Marijuana Law in a Nutshell
Authors:
Osbeck, Mark K. / Bromberg, Howard
Edition:
1st
Copyright Date:
2017
36 chapters
have results for marijuana law in a nutshell
Chapter 14. Special Criminal Issues 49 results (showing 5 best matches)
- Many issues relevant to establishing the elements of marijuana crimes are a subset of issues arising with drug crimes in general. For in-depth treatment of criminal law, see
- Despite the trend towards legalization by American states, marijuana in the United States remains largely forbidden. Certainly marijuana activity is a crime under federal law. Likewise, in all 50 states, marijuana cultivation, possession, consumption, and sale remain offences, subject to limited exceptions in states that have set up legalization schemes. And while a majority of states have carved out exceptions for medical use of marijuana, there are precise restrictions for licit medical use, and marijuana activity outside of these limits constitutes a criminal offense. Similarly, criminal penalties remain for such offences as driving while marijuana impaired, possessing marijuana in public view, and possessing a quantity of marijuana beyond authorized amounts, even in jurisdictions that have legalized medical and recreational marijuana.
- As to these doctrines, it seems better to think of medical marijuana states not so much as legalizing marijuana, but as carving a narrow exception to a criminal law regime. For example, in , the defendant argued that as New Jersey legalized medical marijuana in 2010, the police officer who detected the odor of marijuana from his car and conducted a search (turning up a small baggie of marijuana) lacked probable cause. The court held that the “plain smell” marijuana doctrine is still valid, and that given the requirements that must be satisfied to legally possess medical marijuana, a police officer is still entitled to presume from the odor of marijuana that illegal drug activity is taking place. Likewise in Michigan, the burden is on the person claiming legal use of marijuana to present a defense of immunity under Michigan Medical Marihuana Act § 4, showing a valid license or registration, or an affirmative defense under § 8, showing that a physician, in a bona-fide relationship with a
- Marijuana crimes fall under the general category of crimes of misuse of controlled substances, that is, drug crimes. Nevertheless, marijuana raises unique evidentiary issues, relating to the law of possession, search and seizure, sentencing, and asset forfeiture, and these have played a significant role in the jurisprudence of criminal law.
- Constructive possession is mostly a legal conclusion. A person is in constructive possession of marijuana if aware of the presence of marijuana which is subject to the person’s dominion and control. Two factors make constructive possession especially prominent in marijuana law: the wide availability of marijuana and its distinctive aroma. Because marijuana is widely available, inexpensive, casually bought and sold, and frequently shared by acquaintances, marijuana is often found in “common areas,” such as living rooms or kitchens in apartments shared by several occupants. This differs from other Schedule I drugs, which courts have described as “commodit[es] of significant value, unlikely to be abandoned or carelessly left in an area.”
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Preface 8 results (showing 5 best matches)
- This Nutshell covers the wide range of laws affecting marijuana. There is no neat pre-packaging of marijuana issues. We organize our topics according to the basic divisions of marijuana law. This involves primarily accounting for the differences between federal and state law, and for the diversity among the 50 states themselves. The federal law of marijuana is largely shaped by its inclusion in the most restrictive schedule (Schedule I) of the 1970 Controlled Substances Act (abbreviated throughout the book as the “CSA”). For the states, we focus on issues raised by its legalization for medical and recreational purposes, noting peculiarities of one or other state where necessary.
- In addition to jurisdictional questions that divide marijuana law, it is also bifurcated by its illegal or legal status. Where illegal, marijuana law is primarily a subset of criminal law and procedure, and we focus on the criminal law of marijuana in two ways. First, by the range of its prohibitions and penalties. And second, on how the unique characteristics of marijuana law shape our criminal jurisprudence in such areas as Fourth Amendment search and seizure. Where legalized, marijuana law is a subset of the law of regulated substances, but with special characteristics. For example, marijuana businesses must account for federal regulations affecting their dealings with banks, bankruptcy courts, the IRS, and employees. States must calibrate new rules to cover issues such as excise and sales taxes on marijuana, parental custody for medical marijuana users, and driving while marijuana-impaired. Lawyers must take into account canons of professional responsibility against advising...
- On November 8, 2016, two major issues were on American ballots coast-to-coast: the presidential election and the status of marijuana. Marijuana referenda were on the ballots of nine states; four states voted to enact medical marijuana measures, and four states recreational marijuana. As a result, more than half of the states in the United States and the District of Columbia now have legal medical marijuana. Eight states, plus the District of Columbia, comprising almost a quarter of the U.S. population, now have recreational marijuana. These states are pioneers in fashioning laws to regulate, monitor, and tax marijuana consumption. They do so against a framework of federal laws that classify marijuana activity as illegal and subject to severe sanctions. Congress, the executive branch, and federal and state courts wrestle with the complexities of this evolving area of law while legal scholars and students wrestle with the almost unprecedented questions they raise.
- Given this wide range of issues, marijuana law is an ideal topic for understanding the unique characteristics of American law and legal institutions. All branches of government make their impact known in marijuana law, often at odds with each other. We include for further investigation citations to the important marijuana-related constitutional provisions, court cases, statutes, amendments, and regulations promulgated by federal and state agencies.
- U.S. marijuana law is also shaped at a global and local level. The United States is signatory to international treaties that curtail marijuana use. The United Nations estimates 183 million persons use marijuana worldwide; thus we review the experience of foreign nations as well. And municipalities are shaping their own marijuana law, raising questions as to how far local ordinances can conflict with state law. The law of marijuana as it relates to Native Americans is of importance both for the sovereign status of Indian tribes and because of initial forays into cultivation of marijuana and hemp on Indian reservations.
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Chapter 13. State vs. State Disputes 35 results (showing 5 best matches)
- The discrepancy between federal law and state law has implications for relations between the states as well. If State X has not legalized marijuana and neighboring State Y has legalized marijuana, can State X complain that Y’s legalization will adversely impact X’s marijuana prohibitions? State Y is not actively encouraging the overflow of marijuana into State X, but surely legal accessibility to marijuana will increase consumption and trafficking across the border. The laws of neighboring states often differ one from another, but in this scenario State Y’s law contrasts with federal law as well. What is more, the federal government bases its authority to enforce marijuana prohibition nationwide in the Commerce Clause, under the theory that it needs to exercise authority over both interstate and intrastate marijuana activity so as to avoid conflict. Can State X bring a lawsuit against State Y demanding an end to its legalization ...X bring a lawsuit against the federal... ...its laws...
- A central question of marijuana law is the relation among various sovereign entities in U.S. law. Only a few legal issues in the United States have presented as divided a face as current marijuana law. It is certainly true that earlier conflicts between federal and state law, such as those that characterized slavery and civil rights, were of greater importance. Still, almost every question of marijuana law today is shaped to some extent by an understanding of federalism, and of the relations among various jurisdictions.
- The current status of marijuana law in the U.S. resembles a patchwork quilt. Marijuana activity is prohibited by federal law, the supreme law of the land, yet tolerated for many purposes by the Justice Department, which is required to enforce the laws enacted by Congress. In a majority of states marijuana is legal for medicinal purposes, and in eight of those states, recreational purposes as well. As domestic dependent nations, Indian tribes are subject to the plenary authority of Congress, although Congress has delegated considerable authority to the states and to the tribes themselves. Thus, marijuana law on the reservation will inevitably relate to the regulatory scheme of the surrounding state. Indian tribes have experience with this complex status of their laws in regards to such enterprises as casino gaming, alcohol, and tobacco sales. But they have not had to confront the situation where the laws outside the reservation are themselves in contradiction. Unlike other... ...in...
- States have made accommodations with Indian tribes, but the results are in dispute. For example, when Washington legalized marijuana, it exempted the Yakama nation and other tribes that wanted to retain local laws against marijuana use. Nevertheless, the Yakama claimed that Washington-labeled marijuana was infiltrating their 1.2 million-acre reservation. In response, the Yakama sought to enforce an 1855 treaty, so as to ban marijuana over an additional 10.8 million acres of ancestral land in Washington, comprising one-fifth of Washington’s land mass. The Yakama filed objections to marijuana licensing applications made from within this ceded territory, but apparently to no effect.
- The lawsuit was itself a well-documented summary of 45 years of federal authority in the area of marijuana law—now asserted on behalf of states that wanted to keep marijuana use criminal. A summary follows:
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Chapter 8. Federalism and Preemption 61 results (showing 5 best matches)
- However, this raises the question of whether state laws that contradict rather than reinforce the CSA are preempted as representing a conflict with federal law. The first form of conflict preemption—impossibility—is explicitly mentioned in § 903 of the CSA: state marijuana law is “preempted if there is a positive conflict between that provision of this subchapter [CSA] and that State law so that the two cannot consistently stand together.” Most courts have found that state legalization of marijuana does not constitute impossibility preemption because it does not prevent the federal government from enforcing federal prohibition of marijuana if it so chooses—the states do not force anyone to violate federal law. In other words, it is not a physical impossibility to comply with both federal and state law as to marijuana so long as an actor refrains from marijuana activity. Thus, federal and state marijuana law “can stand together,” because state medical and recreational marijuana laws...
- The CSA strictly prohibits marijuana consumption in all of its forms. Theoretically, this law governs every person in the U.S. and makes all marijuana activity, including medical marijuana, a federal crime, regardless of state law. The Supremacy Clause of
- Thus under traditional constitutional jurisprudence, marijuana would be prohibited in every state in the nation. However, the Justice Department has stated that it will allow states to enact regimes legalizing marijuana for medicinal or recreational purposes, so long as certain federal priorities are met. As a result, the current status of marijuana law in the United States is rather paradoxical. Marijuana is strictly prohibited by federal law, the supreme law of the land, yet tolerated for many purposes by the Justice Department, which is required to enforce the laws enacted by Congress. In almost half of the states marijuana remains illicit; in the other half it is legal to use marijuana for medicinal purposes, and in some states, for recreational purposes as well.
- This chapter explores marijuana law as a component of federalism and the extent to which federal law preempts the legalization efforts of the states. Section 8–2 reviews federal marijuana law as the supreme law of the land. Sections 8–3 and 8–4 review the complex questions of federalism and preemption in marijuana law. And § 8–5 describes the latest enforcement policy of the Department of Justice (DOJ) as expressed in recent official memoranda.
