Jared Harrison of Oklahoma was charged with unlawful possession of a firearm after police found marijuana and a handgun in his car while he was driving to work in 2022. Judge Patrick Wyrick of the U.S. District Court for the Western District of Oklahoma dismissed the indictment, agreeing with defense attorneys that the statute banning “unlawful” users of cannabis from possessing firearms violates the Second Amendment of the U.S. Constitution. “The mere use of marijuana carries none of the characteristics that the Nation’s history and tradition of firearms regulation supports,” Wyrick wrote. 

According to a U.S. Supreme Court ruling last year that struck down a gun control law in New York, any restrictions on gun ownership must be in line with a historical application of the Second Amendment. 

The ban against gun ownership by medical marijuana patients is concurrently being challenged in another federal court by several medical cannabis patients. That suit was led by former Florida Agriculture Commissioner Nikki Fried, but she left office in January, and her successor has indicated the agency will no longer be a plaintiff. Will Hall, a private attorney who assumed the case on behalf of the remaining plaintiffs, said he plans to address this new Oklahoma precedent “in our subsequent filings.” 

In Harrison’s case, the prosecution argued that “disarming presumptively risky persons, namely, felons, the mentally ill, and the intoxicated” is in the public interest. Harrison’s lawyers had argued that the portion of federal firearms law focused on drug users or addicts was not consistent with the nation’s historical tradition of firearm regulation, echoing what the U.S. Supreme Court ruled last year in a case known as New York State Rifle & Pistol Association v. Bruen. 

Judge Wyrick rebutted the prosecution in the Harrison case, emphasizing the fact that marijuana use does not carry any of the characteristics that are supported by the nation’s history and tradition of firearm regulation. The use of marijuana, which can be purchased legally (under state law) in more than 2,000 ordinary storefronts in Oklahoma, opined Wyrick, is not inherently violent, forceful, or threatening. It is not a “crime of violence,” nor does it involve “the actual use or threatened use of force.” 

Despite the government’s authority to protect the public from dangerous people with guns, Wyrick insisted that Jared Harrison’s “mere use of marijuana does not indicate that someone is in fact dangerous, let alone analogous to a ‘dangerous lunatic.’”

Laura Deskin, a public defender representing Harrison, said the ruling was a “step in the right direction for a large number of Americans who deserve the right to bear arms and protect their homes just like any other American.” 

There is no clear evidence that medical marijuana patients are any more disposed to engage in violent crime than other groups. On the contrary, the available evidence indicates that medical marijuana is associated with slightly lower crime rates. A federal ban on gun ownership by medical marijuana users would simply penalize those users on the basis of a medical condition for which a physician has recommended cannabis as treatment. 

Judge Wyrick has made clear there is no public interest served by depriving lawful medical marijuana patients of the means to defend themselves. As cases related to medical marijuana users’ right to bear arms continue to pop up across the country, having this ruling as an established precedent is a positive development. 

The post Federal judge: Restrictions on gun ownership violate medical marijuana patients’ Second Amendment rights  appeared first on Reason Foundation.

The Florida Department of Health, which oversees the state’s medical marijuana program, published emergency regulations last month announcing that it will make 22 additional licenses available to operate a medical marijuana business in Florida. That would double the existing number of medical marijuana business licenses and satisfy statutory provisions requiring the number of licensees to grow in proportion to the population of registered medical marijuana patients in the state.

Florida is years behind schedule in making these new licenses available. Last September, a state appeals court judge admonished the Department of Health’s delay tactics, insinuating that agency lawyers had misrepresented their intentions to the court. The judge also noted that nearly five years had passed without the department making new licenses available as it should have.

Unfortunately, the agency foot-dragging seems destined to continue. The new emergency regulations declare that the new medical cannabis licenses will be awarded in so-called “batching cycles,” in which the state can choose to make as few as one license available at a time. Any applicants applying for that single license would need to pay a non-refundable application fee of $146,000 and have five days to prepare an exhaustive license application detailing security, operational and staffing plans, facility designs, and financial holdings of all proposed owners and operators.

Florida’s Office of Medical Marijuana Use estimates that 150 applicants will seek a license. Those that do not win a license in the first batching cycle would need to re-apply in a subsequent batching cycle and submit another non-refundable application fee of $146,000. The agency reserves total discretion to establish its timing for opening any batching cycle.

This move continues years of medical marijuana obstructionism by Florida’s political class. Amendment 2 required Florida to adopt implementing regulations within six months of its 2016 passage. But the legislature elected to provide no guidance during its spring 2017 session, although then-Gov. Rick Scott called lawmakers into a special session to debate the issue that June.

The legislature adopted a statute that prohibited smokable marijuana products—a provision the state courts later ruled violated the intent of Amendment 2. The legislature also limited the initial number of medical marijuana licenses to 10, allowing wealthy owners of citrus processing facilities to secure two of the licenses.

