I can imagine the Justice Department telling the states that it will continue to grudgingly permit the states to continue with medical marijuana but that full legalization is a bridge too far. This was essentially the message that Attorney General Holder sent to the California voters who ultimately rejected Proposition 19 in 2010. It was a difficult message for the Obama administration to send in a presidential election year in a swing state, however. With the election now passed, we may see a repeat of 2010. Like everyone else, though, I’m simply guessing.

CONTINUE READING…

Law, Science, and the Coming Brawl Over Marijuana

The federal government is on the wrong side of science over medical marijuana. Until that changes, there’s no chance for legalization.

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Colorado’s newly-passed Amendment 64 contemplates a brave new world in which adults in the state will be able to lawfully smoke small amounts of marijuana purchased from licensed (and heavily taxed) local retailers. But that world isn’t even scheduled to begin until 2014, and only then if there are significant changes in the many assorted ways in which federal law criminalizes recreational marijuana possession and use. There is the legal component to the issue. There is the political component to it. And of all the paths forward there is one that is clearest and the most fair. What are the odds that it is the one Washington now chooses?
Since Colorado (and Washington state) legalized the use of recreational marijuana last week, the national conversation about what comes next has focused primarily on the obvious conflict between federal and state authority. On the one hand, we have the Controlled Substances Act, the venerable federal statute that for the past four decades has labelled marijuana as a "Schedule 1" substance on par with heroin. And on the other hand we have a clear policy choice made by voters in the election of 2012 that marijuana should be treated like alcohol. There’s been a rebellion out west, in other words, which the feds are destined to win.
But there is another conflict here that’s been splayed open by the ballot initiatives, one which is more fundamental to the future of lawful marijuana use than any argument the feds will now use to stop the state initiatives. It’s the ongoing conflict over the science of marijuana, over the quality of proof of its medicinal values, which is central to the coming court fights. Until the Drug Enforcement Administration changes its marijuana classification, until lawmakers recognize its therapeutic uses, reformers like those in Colorado and Washington will be crushed in court.
The federal policy choice on marijuana’s classification is the horse. The Justice Department’s coming use of that policy against the states is the cart. And that’s why the timing of the state initiatives is so compelling. Just last month, a few weeks before the election, a panel of three federal judges in Washington, D.C., heard oral arguments in a case on this very point called Americans for Safe Access v. Drug Enforcement Administration. The feds say that studies of the virtues of medical marijuana are not rigorous enough to warrant a change in DEA policy. The reformers say there is enough proof, and testimony, to justify the change.
So far, the case hasn’t gotten nearly as much coverage as it should have, and as it would have had the hearing been held this week (last Tuesday, Massachusetts also became the 18th state to legalize the use of medical marijuana). But here’s all you need to know about the institutional forces of the law which are working against the reformers. Referring to the DEA, Judge Merrick Garland asked a question a million judges before him have asked when evaluating whether to push a federal agency to do something it hasn’t before wanted to do: "Don’t we have to defer to their judgment?"
Their judgment. The Colorado and Washington initiatives are the most forceful and populist responses yet to the antiquated judgment of DEA policy makers. The state measures also are a repudiation of Congress’ discriminatory marijuana laws and the law-and-order lobby’s priorities. And even if the new state laws stand today on poor legal ground–let’s face it, they do–the success of the initiatives out West already has sent a strong political message to Washington on marijuana policy: You can’t go back. You can no longer stay still. The only choice left is to figure out the smartest way to go forward.
Something’s gotta give. Right now, a White House that prides itself on being on the right side of science when it comes to global warming is on the wrong side of science when it comes to medical marijuana. Right now, a Congress that praises states’ rights is hampering the ability of states to experiment with new sources of revenue. Right now, the federal government in all its forms is taking a position which may have made sense in the early 1970s but which is now directly at odds with the testimony of thousands of military veterans who say marijuana helps ease their pain.
The faces of the movement aren’t just the young voters out West who think it’s absurd that they can drink alcohol but can’t get high. They aren’t just the entrepreneurs in Colorado who are making the marijuana industry a burgeoning, tax-revenue-generating retail industry. They aren’t the conservative figures who want to stop paying the prison costs of incarceration for marijuana offenses. They are also American war veterans like Michael Krawitz. He’s a disabled plaintiff in the ongoing DEA lawsuit in Washington. Here’s how The Guardian explains why:

Krawitz had been receiving opiate-based pain relief from the VA until they discovered a prescription for medical marijuana he had received while abroad. They asked him to take a drug test and when he refused, they stopped his treatment. "It said right there in the contract that if they find illegal drugs in your system they they will not give you any pain treatment," he said. "I found that offensive. I’ve been getting this pain treatment for years."