- A central question of marijuana law is the relation between federal and state drug law. Marijuana law today is largely shaped by an understanding of federalism—that is, the interaction between federal and state law, and the extent to which state law is preempted by federal law.
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Chapter 11. State Law 41 results (showing 5 best matches)
- Beginning in the early 1970s, however, state law began to diverge from federal law—a trend that continues to the present time. This divergence has manifested itself in several distinct ways. Thus, while no two states are exactly the same in terms of their treatment of marijuana, there are certain trends that are apparent when examining state marijuana laws that have put a number of states in conflict with federal law. The first of these is decriminalization. Beginning in the early 1970s, certain states, as well as a few municipalities, began to decriminalize marijuana possession, making it a mere civil offense (or a petty criminal offense with no possibility of jail time). At the present time, nearly half of the states have taken this approach. In addition, beginning in the mid-1990s, certain states began to allow the medical use of marijuana, thereby breaking down the blanket prohibition (whether civil or criminal) on marijuana use that had existed almost universally among the...
- Medical marijuana patients also face certain obstacles to important activities that most of us take for granted. For example, as discussed further in Chapter 17, medical marijuana patients have to be careful when driving, particularly in states such as Colorado and Washington that have limits on blood THC levels. Because they are using the drug frequently, medical marijuana users may carry enough THC in their blood to violate criminal laws on impaired driving, even if the patients are not “high” at the time they are driving. Similarly, as discussed further in Chapter 16, medical marijuana patients face challenges in the workplace, because most states allow employers to terminate medical marijuana patients who fail random drug tests, even though the patients are not using marijuana at work, and are not impaired at work. Medical marijuana patients may face other legal difficulties as well (e.g., with landlords who don’t want marijuana used in the premises, with child custody evaluators...
- Interestingly, a particular state’s decision to legalize medical marijuana does not necessarily reflect a general lenience toward marijuana possession on the part of the state. In fact, some of the harshest penalties for illegal use of marijuana are found in states that authorize the medical use of marijuana. Arizona, for example, allows medical marijuana patients with various qualifying conditions to possess up to 2 ½ ounces of usable marijuana for medical purposes. However, strict compliance with the state’s medical marijuana act is necessary, and possession outside of the strict confines of the medical marijuana act is a felony, punishable by incarceration of four months to 3.75 years, depending on the amount, as well as a fine of up to $150,000. Thus, patients, caregivers, and marijuana-related businesses in medical marijuana states need to carefully monitor their activities, as well as new developments in the law, to ensure that they are staying within the strict confines of the
- The enactment of California’s Compassionate Use Act in November 1996 (a.k.a. Proposition 215) commenced a new era in marijuana law—an era of legalization. Of course, such legalization was confined to a relatively small group of individuals: namely, those who managed to obtain a doctor’s recommendation to use marijuana for therapeutic purposes. But it was nevertheless a significant milestone, since it was the first time in the better part of a century that anyone could use marijuana products legally.
- So-called “recreational” marijuana states allow adults in the state to use and possess limited amounts of marijuana as they see fit. The first two states to legalize marijuana generally (that is to say for personal, non-medical use) were Colorado and Washington in November 2012. In doing so, they became the first jurisdictions in the world to enact comprehensive schemes to legalize and regulate the recreational use of marijuana. (The city of Amsterdam is often thought of as a legalization pioneer, but in fact its policy is to refrain from enforcement of laws criminalizing marijuana in certain contexts, such as personal use in coffee shops.)
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Chapter 12. Local Law 25 results (showing 5 best matches)
- While the majority of cases in which municipalities seek to deviate from state law with respect to marijuana possession involve local laws that are more lenient than state laws, there have also been a few municipalities that have sought to impose more restrictive local laws in response to a state’s legalization of medical marijuana. The results of court challenges to these more restrictive local laws have been mixed.
- Decriminalization efforts have also picked up renewed steam at the local level, generally in states that continue to maintain criminal penalties for personal marijuana possession that include the possibility of prison time. Thus, in a number of states that have not yet decriminalized marijuana, voters in marijuana-friendly pockets of the states have championed local initiatives that make possession of small amounts of marijuana for personal use merely civil infractions. By 2016, in Michigan and Wisconsin alone, approximately 2 dozen municipalities had passed laws decriminalizing simple possession, including Milwaukee and Detroit, the largest municipalities in the two states. Other states in which multiple municipalities have decriminalized marijuana possession include Pennsylvania and Florida. In Tampa, for example, the penalty for the first possession offense is a $75 fine, and for subsequent offenses a fine of $450. This contrasts significantly with Florida state law, where a...
- Section 12–2 of this chapter discusses the early efforts on the part of some municipalities in the 1970s to decriminalize personal marijuana possession within their jurisdictions. Section 12–3 looks at more recent efforts in this regard among municipalities located in states that have not themselves decriminalized personal marijuana possession. Section 12–4 looks at the opposite side of the coin: that is, at local efforts opposing or opting out of state legalization. Some municipalities in states with medical marijuana laws have sought to enforce more restrictive laws against marijuana possession than state law provides. And some municipalities have exercised their option under state medical marijuana law to disallow marijuana-related businesses, particularly dispensaries, within their local jurisdictions. Finally, § 12–5 briefly discusses efforts on the part of local governments to regulate the possession and use of legalized marijuana within their jurisdictions.
- In , for example, the city of Wyoming, Michigan, a suburb of Grand Rapids (which, as discussed above, enacted a local decriminalization measure in 2012) adopted an ordinance that amended the zoning chapter of the city code to provide that any property uses contrary to federal law, state law, or local ordinances were prohibited. Ter Beek, a medical marijuana patient, then filed a lawsuit alleging that he wished to grow and possess medical marijuana in his home pursuant to the Michigan Medical Marihuana Act, but was prevented from doing so by the ordinance’s incorporation of federal law prohibiting marijuana possession. This, he argued, impermissibly contravened the Michigan Medical Marihuana Act, which provides that registered qualifying patients shall not be subject to arrest or prosecution for medical use of marijuana in accordance with the Act.
- Finally, even where they have not directly challenged state law, many municipalities in medical-marijuana states have exercised their rights under state law to not allow dispensaries and other marijuana-related businesses to operate within their jurisdictions. Thus, in a number of states that have legalized medical and/or recreational marijuana use and have authorized dispensaries, marijuana may be not be available in many if not most localities. In Colorado, for example, it is actually only a minority (albeit a substantial one) of municipalities that allow dispensaries, although they tend to be the larger cities, such as Denver, so the majority of state residents live within jurisdictions allowing dispensaries. And even in those that do not, access to marijuana is usually not far away. For example, although Colorado Springs, the state’s second-largest city, bans marijuana dispensaries, the small enclave of Manitou Springs (home of the Pikes Peak Cog Railway), which is located...
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Chapter 26. Looking Forward 44 results (showing 5 best matches)
- The uncertain situation over marijuana law is the result of the increasing disconnect between popular belief as to the relative lack of danger of marijuana consumption and the inertia of a drug regime that was consolidated in the 1970s with a view of marijuana as among the most dangerous of narcotics. The prospects of marijuana law reform reflect a reversal of how this regime was assembled. The drug regime is in a certain sense top-down. International agreements among nations, most importantly the 1961 Single Convention on Narcotic Drugs, require each signatory to outlaw production, possession, and distribution of cannabis, except for scientific and medical purposes. To comply, major nations have enacted laws prohibiting marijuana to a greater or lesser extent. The United States consolidated its variety of federal marijuana laws ...of cannabis as a Schedule I drug under the CSA, which permitted no exceptions for medical use and little for scientific research. The states... ...law...
- Rescheduling at the federal level can happen in two ways. First, Congress, which placed marijuana in Schedule I, can amend the CSA to reschedule marijuana. Second, the DEA, the agency charged with administrative oversight of scheduling, can reschedule marijuana, after assessing data from other federal agencies as required by federal law. In either case, rescheduling would constitute the beginning of a new era in federal marijuana law—but one with its own set of questions and complexities as marijuana would remain a controlled and highly regulated substance. Even if classified in a less restrictive schedule, marijuana products would need to obtain FDA approval, itself an arduous procedure. In a sense, rescheduling can be thought of as transferring marijuana regulation from the DEA as a criminal enforcement matter, to the FDA, as a question of health evaluation and product approval.
- In the November 2016 election cycle, four states—Arkansas, Florida, Montana, and North Dakota—approved or expanded access to medical marijuana, and four states—California, Maine, Massachusetts, and Nevada—approved recreational marijuana. With these initiatives, well over half of the states have medical marijuana, and over 20% of Americans live in states with recreational marijuana. The results in California alone, constituting one-tenth of the nation’s population and the world’s sixth largest economy, may represent a sea change in American marijuana law.
- Although the federal government resisted state legalization to some extent, this resistance had become murky under the Obama administration, as the Department of Justice declared a more or less hands-off approach to state law. With the proliferation of state legalization, pressure is now on the federal government to reform its own marijuana laws, especially as to the scheduling of marijuana. The United States, a long time staunch opponent of relaxation of marijuana laws, is now at the forefront of marijuana reform, along with several nations in Western Europe and Latin America.
- Finally, as more states enact a legalized regulatory scheme of marijuana, the current compromise between federal and state marijuana laws, which portrays itself as a form of federalism, would be undermined. The current theory is that states can legalize marijuana, in the face of federal prohibition, which is the supreme law of the land, because legalization does not present affirmative impediments to federal enforcement of the marijuana laws. As state regulatory schemes are expanded into positive assistance by the state, this view of federal preemption and federal-state cooperation would be threatened. For example, if states owned or operated marijuana production facilities, supplied medical marijuana to needy citizens, or to researchers, as the federal government does with the NIDA Program, or established employment and disability accommodation rights for medical marijuana users, courts might well find state officials in violation of the Controlled Substances Act, as creating a...