Perhaps most significantly, the statutory provisions prohibit the state’s medical cannabis licensees from wholesaling any products amongst each other. In most states with legalized medical marijuana, a licensee can operate a cannabis cultivation facility at any scale and can manage and wholesale their products to other manufacturers or dispensaries. In Florida, however, full vertical integration is required, which means a medical marijuana business must have large amounts of money needed to build out multiple types of facilities in an industry where federal law still prohibits access to bank loans and other traditional sources of financing. This requirement effectively established barriers for smaller businesses wishing to operate in Florida.

Current Gov. Ron DeSantis has furthered medical marijuana opposition. DeSantis recently noted the pent-up demand for medical marijuana licensees and said he wants to charge more for the privilege of doing business in the state.

“I mean, these are very valuable licenses,” Gov. DeSantis said. “I would charge them an arm and a leg. I mean, everybody wants these licenses.”

The DeSantis administration also issued a new fee schedule for renewing existing cannabis licenses that raises the two-year fee by more than 2,000 percent, from about $60,000 to $1.33 million. 

“Why wouldn’t we take the opportunity to make money for the state based off those [licenses]?” DeSantis asked rhetorically before the increase. At the time, he elaborated, “I do think that would require a statutory change, and I don’t think that’s something we could just do through administrative rule.” Yet, his administration is doing it through an administrative rule.

The amendment to legalize medical marijuana in Florida got over 71 percent of the vote in 2016. Nearly seven years later, Florida’s politicians should finally stop using red tape, fees, and bureaucracy to block businesses that want to provide legally prescribed medication to patients in need.  

The post Florida bureaucrats again stymie state’s legal medical marijuana market  appeared first on Reason Foundation.

The case was dismissed last month by United States District Court Judge Allen Winsor, who did rule that Fried held standing to bring the suit as she holds oversight over both Florida’s concealed carry licenses and medical marijuana programs.

Fried was joined by two plaintiffs who are registered medical marijuana patients and were barred from purchasing a firearm and a third co-plaintiff who is a gun owner with a qualifying medical condition who would like to participate in Florida’s medical marijuana program. The standing of all plaintiffs was affirmed by Judge Winsor because they suffer direct harm from the Justice Department’s enforcement actions. 

The Justice Department, through its Alcohol, Tobacco, Firearms, and Explosives (ATF) Division, bars participants in state medical marijuana programs from owning or purchasing a firearm. One method for enforcing this prohibition is the inclusion of a question on ATF background checks about whether the prospective gun buyer uses illegal drugs. Although marijuana is legal for medical use under some state laws and legal for adult use in some states, it remains illegal at the federal level. By contrast, the use of federally legal pharmaceuticals with intoxicating characteristics, such as oxycontin, is not necessarily a reason for ATF to deny a gun purchase.

In court briefings, DOJ argued that there is a public interest in prohibiting marijuana users from possessing guns and that its regulations are consistent with historical restrictions on the Second Amendment. The department pointed out that the federal government has previously barred Catholics, Native Americans, panhandlers, and the mentally ill from obtaining firearms, so it has adequate historical precedent to bar medical marijuana patients. The Biden administration received backlash for relying on these comparisons and eventually backed off its claims that marijuana use makes individuals more inclined toward crime. Yet, the administration has continued to argue—in spite of the evidence—that medical marijuana patients might be more disposed to engage in domestic violence. 

Central to Fried’s claim is that congressional riders to federal appropriations bills specifically restrict the Justice Department from using any financial resources to impair state-regulated medical marijuana programs. Judge Winsor seemingly dismissed this claim prematurely, arguing that the department can bar gun possession because marijuana possession is a federal crime: 

Regardless of whether Plaintiffs are prosecuted (or whether Congress allocates funds for their prosecution), possession of marijuana remains a federal crime. The Rohrabacher-Farr Amendment at best precludes prosecution now; it does not forever bless the plaintiffs’ actions. 

Winsor’s opinion does not consider that the Justice Department presumably spent financial resources to include its question about marijuana use on ATF background-check forms and pays staff to review these forms. While DOJ might argue that these enforcement actions are related to the regulation of gun ownership and not medical marijuana programs, it clearly has the effect of discriminating against medical marijuana patients using funds appropriated by Congress. On this basis, the ATF’s screening of prospective gun buyers on the basis of whether they use marijuana for medical purposes would appear as a clear violation of congressional appropriations directives. 

Also, there is no evidence that medical marijuana patients are any more disposed to engage in violent crime than other groups. On the contrary, the available evidence indicates that medical marijuana is associated with slightly lower crime rates. Fried expressed her disappointment in August that the Justice Department “would perpetuate such harmful and offensive prejudicial stereotypes that cannabis users are dangerous or mentally ill.” 