The Colorado and Washington measures aren’t likely a tipping point for marijuana legalization. But they may be a tipping point toward a federal drug policy that recognizes that marijuana is different from heroin–and even that would be a long-overdue step in the right direction. The Justice Department soon will challenge the state initiatives in court and the feds almost certainly will win. No federal judge wants to be the one to declare marijuana "legal" before Congress or the DEA does. What the White House ought to do in the meantime, however, is demand a broad new review of the federal government’s marijuana policies.
At a minimum, such a review ought to embrace the following truths, which appear to millions of Americans, including millions of young people who came out to vote for President Obama, to be self-evident. The Controlled Substances Act didn’t come down from the mountaintop. Marijuana’s "Schedule 1" classification isn’t engraved in stone. And the DEA and its policy experts are hardly the Sanhedrin. Whatever else they mean, the Colorado and Washington laws mean the time has come for the feds to better justify a drug policy that has lost key pillars of its factual and political support.
If the administration undertakes this sort of review–"hopefully, the historic in in Colorado will help pressure the federal government to bring a more science-based approach to drug laws," coyly says Brian Vicente, one of the attorneys behind Amendment 64–it will help insulate the White House from progressive complaints about the coming federal litigation to block the two legalization measures. And it will hardly outrage conservatives, many of whom, like the Koch brothers, support legalization efforts. Such a review, you could say, is the very least the President could do for all those people who came out to vote for him these past two cycles.
That, anyway, is the larger view. For a closer look, I asked Professor Sam Kamin, who teaches at the University of Denver Law School, to share his thoughts on what’s likely to happen next in Colorado. Kamin has closely followed Colorado’s successful embrace of medical marijuana as well as its new dance with outright legalization. Here is a (slightly) edited transcript of our email interview:
COHEN: The voters have spoken. Colorado’s Constitution is changed. But isn’t the next step legislation and regulation within the state to determine how it is all going to work? I’m sure you’ve thought about happens now within the state government. As specifically as you can, please walk me through the next few weeks and months.

KAMIN: Everything now depends on what the federal government does next. We know that our governor has been in conversations with the Attorney General Holder about what the Justice Department will do next, but so far he has not been particularly forthcoming about what he has learned. If the federal government indicates a willingness to permit Washington and Colorado to proceed with legalization- and I very much doubt that it will–then the legislature and administrative agencies in these states will begin work on how the industry will be taxed and regulated. This should not be a particularly complicated task; Colorado has regulated and taxed medical marijuana since 2010. Little would need to change about this regulation except removing the requirement that those seeking to buy marijuana from a licensed retailer obtain a doctor’s recommendation first.

COHEN: The average citizen in Colorado who voted for this Amendment is wondering when she’ll be able to buy marijuana and smoke it legally without a medical certification. Is that completely dependent upon how the coming legal fight plays out? And is the expectation that the feds will challenge the initiative at the point of sale? 

KAMIN: I think this is the crucial question. The federal government has always had the power to shut down state experimentation with marijuana legalization. Marijuana remains a controlled substance whose sale and manufacture are prohibited by the Controlled Substances Act (CSA). Thus, every sale of marijuana in every state–whether it has legalized marijuana for medical purposes or otherwise–remains a federal crime. The federal government could thus arrest every person who sells marijuana in these states or at least arrest enough of them to make the others reconsider their choices.

A less confrontational approach would be to file suit–as the federal government did in Arizona to enjoin the enforcement of SB 1070–to prevent the implementation of Amendment 64.  Interestingly, there is little the federal government could do about Colorado’s decision to legalize marijuana–the federal government lacks the power to force the states to criminalize any particular conduct. The states are under no obligation to mirror the CSA or to help the federal government enforce it. Thus, the states may presumably repeal their marijuana prohibitions without running afoul of federal law.

However, the second part of Amendment 64–requiring the state to set up procedures for the licensing of recreational marijuana dispensaries–is more problematic. The federal government could allege that such state-level sanctioning of marijuana businesses would constitute an impermissible obstacle to the enforcement of the CSA. Where state and federal law conflict, the federal law is supreme.

COHEN: The Justice Department has said since the election that Amendment 64 doesn’t change federal law and of course it doesn’t. Is there any way for the initiative to survive without a change to the federal classification of marijuana as a controlled substance on par with heroin? How can Colorado and Washington (state) move Washington to reevaluate that classification?

KAMIN: A little-understood aspect of the marijuana legalization movement is that the reclassification of marijuana would likely prove fatal to the legalization movement. Currently, marijuana is a Schedule I narcotic, a drug whose manufacture and sale are strictly prohibited. If it were re-classified to a less serious category it would then be available as medicine, likely subject to a doctor’s prescription. Of course, such a rule, which the federal government would likely enforce more strictly than it has the current prohibition, would forbid the licensing of recreational dispensaries in the states. Marijuana law reform has been proceeding along parallel tracks–in the courts, Congress and in the states–and those different tracks are beginning to create tensions.

COHEN: Look into your crystal ball. What’s the most likely outcome here? If there is to be a surprise, legally or politically, what do you figure it will be?

KAMIN: I imagine we will see something less than the dramatic federal response described above. I imagine the federal government will offer the states a return to the status quo prior to November 6. That is, I can imagine the Justice Department telling the states that it will continue to grudgingly permit the states to continue with medical marijuana but that full legalization is a bridge too far. This was essentially the message that Attorney General Holder sent to the California voters who ultimately rejected Proposition 19 in 2010. It was a difficult message for the Obama administration to send in a presidential election year in a swing state, however. With the election now passed, we may see a repeat of 2010. Like everyone else, though, I’m simply guessing.

CONTINUE READING…