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Chapter 6. Enforcement of the Controlled Substances Act 57 results (showing 5 best matches)
- However, the DEA’s unrelenting stance has been made more precarious by recent federal changes in marijuana policy. The DOJ has issued a series of memoranda that have allowed certain acquiescence in state legalization of medicinal and recreational use of marijuana. The first such document, the “Ogden” memorandum of October 19, 2009, encouraged U.S. Attorneys to focus on large-scale marijuana traffickers and not on individuals in compliance with state medical marijuana laws. The subsequent memo, the first “Cole memorandum,” emphasized enforcement against large-scale marijuana cultivators and distributors. Indeed, the DEA pursued several highly publicized arrests of large-scale marijuana cultivators and distributors who claimed to be operating according to state law. For example, in 2011, the DEA launched a major raid against two large central California medical marijuana dispensaries. One owner, Matthew Davies, was sentenced to 60 months in jail and faced a $100,000 fine; his partner,...
- Relying on state law enforcement for arrest of non-major marijuana users, growers, and sellers, the DEA focuses on arrests of large-scale marijuana growers and sellers linked to organized crime, both in the United States and abroad. From 1998 to 2013, DEA domestic arrests for marijuana violations averaged between 5,000 to 8,000 a year. In the same time frame, federal marijuana seizures connected to these arrests averaged about 1 to 2 million kilograms a year, making up about 95% of total drugs seized by federal agencies.
- This chapter summarizes federal enforcement of the marijuana provisions of the CSA by both the DOJ and the DEA. Section 6–2 describes various policies the DOJ has adopted in overseeing federal marijuana laws. Section 6–3 describes enforcement mechanisms the DEA has waged in its war against marijuana. Section 6–4 describes the consequences of marijuana violations under the CSA. And § 6–5 summarizes recent changes in the response of the DOJ and the DEA to state legalization of marijuana.
- Subsequent DOJ memos, however, made explicit that mere size of a marijuana operation did not implicate a federal law enforcement priority absent other evidence of illegality. In particular, the DOJ would not enforce the CSA prohibition against marijuana use in states and on Indian reservations that legalized marijuana, or against federally chartered banks in those states, so long as federal enforcement priorities are respected. These priorities are discussed in detail in Chapter 8. Thus, the long-term focus of the DEA on large-scale marijuana operations may not prevail against dispensaries and growers that meticulously comply with state law and avoid violating the federal priorities. These memoranda represent the policy of the current presidential administration and can be revoked at any time by the DOJ.
- The DOJ is the department of the federal government with authority to enforce federal criminal law. It is headed by the U.S. Attorney General, a cabinet level position. 93 U.S. Attorneys prosecute federal crimes in the 94 federal court districts. As with any law enforcement agency, the DOJ has a large amount of discretion in enforcing the law based on resources, needs, and urgency. Although the DOJ is obliged not to run afoul of equal protection and disparate treatment—common complaints in the criminal justice system—it had long asserted prosecution of marijuana crimes as a high priority. The DOJ has focused on higher level trafficking of marijuana and has relied on states to enforce street-level marijuana crimes with the same vigor. The enforcement capabilities of the federal government are limited, however, in terms of both manpower and constitutional reach. Historically, the states make over 100 marijuana arrests for every one arrest by federal agents. Thus, federal enforcement...in
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Chapter 20. Additional Civil Issues 27 results (showing 5 best matches)
- One approach has been to seek an equitable remedy under the illegality doctrine in contract law, which allows courts to refuse to enforce contracts if they pursue illegal ends or otherwise act against public policy interests. Landlords can argue that, since marijuana is illegal under federal law, a lease made for the purpose of running a marijuana-related business is an illegal contract. Since the illegality doctrine is an equitable doctrine, however, this remedy requires that the landlord have “clean hands” itself, which can be problematic if the landlord knew of the intended use at the time the lease was entered into. Another possibility is for the landlord to find the tenant in default for breach of certain related provisions in the lease. For example, many leases contain “illegal activity” clauses that allow the landlord to terminate its lease obligation if the tenant engages in illegal activities. Again, since marijuana is illegal under federal law, a colorable argument can be...
- Thus, courts tend to analyze a parent’s marijuana use on a case-by-case basis in custody matters. If there is evidence that the marijuana use adversely affects the child’s physical or emotional well-being, then a court will likely take that factor into account in determining custody, just as it would if evidence that a parent’s abuse of alcohol was adversely affecting the child’s well-being. The effect on custodial rights therefore depends less on the legal status of marijuana in a given state than on the effect on the child in the particular circumstances at issue. However, the law is still uncertain as to what extent the legal status of marijuana should have a bearing on the best-interests determination. And the answer in any given state turns in part on the precise wording of that state’s law. In some states, the law requires a clear evidentiary showing of potential harm to the child. In Michigan, for example, the medical-marijuana statute provides:
- Another area of the law where marijuana has caused some confusion is child custody. Like alcohol use, a parent’s marijuana use can play a factor in a court’s determination as to the best interests of the children, particularly if it rises to the level of drug abuse. The uncertain legal status of marijuana, and the conflict between federal and state law in marijuana legalization states, have added to the potential for confusion.
- The conflict between state and federal law regarding the legal status of marijuana has created problems for marijuana-related businesses in obtaining insurance to cover their operations. Many insurers are reluctant to enter the market for fear they will be found complicit in the violation of federal criminal laws, similar to the types of fears many in the banking industry have expressed with regard to servicing marijuana-related businesses. And in June 2015, the largest insurer of marijuana-related businesses, Lloyd’s of London, announced that it would be leaving the market and originating no new policies. Thus, it is often difficult for marijuana-related businesses in states that legalize marijuana to obtain insurance, and such insurance tends to be more costly than for comparable non-marijuana businesses.
- Another area of law that has been affected by legalization efforts at the state level is real-estate law. Marijuana-related businesses have faced some unique issues in dealing with landlords who may not be favorably disposed to leasing business spaces to businesses trafficking in marijuana, even though the businesses are operating legally under state law. Likewise, landlords may not like the idea of tenants smoking marijuana or cultivating marijuana plants in apartments and rented houses.
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Chapter 1. Overview—Marijuana Regulation in the United States 25 results (showing 5 best matches)
- Marijuana law also includes practical administrative issues that states have had to deal with when they decide to legalize, in whole or in part, marijuana possession and use, such as how to reign in impaired driving caused by marijuana use, how to keep legal marijuana out of the hands of minors, and how best to regulate the number and location of marijuana-related businesses. Thus, the marijuana-law practitioner must be conversant with a variety of statutes, regulations, and ordinances that pertain to these types of matters, as well as administrative matters such as licensing
- We believe that marijuana law is one of the most interesting, diverse, and dynamic areas of legal study. Yet as a legal discipline, marijuana law is a quite recent phenomenon. Only in the past few years have legal scholars begun to think of it as an independent field of law, worthy of study in its own right. Prior to that, marijuana law was principally associated with criminal law, and grouped within the category of drug crimes generally.
- Over the past few years, marijuana law has become an important legal subject for several reasons. First, marijuana users are prevalent, estimated to comprise about 30 million Americans. The laws regulating its use in the United States, moreover, are diverse, complex, and often, as noted above, contradictory. Second, the law of marijuana touches most major areas of American law. It has important implications for criminal law, of course, but also for the law of federalism, criminal procedure, the constitutional structure of government, civil liberties, local law, tribal law, interstate commerce, international treaties, federal taxation, federal banking law, and so on. Third, it is currently the subject of an important political debate in the United States as to its consequences for criminal justice, public health, public policy, and public revenues. For all of these reasons, marijuana law has become an important legal discipline. And while many of the individual strands of marijuana
- In this chapter, we discuss the parameters of marijuana law and provide an overview of the various issues that arise under it. Accordingly, § 1–2 provides a brief description of what “marijuana law” includes and discusses why it is an important area of law. And § 1–3 provides a bird’s-eye view of the types of legal issues that are currently being worked out by Congress, state legislatures, and the courts in connection with marijuana regulation.
- When people think of “marijuana law,” they tend to think of criminal laws regulating the use, possession, and distribution of cannabis. And those laws certainly raise a number of important and interesting issues. But there is actually much more to marijuana law than just those criminal issues. In fact, marijuana law is one of the more far-reaching of legal topics because it necessarily implicates a number of different areas of law.
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Chapter 25. Marijuana in American Culture 41 results (showing 5 best matches)
- The cultural manifestations of marijuana reviewed so far represent depictions by those on the margins of society who relished the opprobrium of mainstream culture. As a result much of their descriptions of marijuana are celebratory. Even the anti-marijuana propaganda movies of the 1930s and 1940s were later embraced by the cannabis movement as reflecting the hypocrisy of the United States establishment. This favorable depiction of marijuana was counteracted not so much by cultural influences as by law enforcement, especially the DEA, which has been vocal in opposition. Certainly mainstream attitudes towards marijuana during this period were more in line with those of law enforcement, which saw psychoactive drugs, including marijuana, as a great danger to society. In other words there was wide popular support for maintaining marijuana as an illegal drug.
- Cultural views of marijuana have played an important role in its legal status. Initial perceptions of marijuana as a foreign, poisonous weed contributed to its prohibition as a dangerous drug. Its alien status was seemingly confirmed by its adoption—often under colorful nicknames—by jazz musicians and beat poets. Federal campaigns against marijuana in the 1930s and 1940s were associated with salacious movies that depicted marijuana as a narcotic of the lascivious, the crazed, and seducers of American youth. Public intellectuals praised marijuana for expanding consciousness and transgressing norms. When embraced by the 1960s counterculture, and associated with the hippie and antiwar movement, marijuana became a proxy for protest—and the Nixon administration struck back. It was classified under Schedule I of the newly enacted CSA in 1970, with the most dangerous narcotics. As drug use proliferated with middle class youth, law enforcement proclaimed marijuana prohibition as a lynchpin...
- The change in cultural perceptions is well-illustrated in the travails of politicians who admitted to smoking marijuana. In earlier decades, exposure as consuming a Schedule I controlled substance would have ended any political career. After all, it is politicians and judges who made and maintained the harsh marijuana laws. But with the changing perceptions of marijuana, not only did admission of early experimentation with marijuana not curtail the careers of politicians, but some used it in an effort to obtain votes—a tactic unthinkable with other Schedule I drugs.