As Fried continues the appeal process, cannabis consumers in Florida and elsewhere should remain highly interested in the outcome. After all, any ruling against the Justice Department could result in positive outcomes for medical marijuana patients across the nation. 

The post Nikki Fried is right to sue for medical marijuana patients’ gun rights  appeared first on Reason Foundation.

Those individuals carrying this conviction on their record face potential barriers to engaging in healthy and productive behaviors, including finding employment, attending college, or securing a home or small business loan. So, the mass pardons will accomplish a great feat for these individuals, even if the overall scope and depth of the pardons are limited. 

However, President Biden’s accompanying message and announcements could have much broader and deeper implications for America’s war on drugs and failed experiment with drug prohibition.

The vast majority of marijuana possession convictions in the United States are under state law. In his remarks, the president urged governors around the nation to take similar actions to pardon those convicted of simple possession under state laws. 

“Just as no one should be in a federal prison solely due to the possession of marijuana,” President Biden said, “no one should be in a local jail or state prison for that reason, either.”

Further, Biden revealed that he would direct Secretary of Health and Human Services Xavier Becerra and Attorney General Merrick Garland to conduct a review of marijuana’s scheduling status under the Controlled Substances Act. This directive could easily become the most consequential portion of President Biden’s actions.

The Controlled Substances Act directs the Department of Health and Human Services, in concert with the Drug Enforcement Administration, to control the manufacture and distribution of substances believed to hold some potential for abuse. The federal agencies divide these substances into five schedules, supposedly representing those with the most purported potential for abuse to the least. 

Marijuana, along with heroin and LSD, are Schedule 1 drugs, meaning the agencies believe they hold no medical value and a high potential for abuse. Those drugs are strictly prohibited in any form. Drugs in lower schedules may be available with medical prescriptions, as federal agencies have recognized some medical value for those substances. These include drugs like cocaine, methamphetamine, fentanyl, and hydrocodone in Schedule 2 and range down to anti-diarrheal medications in Schedule 5. 

In other words, the federal government’s official position is that marijuana is more dangerous than fentanyl. The Centers for Disease Control and Prevention (CDC), meanwhile, reports that fentanyl is 50 times more powerful than heroin and kills 150 Americans every day.

Moreover, the federal government’s outdated position that marijuana holds no medical value is patently absurd. A recent meta-analysis of medical research published by the Journal of the American Medical Association found marijuana can effectively reduce pain, vomiting, and cellular spasticity. Even the National Institutes of Health, a federal agency, now recognizes the effectiveness of cannabinoids in treating various medical conditions. It’s tough to conclude that marijuana fits the Schedule 1 definition in light of these and other facts.

This, along with the president’s urging, means it is likely marijuana could be assigned to a different schedule or de-scheduled entirely due to the review process. That change would effectively end the national experiment with marijuana prohibition, which was based from the beginning on misrepresentations and a desire to create a new role for federal bureaucrats who had just lost their role as alcohol prohibitionists.

Multiple proposals are circulating in Congress to direct federal agencies to remove marijuana from scheduling under the Controlled Substance Act. However, that feat would not require an act of Congress. The executive branch has always held the authority to reschedule or de-schedule marijuana on its own, either through the agency review process or by simple executive order. Congress has gotten involved only because the executive branch has not pursued either action.

A variety of drug policy reform groups and advocates note that Biden’s steps and pardons are important progress. That said, the Biden administration could have gone further and descheduled marijuana itself, but his initiation of the review process signals a major turnaround for someone who was once a primary sponsor of the infamous 1994 crime bill that stiffened penalties for drug-related offenses and significantly escalated the war on drugs. 

President Biden seemed to acknowledge this last week when he said, “Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs.”

Biden’s pardons and review process are very positive steps, but there is still much more to be done.

The post Biden’s marijuana pardons are a good step, but descheduling marijuana would be a massive step appeared first on Reason Foundation.

“I think it’s something that’s going to really require further study,” Moore claimed, according to Marijuana Moment.

The bill would create a highly limited medical marijuana program in which only patients with certain debilitating medical conditions would be allowed to participate. These include cancer, epilepsy, HIV or AIDS, ALS—amyotrophic lateral sclerosis, Crohn’s disease, sickle cell anemia, Parkinson’s disease, multiple sclerosis, cachexia, severe and persistent nausea, post-traumatic stress disorder, or a terminal illness in which the patient has less than six months to live. Notably absent from this list are broader conditions that make a patient eligible to participate in most state medical marijuana programs, such as severe pain and mental health conditions, including anxiety and depression.

The production side of the medical marijuana bill would be even more restrictive, limiting the total number of available licenses to operate a medical marijuana business to a mere 10 businesses.  Regulators would narrow down the field to 20 applicants and submit them to a commission of political appointees, who would select 10 of the 20 recommended applicants.

This selection method would be highly susceptible to political manipulation or corruption, as appointees could select politically connected applicants to receive licenses. A similar commission in Michigan was scrapped in 2019 after stories of corruption emerged. All the commission’s duties were consequently folded into Michigan’s Marijuana Regulatory Agency, which immediately improved approval timelines as regulators were instructed to strictly apply rules rather than make arbitrary political decisions.

Each of the 10 applicants ultimately awarded licenses in North Carolina would then be able to cultivate and manufacture medical marijuana products and sell those products through medical marijuana dispensaries they also own.  In other words, vertical integration of the supply chain would be mandatory and no wholesale transfers of medical marijuana products would be permitted between licensees. Each licensee would be allowed to open no more than eight dispensaries, meaning a maximum of 80 dispensaries statewide, which is fewer than the number of counties in North Carolina.

Vertical integration requirements in marijuana laws have proven to be challenging in other states for a number of reasons.  For entrepreneurs who are not well endowed with capital, the capital requirements necessary to outfit large cultivation and manufacturing operations along with multiple retail locations can be staggering.  Legal cannabis businesses generally cannot acquire bank loans or other debt capital due to their products still being illegal at the federal level, so these legal businesses are largely funded through private equity. 

Similarly, some entrepreneurs may have the skillset to operate a marijuana cultivation facility, but not have as much expertise in manufacturing or retail.  Each of these stages of the supply chain is a distinct business operation that demands different forms of expertise and shouldn’t be forced together in marijuana laws.

These are not the only shortcomings of the North Carolina medical marijuana proposal. State lawmakers also proposed barring any applicant from the legal marijuana industry if the majority owner of the business had not been a North Carolina resident for at least two years prior. Residency requirements like this are patently unconstitutional. The U.S. Supreme Court has clearly ruled that they impose unnecessary barriers to interstate trade in violation of a body of law known as the Dormant Commerce Clause.

Beyond that, the medical marijuana bill would impose a 10 percent tax on the gross receipts of all licensees. Several states impose no special excise tax on medical marijuana, even if they do so for adult-use marijuana, in recognition of the fact that patients are purchasing these goods to fill a medical need under the supervision of a doctor. Medical marijuana sales would also have been subject to the general sales and use tax.  These taxes would compound the federal tax penalty for marijuana businesses, creating a price disparity between legal and regulated medical marijuana and illicit marijuana that can undermine the orderly, legal market.

In spite of the bill’s shortcomings, it is somewhat encouraging that North Carolina had the bipartisan votes to move a medical marijuana proposal out of at least one legislative chamber. This comes months after South Carolina lawmakers also passed a medical marijuana bill out of their upper chamber. Together, these incremental signs hopefully represent a changing of attitudes toward medical marijuana in the Carolinas, which are among the last remaining bastions of medical marijuana prohibition in America.

Perhaps with another year and more improvement of the legislative language, the Carolinas can launch functional medical marijuana markets that help patients get the relief they need and increase freedom in those states.

The post North Carolina House won’t take up bipartisan medical marijuana bill passed by State Senate appeared first on Reason Foundation.

Mississippi’s medical marijuana market was supposed to be implemented by July 2021.  However, following its overwhelming passage, the mayor of Madison City filed a lawsuit seeking to invalidate the initiative and was ultimately successful in the Mississippi Supreme Court. 

Madison Mayor Mary Hawkins Butler’s argument was far-reaching. She effectively said that no initiative passed in Mississippi over the past 20 years could be valid because state law requires petitioners to collect a minimum percentage of signatures in each of the state’s five former congressional districts to qualify an initiative for the ballot.  After reapportionment in 2000, Mississippi lost a congressional seat and now only has four, making it impossible to comply with those provisions.  Even though the secretary of state relied on an attorney general’s opinion that it could calculate signature submissions based on the boundaries of the old districts, the state Supreme Court ultimately sided with Mayor Butler and fellow opponents of the medical marijuana initiative to overturn the new law.

Since that time, state lawmakers have debated whether to create a more limited medical marijuana market in Mississippi.  During the 2021 legislative session, Republican State Sen. Kevin Blackwell introduced Senate Bill 2765, which was very similar to the legislatively proposed competing initiative that Initiative 65 beat on the 2020 ballot.  That bill passed the State Senate but died in the House last March.  Relative to the highly popular Initiative 65, it included several key drawbacks:

• Senate Bill 2765 would have expired just three years after its effective date, potentially resulting in an abrupt closure to the state’s new legal medical marijuana program.  Moreover, several of the critical rulemaking requirements included no deadlines for adoption, meaning the executive branch could have run out the clock on the authorizing statute without ever implementing its provisions.
• It would have restricted patient eligibility by excluding sufferers of “chronic or debilitating pain,” “intractable nausea,” and “severe muscle spasticity,” or “another medical condition of the same kind of class…and for which a physician believes the benefits of using medical marijuana would reasonably outweigh potential health risks.” Each of those conditions were allowable under Initiative 65 and medical research suggests marijuana can be an effective treatment for these conditions.
• It would have required applicants for a business license to operate a medical marijuana facility to have been residents of Mississippi for five consecutive years—a clear violation of the Dormant Commerce Clause.
• It would have assigned patients to a single dispensary from which they’d be allowed to purchase medical marijuana based on the patient’s zip code. This anti-competitive provision would render the medical marijuana market similar to public school systems in which some families are zoned into failing schools without any realistic alternatives.
• It would have created a two-tier tax system, with medical marijuana taxed at four percent of the wholesale price and seven percent of the retail price.  By contrast, Initiative 65 would have assessed marijuana taxes at no greater a level than the prevailing general sales tax rate.  Indeed, many medical programs do not impose additional excise taxes because it’s recognized that patients are acquiring a medical product.

As Mississippi looks toward the 2022 legislative session, a new version of marijuana legalization legislation is under debate. That plan seems to face misguided, opposition from Gov. Tate Reeves, who at recent press conference, laid out his items of contention with the medical marijuana proposal.  First, the governor claims the law would allow for too much medical marijuana to be sold:

“If 10 percent of Mississippi residents get a marijuana card, that’s 300,000 Mississippians [that] will have a marijuana card.  Under the law in its most recent draft, you can get up to 3.5 grams of the product.  Now…the proponents of this particular bill love to talk about grams and they love to talk about all these other things that nobody fully understands.  But if you look…3.5 grams would allow for all 300,000 Mississippians with a marijuana card to get up to 11 joints a day.  11 joints a day.  It is my view that when you allow 300,000 Mississippians to get 11 joints a day, or approximately 3.3 million joints a day, or almost 1.2 billion joints over a year, that at some point that has become no longer medical marijuana, but recreational marijuana.  If there are 1.2 billion joints floating around Mississippi in any one year, I believe…it is no longer for the purpose of helping those who badly need it.”

Most pre-roll offerings in regulated marijuana markets include either a half-gram or full gram of marijuana, meaning 3.5 grams equates to somewhere between three and seven joints.  Regardless, few patients or consumers purchase from a dispensary every day and some patients may require greater dosing than others depending on their condition.  Gov. Reeves appears to be substituting his medical wisdom for that of the state’s physicians.

Second, the governor argues that workforce participation will decline if medical marijuana is permitted in the state.  There’s no evidence this is true—other states with medical marijuana laws have not experienced a decline in workforce participation and Mississippi currently has the lowest workforce participation rate among all states even without any form of legal marijuana. In fact, to the extent patients are able to successfully treat severe health conditions, it’s reasonable to think a medical marijuana program could allow some disabled individuals to return to the workforce.

Finally, Gov. Reeves argues, “I think the crime and other things that go along with [legalized marijuana]…are likely to go up.” 

Again, crime rates have not accelerated in states with legal medical marijuana programs.  In fact, legal marijuana programs have been associated with a decrease in crime among border states as demand shifts from illegal drug cartels toward legitimate businesses.

Gov. Reeves argues bill sponsors should “recognize that maybe 1.2 billion joints is too many and significantly reduce the total amount of marijuana that can be received.”

The arguments raised by Gov. Reeves and his allies amount to a series of red herrings.  Mississippi’s lawmakers should be looking to the initiative the state’s voters overwhelmingly approved. Rather than make false claims about medical marijuana, state leaders should liberalize their medical marijuana proposal to bring it in line with the data from other states and what their constituents want.

The post Mississippi’s medical marijuana disaster appeared first on Reason Foundation.

Federal law designates any person who uses marijuana, even for medical purposes, as an “unlawful” user of drugs and therefore someone who is not legally eligible to purchase or possess firearms in any context. The federal government has yet to legalize or decriminalize marijuana but has, for the most part, essentially given the green light to states to run legal marijuana programs, recreational and medical, so long as they place reasonable regulations on the market. But the threat of federal action is real and because cannabis is still considered a Schedule 1 drug, the federal government is essentially forcing medical marijuana uses to choose between legally obtaining a firearm or using their legal medication.

A new paper from Ohio State University and Reason Foundation explores how this is a violation of medical marijuana users’ constitutional rights. Helen Sudhoff, the brief’s author, writes:

The federal government prohibits users of Schedule I drugs from purchasing or possessing a firearm. Despite most states having enacted legal medical marijuana programs, marijuana is still federally illegal and designated as a Schedule I substance with no medical value. Individuals who use medical marijuana in accordance with their state’s licensed programs are nevertheless prohibited from purchasing or possessing a firearm under federal law. As such, the onus is placed on medical marijuana patients to either disclose their marijuana use, which disqualifies them from purchasing a firearm and requires they relinquish possession of all firearms, or misrepresent their status as a medical marijuana user, risking fines or imprisonment.