- Perceptions of marijuana as an alien and destructive agent contributed to its prohibition in the early 20th century. In the western states, where marijuana was first prohibited, it was linked to Mexican culture and Mexican immigrants. The word “marihuana” is itself derived from Mexican usage, as are such nicknames as oregano, marimba, Rosa Maria, Mary Jane ( ), Acapulco Gold, porro, mota, bacha, and sinsemilla. The association between Mexico and marijuana contributed to racist sentiments and hence its prohibition. For example, a Texas state senator justified the passage of Texas’s first anti-marijuana law in 1919 because “all Mexicans are crazy, and this stuff is what makes them crazy.”
- The legal system took note in various ways of the bond over marijuana use formed between hippies and radical activists, of the growing use by middle class youth, and of the prevalence of marijuana in counterculture music. This is exemplified by the saga of John Sinclair. In an interweaving fashion, rock music, mass protests, pamphleteering, activism, and pressure on the courts influenced the course of marijuana law.
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Chapter 18. Professional Responsibility Issues for Lawyers 44 results (showing 5 best matches)
- The divergent status of marijuana under federal law and state law, in those states that have legalized medical or recreational marijuana, creates special problems for lawyers. The ABA’s Model Rules of Professional Responsibility, which have been adopted by nearly every state (California being the important exception), prohibit lawyers from advising clients to engage in criminal conduct, and from assisting clients in conduct the lawyer knows is criminal. They also provide that it is professional misconduct for lawyers themselves to engage in criminal conduct. Because marijuana possession and distribution are illegal under federal law, lawyers in marijuana-legal states arguably violate the former prohibition when they assist marijuana-related businesses with their legal affairs. And they arguably violate the latter when they themselves partake of marijuana or invest in marijuana-related businesses, even though these activities are legal under state law. These potential conflicts have...
- Another significant issue that arises with respect to a lawyer’s ethical duties in marijuana-legal states is whether a lawyer violates the rules of professional responsibility through the lawyer’s personal use of marijuana, even though it is in accordance with state law. The model rule that is arguably implicated by such conduct is Rule 8.4, which states as follows:
- At least one state bar has indicated that a lawyer’s personal use of marijuana may constitute professional misconduct. In 2014, the Ethics Committee of the North Dakota State Bar was called upon to interpret Rule 8.4 in the case of a North Dakota attorney who wished to move to Minnesota to participate in a medical marijuana treatment program there, while still maintaining his license to practice law in North Dakota. The Committee ruled that this conduct would violate Rule 8.4. Noting the supremacy of federal law that criminalizes marijuana use, and the fact that North Dakota law did not allow the use of medical marijuana, the Committee concluded that “if [the] Attorney purchased, possessed, or ingested marijuana in Minnesota, Attorney would be violating federal law each and every time Attorney did so. In other words, Attorney would be engaging in a ‘pattern of repeated offenses’ that indicates indifference to legal obligations and constitutes a violation of
- Notwithstanding paragraph (c), a lawyer may counsel and assist a client regarding Oregon’s marijuana-related laws. In the event Oregon law conflicts with federal or tribal law, the lawyer shall also advise the client regarding related federal and tribal law and policy.
- In some respects, this raises a more difficult ethical issue than a lawyer’s personal use of marijuana, since it affects the public and is not a purely personal matter. And thus far, bar ethics committees do not seem eager to render opinions on the topic, probably because the issue is somewhat contentious. In Colorado, for example, a subcommittee of the Colorado Supreme Court Standing Rules Committee that was appointed to address possible rule changes pertaining to the legal use of marijuana recommended a new Rule 8.6 that would have immunized Colorado lawyers from discipline for activities that are legal under Colorado’s marijuana laws, even if they are illegal under federal law. But the state’s Office of Attorney Regulation Counsel opposed the proposed rule, arguing that “the integrity of the bar is diminished by allowing attorneys to cultivate or distribute significant amounts of marijuana in violation of federal law, even if lawful under the state constitution.” The Colorado...
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Chapter 9. Special Federal Jurisdictions 51 results (showing 5 best matches)
- The Indian Country Memorandum is significant in that it signals that the federal government will allow Indian tribes to enact their own marijuana policy. In addition, it requires U.S. Attorneys to pay respect to the sovereign claims of Indian tribes in enforcing marijuana law, a concern that the Department of Justice did not explicitly extend to any of the 50 states. Thus, whereas the memoranda addressed to the states represent a measure of deference to state law, the Indian Country Memorandum envisions an affirmative partnership between federal agencies and Indian tribes in fashioning marijuana law on Indian reservations and Alaska Native villages. In 2015, the Suquamish and Squaxin Island Tribes formed tribal-state compacts with Washington governing legal marijuana on their reservations and opened retail marijuana shops. The Puyallup Tribe signed a compact with the Washington State Liquor and Cannabis Board to open a marijuana testing laboratory.
- As is evident from the discussion in this chapter, the status of marijuana law varies dramatically, even in jurisdictions where Congress has exclusive or primary legal authority. These complexities make for a somewhat confusing pattern in federal domestic and overseas lands and creates potential dangers for the unsuspecting user of marijuana.
- In the context of marijuana law, this makes the dominant actors in Indian Country, the federal government and the Indian tribes themselves. Drug and alcohol abuse have been an endemic social problem in the 567 federally recognized American Indian and Alaska Native tribes and villages; use of marijuana is widespread. Approaches to marijuana have varied among different tribes, but the controlling law is the CSA.
- 1) preventing distribution of marijuana to minors; 2) preventing revenue from sale of marijuana going to criminal enterprises; 3) preventing diversion of marijuana from states where it is legal to other states; 4) preventing marijuana activity from being used as a cover for trafficking of illegal drugs; 5) preventing violence and the use of firearms in marijuana activity; 6) preventing marijuana-impaired driving and other adverse public health consequences; 7) preventing growing of marijuana on public lands; and 8) preventing marijuana possession and use on federal property.
- On October 28, 2014, the DOJ issued “Policy Statement Regarding Enforcement of Marijuana Laws in Indian Country,” (Indian Country Memorandum) signed by the Director of the Executive Office for U.S. Attorneys, Monty Wilkinson. It was based on Cole Memo II, which gave guidance to U.S. Attorneys as to enforcement of marijuana law. Despite the national scope of the CSA, which prohibits marijuana activity for all purposes, Cole Memo II acquiesces to a large extent to states legalizing marijuana for medicinal or recreational purposes. The Indian Country Memorandum also acquiesces in Indian Country marijuana legalization, so long as the same eight federal priorities are ensured:
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Chapter 19. Taxation of Marijuana-Related Businesses 48 results (showing 5 best matches)
- Tax professionals servicing marijuana businesses need to be wary of both state disciplinary rules and federal prosecution, even in marijuana legalizing states. State accounting boards require “good moral character” of accountants practicing in their state. As of now it is a somewhat unresolved question whether providing accounting services to a marijuana business indicates bad moral character as a violation of federal law. Seven state boards of accounting have issued guidelines for certified public accountants servicing marijuana businesses: Colorado, Connecticut, Florida, Maryland, Nevada, Oregon, and Washington. American Institute of Certified Public Accountants (AICPA), “An Issue Brief on State Marijuana Laws and the CPA Profession” (Jan. 8, 2016). All seven states have advised CPAs that servicing marijuana businesses does not indicate bad moral character and thus require disciplinary action against them. Although the accounting boards of the remaining 43 states have not yet...
- The seemingly harsh application of federal tax laws to marijuana businesses has given rise to several legal challenges. The most obvious challenge is that marijuana businesses have been legalized in many states, a situation not contemplated when § 280E was enacted. So, for example, nonprofit Harborside Health, the largest medical marijuana dispensary in the world, contested in Tax Court in 2016 a $2.4 million notice of deficiency for disallowed deductions on the grounds that Congress did not intend for § 280E to apply to legal marijuana businesses, which did not exist at the time of passage. However, a similar argument was rejected in (“That Congress might not have imagined what some states would do in future years has no bearing on our analysis. It is common for statutes to apply to new situations.”). The decision by the Department of Justice not to interfere with state legalization regimes also was held to have no bearing on the application of § 280E. ...or selling of marijuana...in
- The IRS has ruled that a non-profit entity that distributes medical marijuana in compliance with state law cannot qualify for federal § 501(c)(3) status because it is illegal under federal law. I.R.S. Private Letter Ruling 201224036 (June 15, 2012). Likewise, a proposal that marijuana sellers can avoid the § 280E disallowance of deductions by forming tax-exempt § 501(c)(4) organizations—social welfare charities—is unrealistic. While a nonprofit, medical marijuana business actively involved in community improvement could conceivably satisfy some requirements to be a § 501(c)(4) social welfare organization, it is unlikely that the IRS will find any social benefits of a marijuana business sufficient to override its violation of federal law. However, the IRS has approved tax-exempt status for several marijuana churches, including the Indianapolis First Church of Cannabis and the Colorado Green Faith Ministry.
- This changed in 1996, when California became the first state to legalize marijuana for medicinal purposes. Suddenly there was a business that, while illegal under federal law, openly filed taxes and would be eligible for deductions of legal expenses but for , which draws no distinction between states that have legalized marijuana and states that have not. As marijuana legalization has proliferated in the United States, many marijuana businesses now find themselves prohibited from taking any deductions for ordinary and necessary expenses deemed legal by the states in which they operate. Commentators have pointed out the anomalous tax situation in which marijuana businesses find themselves in comparison with strictly illegal enterprises. To take a hypothetical, a business which engages in an activity that is illegal under state law, such as gambling, can deduct the cost of its legal business expenses, but a marijuana business deemed legal by the state in which it operates could not...