The restrictions that prevent medical marijuana users from using firearms could be leading to injuries and lives lost. A 2012 report by the Obama Administration found that a reasonable estimate for the defensive use of guns per year could be 300,000.  While that number remains controversial and no firm quantitative method for obtaining that number exists, there is no disputing that guns are used defensively and that those uses often prevent injury and death. 

Restricting gun ownership, therefore, restricts a person’s right to self-defense embedded in the 2nd amendment.  In the 2008 Supreme Court case, District of Columbia v. Heller, the high court defended individuals’ right to gun ownership. Heller remains a significant Supreme Court decision because it solidified self-defense as the “core” or “central component” of the Second Amendment. Practically, being able to use a gun for self-defense is the primary purpose of the Second Amendment and any law which infringes upon that right should face scrutiny.

The current legal framework leaves medical marijuana users completely unable to defend themselves in any situation and should be subject to the highest level of court scrutiny. Sudhoff, in the Reason policy brief, argues that the Heller decision rendered unconstitutional the requirement that guns be unloaded, disassembled, or bound by a trigger lock because it “made it impossible for citizens to defend themselves, even in their own homes.” Assembling a gun or removing a trigger lock in a heated moment when the weapon was needed would render it practically useless and therefore infringes upon the core right of self-defense. Yet a requirement that gun owners register their guns was kept constitutional because it did not directly impact an individual’s ability to defend themselves, it simply made gun purchase and ownership a bit more strenuous. 

There is no loophole of any kind in the existing web of drug and gun laws that would allow legal medical marijuana users to legally use or own a gun in any circumstance.  If a medical marijuana patient did use a gun in self-defense, they could still be charged with an offense, which suggests existing laws would fail the test administered by the Heller precedent and should be ruled unconstitutional.

The current legal situation undermines the constitutional rights and potentially risks the health and safety of the 5.4 million medical marijuana users all across the country.  To this point, medical marijuana users have been forced to make a terrible choice of forgoing their prescribed medicine or forgoing their Second Amendment rights.  

With 36 states having legalized medical marijuana, it is far past time for the federal government to rectify this constitutionally flawed situation by recognizing medical marijuana users as lawful citizens who have Second Amendment rights. 

The post Medical marijuana users have Second Amendment rights, deserve the right to self-defense appeared first on Reason Foundation.

The federal government prohibits users of Schedule I drugs from purchasing or possessing a firearm. Despite most states having enacted legal medical marijuana programs, marijuana is still federally illegal and designated as a Schedule I substance with no medical value. Individuals who use medical marijuana in accordance with their state’s licensed programs are nevertheless prohibited from purchasing or possessing a firearm under federal law.¹ As such, the onus is placed on medical marijuana patients to either disclose their marijuana use, which disqualifies them from purchasing a firearm and requires they relinquish possession of all firearms, or misrepresent their status as a medical marijuana user, risking fines or imprisonment.

The following policy brief will address the problems inherent in the federal government’s current regulatory framework for the right to keep and bear arms in the context of medical marijuana use, circumstances that implicate the privilege against self-incrimination, and how to revise the regulatory framework in accordance with the guarantees of the Constitution.

How the Gun Control Act and the Controlled Substances Act Prohibit Medical Marijuana Patients from Purchasing or Possessing A Firearm

The federal government regulates the sale, distribution, and ownership of firearms through the Gun Control Act of 1968 (“Gun Control Act”).² The Gun Control Act regulates the sale of firearms, primarily “to prevent guns from falling into the wrong hands.”³ Under § 922(g) of the Act, the government identifies certain classes of individuals who are prohibited from owning or possessing a firearm, including felons, the mentally ill, and illegal aliens in the United States.⁴ They also identify individuals who are “an unlawful user of or addicted to any controlled substance” as a class of persons wholly prohibited from owning or possessing a firearm.⁵

Controlled substances are classified and defined in the Controlled Substances Act of 1970.⁶ Under the Controlled Substances Act, marijuana is designated as a Schedule I drug.⁷ This designation defines the plant as a “drug…with no currently accepted medical use and a high potential for abuse.”⁸ Since marijuana’s scheduling under the Controlled Substances Act, the federal government has gone on to define marijuana as a cannabis plant with an excess of 0.3% THC, whereas if a cannabis plant contains up to 0.3% THC it is considered a hemp cannabis plant, not marijuana, and is legal to possess and use.⁹

To add to this complexity, the federal government has also authorized the sale of Marinol, a lab-derived, synthetic form of THC, and has designated Marinol as a Schedule III drug. Schedule III drugs are defined as drugs or other substances that have less potential for abuse than substances in Schedules I and II and are currently accepted for medical use in the United States, with abuse of the drug possibly leading to only a moderate or low physical dependence or high psychological dependence.¹⁰ Despite Marinol being lab-derived instead of naturally derived from a marijuana plant, there are no differences between the chemical structures or psychological effects of THC in a marijuana plant and the THC in a Marinol capsule.¹¹ Therefore, the federal government has recognized some medical value associated with the use of THC, contrary to marijuana’s designation as a Schedule I drug.

Notwithstanding marijuana’s federal designation as lacking medical value, 36 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have legalized state-licensed medical marijuana programs.¹² Through these programs, individuals may be recommended medical marijuana to aid or cure their ailments or illnesses.¹³

Further, under these programs individuals will not be criminally penalized for merely possessing or using medical marijuana in accordance with their state’s program.¹⁴ However, even though the majority of states recognize medical value of the marijuana plant, the federal government’s designation of marijuana as a Schedule I drug supersedes any state laws indicating otherwise.¹⁵ Consequently, legal state medical marijuana programs are still considered federally illegal, and medical marijuana use is still considered a violation of federal law.¹⁶

When a gun owner uses medical marijuana in accordance with their state’s program, they are nevertheless in violation of the Gun Control Act.¹⁷ Under § 924 of the Gun Control Act, violations of § 922(g) are punishable by a fine and a term of imprisonment up to 10 years.¹⁸ An individual who uses medical marijuana has two opportunities to violate § 922(g): when they purchase a firearm and when they own or possess a firearm. When purchasing a firearm, prospective gun purchasers are required to complete a Firearms Transaction Record – Form 4473 for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).¹⁹ Prospective gun purchasers are required to self-disclose whether they are “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance[.]”²⁰

The form further warns that “[t]he use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”²¹ However, there is no similar mention of other specific prohibited drugs or substances, including heroin, 3,4-methylenedioxymethamphetamine (“ecstasy”), or lysergic acid diethylamide (“LSD”), which all are mind-altering substances and impact a person’s ability to safely use a firearm.²² Moreover, prospective gun purchasers who self-disclose that they use marijuana in accordance with their state’s legalized medical marijuana programs will be prohibited from purchasing a firearm. ²³

On the other hand, no similar warnings are given to current gun owners who become medical marijuana patients. When an individual is initially prescribed or recommended marijuana, there is no requirement for the treating physician to consider the potential legal impacts of their patients’ marijuana use, much less the implications for their right to keep and bear arms. Rather, the onus is on the gun owner to know they are in violation of the law when consuming a federally scheduled drug and should cease their illegal conduct on their own accord.²⁴

Consequently, under the current federal regulations, if a prospective gun purchaser fails to self-disclose their medical marijuana use while seeking treatment in accordance with their state’s program, or if a current gun owner begins using medical marijuana, they may be subjected to fines or imprisonment imposed under § 924.²⁵

This confusion is amplified for Marinol patients who are either purchasing or possessing a firearm. While nothing in the Gun Control Act prohibits Marinol patients from owning or possessing a firearm, Marinol patients will still produce positive drug tests for marijuana. Therefore, even if a person is legally using Marinol in accordance with their prescription, they nevertheless may be required to demonstrate that they have acted in accordance with federal law.

Moreover, marijuana users have a duty to know they are in violation of § 924 and this duty is distinct from other classes of persons defined under § 922(g). In Rehaif, the Supreme Court considered the scope of the word “knowingly” under § 924(a)(2)—the section that defines the punishments for all categories of persons described in § 922(g).²⁶

The court held that the defendant’s conviction for possession of a firearm as an alien unlawfully in the United States, in violation of § 922(g)(5) and § 922(a)(2), was rendered in error because the government failed to prove both that the defendant knew he possessed a firearm and that he knew he belonged to a relevant category under the Gun Control Act.²⁷

The court recognized that while typically “ignorance of the law is no excuse,” that maxim only applies in circumstances where the defendant has the requisite mental state with respect to the elements of the crime but is unaware of a statute prohibiting their conduct. But, the maxim does not apply where the defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense.”²⁸

Thus, the Supreme Court held “the word ‘knowingly’ [in § 924(a)(2)] applies both to the defendant’s conduct and to the defendant’s status.”²⁹ So, to convict a defendant under § 924(a)(2), “the Government . . . must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”³⁰

However, the standard set forth in Rehaif for evaluating knowing violations of § 924 by a person identified in § 922(g) has not been applied to individuals who are “unlawful user[s] of or addicted to any controlled substance,” as defined in § 922(g)(3).³¹

Instead, the Sixth Circuit has held to prosecute under § 922(g)(3), “the Government . . . must prove that defendants knew they were unlawful users of a controlled substance, but not, . . . that they knew unlawful users of controlled substances were prohibited from possessing firearms under federal law.”³²