- Section 280E of the federal tax code denies all deductions incurred in connection with a business trafficking in a Schedule I or II controlled substance, regardless of state law. As marijuana growers, dispensaries, and providers in marijuana legalizing states are the only such businesses operating openly in public view, they are primarily affected by this provision. In addition, tax professionals in those states have to be wary of performing services for marijuana-related businesses, as technically they may be liable for assisting an illegal enterprise under federal law. Although several states allow marijuana businesses to deduct their expenses from state income tax, the effect is relatively negligible compared with that of
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Chapter 4. History of Marijuana Law (Part II—The Slow and Halting Return Toward Legalization) 25 results (showing 5 best matches)
- The final frontier for marijuana liberalization, of course, is full legalization, and since 2012, several states plus the District of Columbia have crossed that historic divide. These states allow full “recreational use” (i.e., “adult use”) of marijuana within certain limits, such as restrictions on possession by those under age 21, restrictions on the amount of marijuana that can be possessed, and restrictions on public use. The first two states to fully legalize marijuana were Colorado and Washington, which both passed ballot initiatives in 2012. Of these two, Colorado was the first to implement its ballot initiative, enacting a regulatory scheme in 2013, and opening the first recreational-use marijuana dispensaries (which are rather similar to liquor stores) in January 2014. In doing so, Colorado in effect became the first government in the world to fully legalize and regulate marijuana ...mistakenly assume that Amsterdam has done this; in fact, however, there are still...
- The year 1970 marked an important milestone in the history of marijuana law in the United States. As discussed in the previous chapter, the United States Supreme Court had struck down the Marihuana Tax Act of 1937 the previous year, leaving a void in the federal criminal law with respect to marijuana. Even before this, however, Congress had commenced hearings on the topic of drug enforcement and control, hoping to modernize and rationalize a diverse group of federal statutes regulating potentially harmful drugs. In large part this was due to changing societal values regarding illegal drug use and its regulation (e.g., shifting the focus away from punishing possession and more toward punishing drug trafficking), as well as an improved scientific understanding of the actual effects of drugs such as marijuana. At the same time, however, the new President of the United States, Richard Nixon, who described drug abuse as “Enemy Number One,” was engaged in a self-proclaimed “War on Drugs,”...
- Decriminalization has also picked up steam at the local level. In a number of states that have not yet decriminalized marijuana, voters in marijuana-friendly pockets of the states have championed local initiatives that make possession of small amounts of marijuana for personal use merely civil infractions. By 2016, in Michigan and Wisconsin alone, approximately 2 dozen municipalities had passed laws decriminalizing simple possession. It is likely that this trend will continue across a number of the states that have not decriminalized marijuana possession statewide.
- These laws varied significantly among the various states, both as to the amount that the medical marijuana user could possess, as well as the manner in which the marijuana could be obtained and consumed. Some states, for example, allowed the creation of medical marijuana dispensaries, some allowed merely the private growing of medical marijuana for personal use or by caregivers, and some were silent as to how marijuana used for medical purposes could be obtained. State laws also varied significantly with respect to the types of medical conditions that come within the scope of the law. Some states limited the ability to obtain a medical license to persons with just a few serious conditions, while other states were less restrictive. California is among the least restrictive, allowing doctors to recommend marijuana for any conditions they think it will help, including such common conditions as anxiety, chronic pain, and insomnia.
- For the most part, state law respecting marijuana marked time during the 1980s, though some states imposed additional restrictions on marijuana trafficking. For example, in the wake of a crack cocaine epidemic, a number of states, following the federal lead, imposed drug-free zones around schools, and imposed harsh penalties for marijuana possession in those zones. No additional states decriminalized marijuana during this time, tracking the nation’s increasing impatience with drug abuse.
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Chapter 2. Marijuana 30 results (showing 5 best matches)
- Notwithstanding this information deficit, a number of states have moved forward in efforts to legalize the medical use of marijuana, even though it remains illegal for all purposes under federal law. The first state to do so was California in 1996. Today, 29 states in addition to the District of Columbia have enacted statutes authorizing the medical use of marijuana, and a handful of other states have enacted statutes allowing marijuana strains or extracts that are very low in THC content to be used for medicinal purposes under very tightly controlled circumstances. ( Chapter 4 for a more detailed discussion of these medical marijuana laws.) Thus far, the federal government has not attempted to shut down these state initiatives, even though they arguably conflict with federal law.
- Opponents of medical marijuana argue that marijuana has adverse side effects that make it unsuitable for medical use. For one thing, it is now generally agreed that marijuana is addictive, and that approximately 10% of people who use it regularly develop a dependence. The withdrawal symptoms associated with removal of the drug, however, are not nearly as severe as they are for the opioids or even alcohol. Second, there has long been a fear that marijuana is associated with psychoses. The evidence is still somewhat inconclusive on this issue, but it appears that THC can exacerbate the psychotic symptoms of schizophrenics, and that it can perhaps trigger episodes of acute psychoses in certain other susceptible individuals. Third, there has been some recent evidence that heavy marijuana use may impair the user’s memory and cause a small but not insignificant decrease in IQ when consumed for a long period of time. This effect seems to be particularly pronounced in young people who use
- As for the mechanics of marijuana use, marijuana products can be ingested in a number of different ways. The most popular of these, in the United States at least, has always involved smoking the plant, although consuming it in edible products (e.g., hashish brownies) has long been a popular option as well. In states that have legalized recreational use of marijuana, such as Colorado, users now have a plethora of options. In addition to selling a variety of different strains of herbal marijuana, dispensaries now offer for sale various edible products, including cookies, brownies, and candies that contain single or multiple “doses” of the drug, as well as marijuana-laced beverages, tinctures, and concentrated extract oils that can be used in vaporizers. Vaporizers (i.e. “vapes”) have become increasingly popular because they are discreet, portable, and allow the user to inhale the cannabinoids without the by-products of combustion. In addition, a newer, more controversial trend in...
- For the most part, medical marijuana is consumed in the same way that recreational marijuana has traditionally been consumed, that is, by smoking, and to a lesser extent, by way of edibles. But vaping, which involves vaporizing marijuana herb or a marijuana extract, has also become a popular option for both medical and recreational users. (Certain states, however, have limited the methods of consumption available to medical users, e.g., by requiring edibles instead of smoking.) In states such as Colorado and Washington that have legalized both medical and recreational marijuana, the medical marijuana is not subject to the same degree of taxation as the recreational marijuana, so it is usually available to medical users at a significantly lower cost.
- As discussed in § 2–2 of this chapter, marijuana has been used for many centuries in India and other parts of Asia as a mild intoxicant, as well as a medicine, and sometimes also as part of certain religious and spiritual practices. But while hemp fiber has been grown for centuries in Europe for industrial uses, the practice of using herbal marijuana as an intoxicant was not introduced into European culture until the middle third of the 19th century, when it also began to be used for medical purposes. Even then, Europe’s interest in experimenting with the drug for purposes of intoxication was mainly limited to the cognoscenti, particularly members of the literary class, who had read about its use as an intoxicant in North Africa. The practice was not really known in the United States until the end of the 19th century, when Mexican laborers and immigrants brought it into the western states. Prior to that, marijuana had been used for the previous few decades as an ingredient in patent...
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Chapter 15. Federal Banking Laws and the Marijuana-Related Business 40 results (showing 5 best matches)
- One of the most challenging aspects of running a marijuana dispensary or other marijuana-related business has been the difficulty of obtaining banking services. The banking system in the United State is highly regulated by federal law. And pursuant to federal statutes and regulations, banks generally cannot deal with illegal businesses. Since marijuana is illegal under federal law, banks are accordingly prohibited from dealing with marijuana-related businesses under federal law.
- The Treasury Department’s Guidance, however, specifies three different types of reports that the depository institutions servicing marijuana-related businesses must file. Specifically, if the financial institution has no reason to believe that a particular client has implicated the Cole Memo priorities, then it should file a “Marijuana Limited” SAR, noting that the institution is filing the SAR solely because the customer is engaged in a marijuana-related business transaction, and that no additional suspicious activity has been identified. Conversely, if the depository institution believes that, based on its due diligence, a marijuana related business customer has engaged in an activity that implicates one or more of the Cole memorandum priorities, or violates state law, it should file a “Marijuana Priority” SAR, providing details regarding the specific transaction(s) it believes to be suspicious. And if a bank or credit union deems it necessary to terminate a relationship with a
- The Guidance requires depository institutions to conduct due diligence for their marijuana-related business clients, including heightened monitoring for suspicious activity. As part of this due diligence, a depository institution servicing marijuana-related businesses must notify the federal government if one of its marijuana-related business customers has implicated one of the Cole Memo priorities or violated the law of the state(s) in which the institution operates. Furthermore, as noted above, depository institutions must, pursuant to regulations promulgated under the Bank Secrecy Act, submit Suspicious Activity Reports (SARs) if they have reason to know that a transaction involves funds derived from illegal activities, such as the illegal sale of drugs. And since marijuana is illegal under federal law, this means that banks and credit unions servicing marijuana-related businesses must routinely file such reports for marijuana-related business clients.
- Some members of Congress have pushed for a more targeted approach to the banking problems currently faced by marijuana-related businesses, introducing legislation that expressly authorizes depository institutions to offer banking services to marijuana-related businesses in states that allow it. Rep. Perlmutter from Colorado, joined by a number of other members of Congress from medical marijuana states, has twice introduced such a bill; the most recent is called the Marijuana Business Access to Banking Act of 2015 ( HR 2076). This bill provides safe harbor to depository institutions that provide banking services to marijuana-related businesses. Specifically, it provides that a federal banking regulator may neither recommend, motivate, provide incentives, nor encourage a depository institution to refuse to offer financial services to an individual, nor downgrade or cancel financial services offered to an individual, solely because the individual: (1) is a manufacturer, producer, owner...a
- A customer appears to be using a state-licensed marijuana-related business as a front or pretext to launder money derived from other criminal activity (i.e., not related to marijuana) or derived from marijuana-related activity not permitted under state law;
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Chapter 16. Employment Law Issues 25 results (showing 5 best matches)
- The Colorado Supreme Court confronted these issues in the 2015 case, . In , the plaintiff was a quadriplegic who had a valid medical marijuana license. He used marijuana to treat painful muscle spasms, at home only, as permitted by Colorado law. Coats was employed as a customer service representative by Dish Network until he failed a random drug test at work one day, at which time he was terminated. Coats argued that his termination was wrongful under a state statute, , which prohibits employers from discharging employees who engage in “lawful activities” off the premises of the employer during nonworking hours. He argued that his medical marijuana use was a “lawful activity” under the meaning of the statute because he was using marijuana pursuant to a valid medical marijuana license. The Colorado Supreme Court, upholding the decisions of the trial court and the court of appeals, rejected Coats’ argument that the term “lawful” under the statute was restricted to activities lawful...law
- Generally, therefore, in the absence of a specific state statute protecting the rights of medical marijuana users in the employment context (such as the New York and Minnesota statutes cited in § 16–2), the law draws a distinction between medical marijuana users and users of potentially impairing prescription drugs. For while there is not a lot of case law on the topic, it appears that most courts in states that have legalized marijuana require an employer to engage in interactive efforts to cooperate with an employee who seeks reasonable accommodations for the potentially impairing effects of prescription medications used to treat a disability. (upholding the trial court’s award of damages for disability discrimination against an employer that terminated an employee for using prescription pain medicine to treat a temporary disability). Thus, until such time as marijuana is rescheduled under the Controlled Substances Act, or otherwise decriminalized under federal law, employers in...
- Other courts have likewise upheld the right of an employer to terminate an employee who tests positive for marijuana use. This is true even though such use took place outside of work hours, even though the employee was treating a disability with the marijuana, and even though the employee had a valid medical marijuana license. In so holding, these courts, like the Colorado Supreme Court in , have pointed to the illegal status of medical marijuana use under federal law, which takes it out of the protections of the Americans With Disabilities Act, (the “ADA”), and its state-law equivalents. (holding that, under Oregon’s employment discrimination laws, an employer was not required to accommodate an employee’s use of medical marijuana, because it constituted an illegal use of drugs under an exclusion to the protections of Oregon’s version of the ADA); (holding that Washington’s medical marijuana statute did not regulate the conduct of a private employer or protect an employee from...
- One other approach employers could take in states that allow medical marijuana use is to simply treat medical marijuana users the same as prescription drug users. In other words, if the employee has a disability, and is using medical marijuana pursuant to a valid license to treat this disability, the employer should work with the employee to find a reasonable accommodation, as long as this does not result in undue hardship for the employer. But while this seems like a sensible approach, it is not one, as discussed in the previous two sections, that most states that allow medical marijuana use are inclined to legally mandate at the present time.
- The seeming harshness of most states’ employment laws with regard to medical marijuana use could be significantly reduced if fewer employers relied on strict zero-tolerance drug policies for marijuana use, and instead relied on alternative means for regulating impairment in the workplace. As discussed in Chapter 17 regarding impaired driving due to marijuana use, there are at least two other major approaches to regulation that are geared toward more accurately gauging impairment in the workplace: (1) the use of limits rather than zero-tolerance standards in administering employment drug tests; and (2) the reliance on behavioral evidence, rather than drug tests, in evaluating on-the-job impairment due to marijuana use. Neither of these approaches is free from difficulties, but at least they both put the focus on impairment at the workplace, as opposed to during the employee’s free time.
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Chapter 17. Impaired Driving and Marijuana 31 results (showing 5 best matches)
- One practical concern that lawmakers have struggled with in states that have legalized medical and/or recreational marijuana is how to discourage impaired driving caused by marijuana consumption. Although there is some evidence that “high” drivers may present less of a hazard overall than drunk drivers (among other things, drunk drivers tend to greatly overestimate their ability to drive, whereas high drivers tend to be more aware of their limitations), there is still a concern among law enforcement officials that increased marijuana use resulting from legalization of marijuana, whether medical or recreational, will result in an increase in traffic accidents and fatalities. Thus, there appears to be a general agreement, even among marijuana legalization advocates (e.g., NORML) that there needs to be a criminal penalty for impairment caused by high driving. The problem arises in devising an accurate and efficient way to detect and measure such impairment.
- limits with regard to one or more prohibited substances. This approach is similar to the approach all the states use with respect to driving under the influence of alcohol. (As discussed above in § 17–2, however, such limits have a less significant correlation with impaired driving caused by drugs such as marijuana than they do with respect to alcohol.) Under a approach, the law presumes (or sometimes just allows a permissive inference) that the driver is operating the vehicle under the influence of a particular drug, such as marijuana, if the driver’s blood level contains an amount of the drug that is greater than or equal to the limit. This is the approach that Washington and Colorado have taken toward regulation of high driving. Both states impose a limit of 5 ng/ml of THC to measure impairment from marijuana. The two states differ a bit in how this limit works, however. Washington’s limit establishes a legal presumption; therefore, if a driver with a THC blood level of 5 ng...
- In , the Supreme Court of Arizona narrowed the meaning of the word “metabolite” in the statute, holding that it referred only to those metabolites that actually cause impairment of driving. In that case, the driver (who did not have a medical marijuana license) had smoked marijuana the day before, and his blood test upon arrest revealed no active THC in his blood, but only a trace of an inactive metabolite, formed upon the breakdown of THC in the body. The court looked to, among other things, the Arizona Medical Marijuana Act in holding that the state’s interpretation of the statute to include non-impairing metabolites worked an absurd result, since a medical marijuana user may have traces of such metabolites in the user’s blood for a month or more following use. Therefore, the court concluded “that the ‘metabolite’ reference in
- The other states that allow medical marijuana use have similarly varied laws. Some rely on the traditional behavioral test for impairment, some set limits for THC blood level, and some employ zero-tolerance standards, though generally those in the last category make some exception or qualification for marijuana.
- In a subsequent case a year later, the Arizona Supreme Court again narrowed the reach of the statute. . It held that, as applied to a medical marijuana user, § (A)(3) of the statute, read in conjunction with the Arizona Medical Marijuana Act, allowed liability only where the amount of cannabis or an impairing metabolite of cannabis was in a quantity capable of causing impairment. Thus, there is an affirmative defense available to medical marijuana users in Arizona who are arrested for driving with traces of marijuana in their body. If they can show that the amount of marijuana was not capable of causing impairment, then there is no liability. 361 P.3d at 378.
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Chapter 5. The Controlled Substances Act of 1970 61 results (showing 5 best matches)
- The CSA is the most significant legislation regulating drug and marijuana use in the United States. It establishes a closed registration system for all substances it controls, regulating categories of drugs and punishing use not in accordance with the Act. Because marijuana is controlled in Schedule I, the CSA does not so much regulate as prohibit marijuana. Although states have enacted laws allowing marijuana use for medical and recreational purposes, and although the federal government has announced that it will accommodate such laws, marijuana activity remains no less a serious federal crime.
- Because the CSA is a hybrid of public health measures and criminal law enforcement, scheduling of marijuana is somewhat anomalous. The crucial factor in classifying marijuana is whether it has currently accepted medical use. If a controlled substance has no currently accepted medical use, it must be placed in Schedule I, regardless of any other factor.
- Although the National Commission on Marihuana and Drug Abuse, in its March 22, 1972 Report, “Marihuana: A Signal of Misunderstanding,” established by the CSA at inception, recommended decriminalizing marijuana, it remained on Schedule I. The DEA subsequently denied four petitions to reschedule marijuana. In 1972, the newly formed National Organization for the Reform of Marijuana Laws (NORML) launched a high profile petition to reschedule marijuana. Although the petition was summarily dismissed by the DEA, federal courts ordered the DEA to begin a medical and scientific inquiry as provided for in the CSA. In 1988, DEA Chief Administrative Law Judge Francis Young concluded that marijuana was safe for therapeutic purposes and should be reclassified as a Schedule II
- The passage of the CSA was also significant in spawning similar statutes in the 50 states, which are modeled after its provisions. Most states enacted a version of the CSA as their governing law in the early 1970s. (Two states retained the Uniform State Narcotic Drug Act.) Thus, the CSA replicated itself at the state level, imposing a fairly uniform nationwide regime prohibiting and penalizing marijuana. Although this uniform scheme has changed with states decriminalizing marijuana possession, and later legalizing medicinal and recreational marijuana, state controlled substance acts remain the underlying framework for laws controlling marijuana.
- Hence, under the CSA, marijuana cannot be prescribed by a physician for any purpose, and no state law authorizes physicians to do so. (Instead, state medical marijuana laws require a “physician recommendation”.)
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Chapter 7. Challenges, Defenses, and Exemptions to the CSA 52 results (showing 5 best matches)
- In , the Ninth Circuit held that the Second Amendment does not protect the rights of unlawful drug users, which would include marijuana users, to bear arms. Likewise in , the court found that a medical marijuana card holder’s Second Amendment rights had not been burdened, even though she did not actually consume marijuana. In that case, a possessor of a Nevada medical marijuana registry card claimed that ATF was denying her right to buy a gun although she did not in fact consume marijuana, even though Nevada authorized her to do so. She held the card largely to make a political statement. Nevertheless, the ATF instructs firearms sellers that they cannot sell firearms to persons “in possession of a card authorizing the possession and use of marijuana under State law.” The court held that “there may be some small population of individuals who—although obtaining a marijuana registry card for medicinal purposes—instead hold marijuana registry cards only for expressive purposes. But it...
- In 1996, California became the first state to legalize the medical use of marijuana. Plaintiffs Angel Raich and Diane Monson were California residents who had been consuming marijuana for several years to alleviate serious medical afflictions. Their use was permitted by California law, as it was recommended by physicians. Indeed one of their physicians testified that conventional medicine had proven ineffective, that marijuana alleviated their symptoms such that they could function on a daily basis, and that without marijuana, their condition would deteriorate and perhaps prove fatal. One plaintiff grew her own marijuana; the other was supplied with locally grown marijuana at no charge. The DEA seized and destroyed the plaintiffs’ marijuana plants. The plaintiffs claimed that their personal use of marijuana for medical reasons was in compliance with California law because it was purely ...the powers of Congress granted in the Commerce Clause. The Ninth Circuit enjoined the... ...a...
- [A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.
- The Compassionate Investigational New Drug Program (IND) commenced in 1978. It was implemented under the authority of the FDA and supplied cannabis cigarettes to a limited number of patients with medical needs. It began as a result of a federal lawsuit. Robert Randall, afflicted with glaucoma, was arrested in 1976 for cultivation and consumption of marijuana. D.C. Superior Court Judge James Washington dismissed the charges, finding that smoking marijuana presented no harm to Randall and might bring medical benefits. Although the U.S. Supreme Court would eventually reject such a medical necessity defense, the DOJ and other federal agencies reached a settlement with Randall in 1978. As a result of these “Randall lawsuits,” the FDA created the IND program, administered by the National Institute on Drug Abuse (NIDA). It allowed a limited number of patients like Randall, victims of disorders which they claimed could be alleviated by marijuana, to obtain FDA-approved marijuana. The marijuana
- Courts have found some free speech protections for physicians in the area of marijuana. The courts have decided that there is no free speech right for a physician to actually marijuana in contravention of the CSA. However, there is also an issue as to whether physicians advising patients that they will benefit from use of marijuana constitutes incitement of criminal activity that is outside of First Amendment protection. The distinction has generally been drawn between expressing opinions about the benefits or even necessity of consuming marijuana, and providing actual means for patients to do so. (In some ways, this resembles the distinction between a physician’s “recommendation,” allowed in state legalization regimes, and a physician’s “prescription,” which is not provided for.) In the most prominent case, , the Ninth Circuit Court of Appeals found that physicians have a First Amendment right to tell their patients that they would benefit from use of marijuana. However, if the...
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Chapter 3. History of Marijuana Law (Part I—The March to Total Prohibition) 26 results (showing 5 best matches)
- At the end of the Civil War, marijuana was subject to less regulation in the United States than tea; a century later, the mere possession of even a small amount of marijuana could result in years of imprisonment. This chapter discusses how that dramatic change in the law transpired.
- It was also during this time that a majority of the states enacted laws prohibiting the non-medical use of marijuana. By 1929, 24 states had prohibited the non-medical use of marijuana (i.e., required a prescription for its use), and by 1933, another 9 states had followed suit. The impetus for outlawing the non-medical use of marijuana during this time was a perception in many state legislatures that burgeoning marijuana use was causing significant increases in crime and other social problems, particularly among members of certain ethnic groups. While cannabis had been grown in the United States for centuries, the practice of smoking marijuana here was quite recent, having been introduced by immigrants and workers from Mexico (and, to a lesser extent, by immigrants from the Caribbean), where the practice was well established. Newspaper accounts of the time reflect quite racist, and no doubt exaggerated, accounts of crazed men, under the influence of this new drug, committing all...
- Commissioner Anslinger had initially pushed for the inclusion of marijuana within the coverage of the Uniform Narcotic Drug Act, describing the drug as a “national menace.” And the issue was hotly debated through the five drafts of the Act. Ultimately, however, the Commission decided to include a marijuana prohibition as a separate, optional provision. Thus, states adopting the Act could choose for themselves whether to include marijuana within the Act’s prohibition on non-medical use of narcotics, along with the opiates and cocaine. Approximately two-thirds of the states that adopted the Act ultimately decided to do so. In addition, several other states that had not previously prohibited marijuana use and had declined to include marijuana within their version of the model act, nevertheless enacted separate provisions criminalizing non-medical marijuana use. By 1937, therefore, nearly every state had criminalized non-medical marijuana sale and possession in one way or another. (And...
- The Marihuana Tax Act of 1937 remained the federal government’s principal tool for combating marijuana trafficking until the United States Supreme Court struck the statute down as unconstitutional in 1969. Between 1937 and 1969, there were no major initiatives on the marijuana-law front, except, as discussed below, for the imposition of increased penalties and mandatory sentencing laws in the 1950s. Ironically, during the World War II years, the federal government actually encouraged the restricted cultivation of (hemp) cannabis in order to make up for a military shortage of rope.
- The first regulations affecting (albeit indirectly) the sale of marijuana were accordingly state-enacted “poison laws” that imposed labeling and other requirements on patent medicines sold in pharmacies. At the urging of the American Medical Society, approximately two-thirds of the states enacted poison laws in the period between 1870 and 1900. The concern motivating these laws was a lack of consumer awareness of the types of potentially harmful substances that were often contained in the patent medicines, including strychnine, arsenic, and prussic acid, as well as psychoactive substances such as opiates, cocaine, marijuana, and alcohol. A patent medicine containing “soothing syrup” to help infants sleep better, for example, might contain, unbeknownst to the child’s parents, a significant amount of alcohol, or even an opiate. Thus the state-enacted poison laws typically required labels listing each ingredient in the patent medicine, as well as ...as a skull-and-crossbones symbol...laws
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Chapter 21. Marijuana and Other Drugs 32 results (showing 5 best matches)
- In undertaking such a re-assessment, it would seem helpful to consider how relevantly similar substances are treated under the law, and to examine the rationale, if any, for treating marijuana differently from these substances. Of course, as discussed in Chapter 2, there really are no drugs that are all that similar to marijuana. It is a relatively unique substance, and it is this uniqueness that has, to a large extent, made a rational regulatory scheme for the drug challenging. Nevertheless, there is value in thinking about the way substances that are at least somewhat similar to marijuana are regulated, as these provide at least partial precedents for marijuana regulation, even if there are no direct corollaries. And thus they may shed some light on the best way for governments to handle marijuana.
- Since 1970, marijuana has been included as a Schedule I drug under the Controlled Substances Act, meaning that, under federal law, it is deemed to be a dangerous drug, with no accepted medical use, and a high potential for abuse. Perhaps the main theme of this book has been the rejection of that view in recent years by a large portion of American society, and corresponding efforts on the part of many states and municipalities to work around federal law and to allow the local use of marijuana as a medicine, and sometimes also as a “recreational” intoxicant. In our view, this conflict between federal and state/local laws argues for a re-assessment as to how marijuana should be treated under the law.
- In making this determination, the principal focus needs to be on the efficacy of marijuana as a medicine, since, as discussed in the previous section, it is reasonably clear, given the present state of medical knowledge, that the prescription narcotics are overall more dangerous than marijuana, and that they have a greater potential for dependence and abuse. Thus, using the federal government’s treatment of these prescription narcotics as a legal precedent, it would seem that opponents of medical marijuana would have a difficult time arguing against according marijuana the same status as these prescription narcotics, unless marijuana has no significant medical value. To be sure, the safety of marijuana has not been extensively proven in the types of clinical trials the FDA requires; however, the evidence that is out there, and it is substantial, indicates that marijuana is safer and less prone to addiction and abuse than many prescription narcotics.
- In assessing how marijuana compares to any other drug, safety concerns are paramount. So the starting point in terms of whether it makes sense to treat marijuana the same as the OTC drugs, such as analgesics, is whether marijuana is potentially more harmful. To a large extent, as discussed in Chapter 2, this question remains unresolved due to the lack of comprehensive research on the effects of marijuana. Based on the limited research that is available, however, it does appear that marijuana has some potentially deleterious effects. As discussed further in Chapters 2 and 22, for example, there is evidence that chronic marijuana use may hurt long-term memory and even diminish IQ. There is also some evidence that it may affect the brain in such a way as to diminish ambition in the user. And there is evidence that it can trigger acute psychotic episodes in susceptible individuals, and trigger a worsening of psychotic symptoms in schizophrenics.
- Recreational drugs are those taken solely for pleasure or their intoxicating effects. Marijuana is unique among the drugs discussed in this chapter insofar as it is used both recreationally and medicinally. This alone may justify treating marijuana differently from the other drugs discussed in this section. For even if marijuana is substantially similar to these other drugs for purposes of recreational use, marijuana’s medical efficacy arguably makes it more appropriate to treat marijuana the way the prescription drugs discussed in § 21–5 are treated. Thus, this section focuses just upon marijuana’s potential for recreational use. The previous section compared marijuana to the recreational drugs that are currently legal in the United States: tobacco and alcohol. This section compares marijuana to some common recreational drugs that are presently illegal throughout the United States.
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Chapter 24. Foreign Law Approaches 56 results (showing 5 best matches)
- This chapter summarizes the law of marijuana outside of the United States and recent international trends. Section 24–2 takes a broad view, surveying the world’s most populous nations, as well as those in the forefront of marijuana reform. And § 24–3 summarizes trends in foreign cannabis law and the reaction of U.N. monitoring agencies. (This chapter generally refers to marijuana as “cannabis” to reflect international law usage.)
- The regulation of marijuana is a global phenomenon, as is marijuana consumption. Reflective of its worldwide prevalence, marijuana goes by distinctive names such as weed, hashish, ganja, hierba, bhang, kief, maconha, charas, and the like. The U.N. Office on Drugs and Crime 2016 World Drug Report estimated that 183 million people used marijuana in 2014. Historically, marijuana consumption is known to most cultures for many purposes, including medicinal. On the Indian subcontinent, marijuana is part of the traditional Ayurvedic systems of medicine, a use that was accommodated in the first international anti-drug regimes. Marijuana was significant in ancient Chinese medicine and agricultural production as well; manufactured hemp fibers dating back 12,000 years have been excavated from an archaeological site in what is now Taipei, Taiwan. In addition to smoking marijuana, traditional cultures have consumed it in various other manifestations, e.g., as a beverage mixed with foods such as...
- —Cannabis is not historically prevalent in Russia. Although cannabis laws are strict, possession of small quantities has been partially decriminalized. In August 2015, the Russian government temporarily banned the Wikipedia internet site over an article about marijuana that it claimed included instructions on how to make a form of hashish.
- Marijuana is illegal in Canada under the 1996 Controlled Drugs and Substances Act, S.C. 1996, c. 19 (Can.). However, access to medical marijuana was formalized in the 2001 Marihuana Medical Access Regulations (MMAR), which permitted cannabis for end-of-life patients and patients with debilitating symptoms resulting from medical conditions. The MMAR was replaced by the Marihuana for Medical Purposes Regulations (MMPR) on April 1, 2014.
- MARIJUANA REGULATIONIN OTHER COUNTRIES
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Chapter 10. International Treaty Obligations of the United States 28 results (showing 5 best matches)
- According to both international and domestic law, changes in U.S. law as to marijuana have to take into account these treaty obligations. Because the United States has sovereign powers vested in both the national and state governments, two questions arise. The first is whether the federal government can mitigate its sanctions against marijuana, for example by transferring marijuana in the Controlled Substances Act to Schedule III, or an even less restrictive Schedule, without violating international law. The second question is whether individual American states can legalize marijuana without causing the United States to fall into violation.
- However, there is some debate as to what constitutes a violation. International law does not rigidly control the marijuana regime of the United States or of any other nation. The treaties have built in a good deal of flexibility; each nation has to enact the treaties with specific provisions. In addition, the Single Convention allows each country to take into account its own “constitutional principles and basic concepts of its legal system,” and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances allows a nation to take into account “provisions of its domestic law and its extradition treaties.” For example, the Netherlands ratified the 1988 Convention accepting the imposition of criminal penalties, but only in accord with Dutch criminal law and policy. Uruguay justified its legalization of marijuana on its commitment to human rights. In 2015 the Mexican Supreme Court issued a ruling, upholding a right to grow marijuana for... ...in...
- As to state law, the international treaties have relevance as well. Certainly treaties are addressed primarily at the national level because most nations have a unitary legal system—that is, a system of centralized, national laws, in contrast to the U.S. system of multi-sovereignty. The international drug treaties are binding on American states under the Supremacy Clause, as is the CSA. In fact, an argument can be made that international treaties are even more restrictive in the sense that while § 903 of the CSA disclaims intent to preempt the field of marijuana except for a positive conflict, the treaties obviously do not mention similar flexibility as to the law of the 50 states. If the majority of states were to legalize marijuana for recreational purposes—a purpose not allowed for in any of the international agreements—it would seem difficult to say that the United States is in compliance, simply because it has a federal drug law on its books, although not enforced.
- For the United States, noncompliance with the international drug treaties, even if permitted by interpretation of domestic law, would have a dramatic effect. Although the international treaties contain sanctions for parties that violate its obligations, e.g., Article 14 of the Single Convention and Article 19 of the 1971 Psychotropic Convention, these sanctions are unlikely to be applied to the United States. Afghanistan is currently the only nation under sanction, because of widespread cultivation of opium poppy. However, the U.S. is widely perceived as the prime mover in the international treaties, and has been vocal in keeping cannabis center stage. If the U.S. were to abrogate its international treaty obligations as to marijuana, either in law or by example, the international anti-marijuana regime would lose much of its force. For example, Mexico’s former President, Felipe Calderon, declared that the United States has “no moral authority” to insist that other countries enforce...
- The DEA has argued that marijuana can only be rescheduled under the CSA if the WHO or the ICNB first reschedules marijuana under the Single Convention. , revolved around a petition to reschedule marijuana under the CSA. The DEA opposed rescheduling, in part because the Single Convention classifies marijuana as a Schedule IV dangerous drug with uncertain therapeutic benefits. The court, by and large ruling for the DEA against rescheduling, cited the deference that the CSA itself pays to international obligations, overriding procedures that could otherwise be taken to reschedule. “If control is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations.” CSA, § 811(d)(1). In other words, the Attorney General is to place cannabis in the minimum schedule to satisfy international law,...
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Chapter 23. Policy Arguments for and Against Legalization 30 results (showing 5 best matches)
- A remarkable aspect of the political debate over marijuana is how much has taken place at the ground level rather than in legislatures, especially in Congress. Although the classification of marijuana as a Schedule I drug is the dominant factor in U.S. marijuana law, few bills that have addressed this issue have made it out of Congressional committee or have been debated on the floors of Congress. Likewise, most state legalization of marijuana has been the result of voter initiatives and referendums rather than bills initiated by legislators. Politicians apparently see great risks from being on either side of the marijuana debate.
- This also raises the fundamental question as to whether marijuana law should be nationalized. States can be permitted to have different legal regimes as to marijuana, reflecting the notion that states are a laboratory for social policy. But as marijuana is easily portable and easily trafficked, there is an inevitable tension with marijuana being legal in some jurisdictions and not others. (
- As the legal systems of the United States overlap geographical areas, the most important legal question concerning marijuana reform is jurisdictional. Most of the discussion above involves legalizing marijuana at the federal level. But it may be sufficient for marijuana advocates if voters legalize marijuana in the vast majority of states, for both medical and recreational purposes, without changing federal law. This would have the benefit (or danger) of allowing marijuana to bypass the expensive FDA approval process. If so, it would seem necessary to codify the DOJ’s recent policy of conditional non-enforcement, for example, with legislation that allowed states to opt out of the CSA. A step in that direction has already been taken with Congressional defunding of DEA crackdowns on state medical marijuana and hemp cultivation programs.
- The United States has the highest incarceration rate in the world. With some 5% of the world’s population, it houses about 25% of prison inmates. 2014 statistics indicate that of 700,993 arrests in the U.S. for marijuana activity, 619,809 were for possession only (88%). The statistics are similar for the decade 2001 to 2010 with 8,244,943 arrests for marijuana, of which 7,295,880 (88%) were for possession alone. In addition, there is evidence of racial bias in marijuana arrests. Although studies show marijuana use by black and white populations to be roughly similar, the arrest ratio of blacks for marijuana use is higher. For example, in 2010 blacks were arrested for marijuana use at the rate of 716 per 100,000 of the black population, while whites were arrested at a rate of 192 per 100,000 of the white population, an arrest ratio 3.73 times higher.
- If marijuana remains in any of the five federal schedules, it would remain illegal for recreational use. If marijuana were removed from the schedules altogether, it would no longer be a federally controlled substance. It would then no longer require FDA approval and could be used without medical prescription—much like herbal supplements. But even in that case it could still be highly regulated by law, as alcohol is. For example, almost every proposal for legalization would still restrict the use of marijuana by minors or by those required to exercise psychomotor skills safely, such as in driving a vehicle or operating machinery.
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Chapter 22. Medical Arguments for and Against Legalization 38 results (showing 5 best matches)
- In its most recent denial of a petition to initiate proceedings to reschedule marijuana in August 2016, the DEA relied on a June 25, 2015 evaluation by the Department of Health and Human Services and the FDA of the scientific and medical properties of marijuana. Surveying a wide range of literature, this report concluded that marijuana has harmful psychoactive effects, including behavioral impairment but not psychotic episodes. Physiologically, marijuana smoking can harm the cardiovascular, autonomic, respiratory, and possibly the immunological systems. In contrast, the report found that “no published studies” met FDA criteria for “proving marijuana’s efficacy.”
- If marijuana does not represent a danger to the consumer, then the extensive law enforcement apparatus to suppress marijuana activity is a colossal waste of resources and a burden on society, which falls especially on minorities and the disadvantaged. Millions of Americans have been arrested for marijuana consumption and possession; billions of dollars wasted in police, court, and prison expenditures; and young people diverted into the prison system because of relatively harmless recreational use. Income that goes to criminal and underground suppliers of cannabis could go to more productive uses. In addition, governments would realize a large portion of this money in taxes, a boon to deficit ridden budgets. The overwrought campaign against marijuana has also led to a problematic prohibition against hemp, an undeniably valuable agricultural and industrial resource. Canadian and Chinese farmers produce large quantities of hemp; American farmers are largely shut out.
- Again, the array of studies provides support for arguments on both sides of the question as to whether marijuana produces dependence. A 1994 study found that one in 11 adult users and one in six adolescent users report becoming addicted to marijuana. The IOM Report made a more nuanced conclusion, identifying a distinctive marijuana withdrawal syndrome, but describing it as “mild and subtle” (pp. 89–90). The withdrawal syndrome has both physiological and psychiatric effects, resulting in “restlessness, irritability, mild agitation, insomnia, sleep EEG disturbance, nausea, and cramping” (p. 90). These symptoms, however, were “short-lived,” usually lasting less than a week. Other studies have indicated that in some patients, heavy use of marijuana can create a dependence that can result in antisocial personality and behavioral disorders.
- The fundamental argument in favor of legalization is that marijuana is not dangerous to consumers and has benefits for treating certain medical disorders. Numerous scientific studies, supported by decades of anecdotal evidence, and by centuries of use by non-Western cultures, indicate its effectiveness in relieving anxiety, nausea, and pain and in producing a mild euphoria. Synthetic derivatives of cannabis, such as FDA-approved Marinol, Cesamet, and Syndros, lack the full “entourage effect” of marijuana, and are thus inadequate substitutes. The side effects associated with marijuana are within the range of tolerated medications. Marijuana does create dependence in certain individuals, but withdrawal symptoms are relatively mild. Studies have found marijuana to be less dangerous than alcohol or tobacco, as well as painkillers such as opioids.
- As with the arguments in favor of legalization, arguments opposed to legalization of marijuana depend fundamentally on assessing its effect on health—but conclude that its dangers potentially outweigh its benefits. Although there is evidence that marijuana can provide some health benefits, at least four factors militate against legalizing medical marijuana for that reason. First, no large-scale, FDA-approved scientific study, including the comprehensive 1999 Institute of Medicine Report, has definitively shown that marijuana has significant health benefits, and the FDA has not approved whole plant marijuana in any form as a safe and effective drug. Second, if the evidence is inconclusive, it weighs against a mind-altering drug, rather than in its favor—the FDA process of approval is rigorous for good reason. Third, any medical benefits that marijuana might have are more palliative than curative. Other medicines .... Fourth, regardless of any benefits that may be found, marijuana...
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2017 LEG, Inc. d/b/a West Academic
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Outline 54 results (showing 5 best matches)
- § 17–4Impaired Driving Laws in Medical Marijuana States
- § 1–2What is Marijuana Law and Why Does It Matter?
- § 1–3A Bird’s-Eye View of Marijuana Law
- History of Marijuana Law (Part I—The March to Total Prohibition)
- History of Marijuana Law (Part II—The Slow and Halting Return Toward Legalization)
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Index 154 results (showing 5 best matches)
Title Page 4 results
Center Title 2 results
Table of Cases 8 results (showing 5 best matches)
WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 11 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Robert A. Sullivan Professor of Law Emeritus,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
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Part 2. FEDERAL LAW 1 result
- Publication Date: March 17th, 2017
- ISBN: 9781634599351
- Subject: Food and Drug Law
- Series: Nutshells
- Type: Overviews
- Description: Concise yet comprehensive text that provides an overview of marijuana law. It discusses important issues pertaining to public policy, legal history, constitutional law, criminal law, and jurisprudence, as well as practical legal issues that concern both marijuana-related businesses and individuals, in areas such as banking, employment, tax, bankruptcy, and child custody. The text provides in-depth coverage of federal laws governing marijuana, along with an overview of international, state, and local laws relating to marijuana regulation. It also provides an overview of arguments for and against medical and/or recreational legalization, as well as an analysis of how marijuana compares to other potentially harmful substances, both legal and illegal.