Consequently, failure to instruct the jury that defendants must have known they were users of a controlled substance in order to be guilty of violating § 922(g)(3) was not in error.³³

In sum, the Gun Control Act prohibits individuals who are “unlawful user[s] of or addicted to any controlled substance,” from owning or possessing a firearm.³⁴ These unlawful users include medical marijuana patients who use marijuana as recommended by their treating physicians, in accordance with their state’s program, which constitutes knowingly using a federally unlawful substance.³⁵ If a person violates the act by using medical marijuana while purchasing or possessing a firearm, they could face fines and a term of imprisonment up to 10 years.³⁶

Full Policy Brief: Blowing Smoke at the Second Amendment

The post Federal law unconstitutionally prohibits medical marijuana users from possessing firearms appeared first on Reason Foundation.

At the time, proponents believed residency requirements would be necessary to ensure that state residents reaped the economic benefits of the newly legal marijuana industry.  Others argued that residency requirements would help deter the diversion of marijuana inventory to the black market while ignoring the already onerous combination of owner background check requirements, round-the-clock video surveillance, and live inventory tracking using radio-frequency identification tags aimed at prevent diversion to black markets.

Colorado, Maine, and Oregon are among the states that have abandoned residency requirements in recent years, while several other states continue to impose them. In reality, these residency requirements have limited the universe of potential investors who could be involved in the marijuana industry and capitalize on startup companies.  Marijuana business owners cannot apply for bank loans or small-business loans because of federal restrictions on providing financing to the industry.  As a result, marijuana businesses must rely almost exclusively on private equity markets to secure the funds needed. This can include significant funding to build out elaborate facilities needed to replicate ideal outdoor conditions, including sunlight, inside enclosed industrial warehouses.  Thus, expanding the universe of private investors who could provide funding to legal marijuana entrepreneurs would be tremendously helpful for many marijuana companies. 

As cannabis attorney Brian Vicente said of Colorado’s residency requirements, “It’s prevented money from flowing into Colorado to invest in our homegrown businesses.”

Most minority owners in marijuana companies are simply passive investors not actively involved in the management of the business.  They provide financing in exchange for a share of ownership in the business while recognizing that the industry bears both unique risks and unique opportunities for return on their investment.  Without access to these individuals, many marijuana entrepreneurs would have a difficult time getting their businesses off the ground.

The framers of the U.S. Constitution foresaw the opportunities that would arise from free economic exchange across the states.  That’s why they enshrined the Commerce Clause into the Constitution.  Federal courts have interpreted this clause as granting Congress the ability to prevent states from erecting arbitrary barriers to trade and effectively ensuring a free-trade zone across the entire United States.  According to federal jurisprudence, any state law that discriminates against interstate or international commerce is in violation of the Commerce Clause.

Making business investments across state lines is clearly a form of commerce and a number of legal disputes have arisen around state residency requirements within state-regulated marijuana markets.  Last month, a federal judge declared Missouri’s requirement that a majority of owners in any business licensed within the state’s medical marijuana program be Missouri residents was unconstitutional.  A Pennsylvania resident who wished to invest in a licensed medical marijuana company in Missouri had filed the suit, arguing,

“The real effect of the residency requirement has been and will continue to be to stifle Missouri’s medical marijuana program by severely restricting the flow of investment into the state.”

Advocates of residency requirements may point to a similar case in Oklahoma where another federal judge dismissed a claim by an Oregon company that wished to invest into the Oklahoma market, although that judge’s ruling didn’t touch on the underlying issue.  In that case, the judge simply claimed he could not provide relief to a company that wished to violate federal law by trafficking in marijuana and he declined to rule on the merits of the underlying argument.  When judges have ruled on the implications that the Commerce Clause has on state residency requirements, they have uniformly found those requirements unconstitutional.

This track record should prompt both lawmakers and regulators in states that have legalized marijuana but maintain these residency restrictions to reconsider them.  There should be a free market in the financing of state-legal marijuana ventures.

The post State Residency Requirements For Legal Marijuana Markets Are Unconstitutional appeared first on Reason Foundation.

The federal Gun Control Act (GCA) of 1968 states that no “unlawful user” of a controlled substance, such as cannabis, shall be allowed to purchase or own firearms. The Bureau of Alcohol, Tobacco, and Firearms (ATF) has reaffirmed several times that it still considers medical cannabis to be an illegal substance, as defined by the Controlled Substances Act (CSA) of 1970, and therefore designates anyone with a medical marijuana card as ineligible to purchase or own firearms.  

This restriction falls more sharply on medical marijuana users than recreational users since they are registered in a government database that can be easily cross-referenced.  Recreational marijuana users, by contrast, can effectively purchase marijuana anonymously and are therefore not subject to this scrutiny, although they would be forced to lie on the firearm background check form 4473 in order to complete a purchase.

Shortly after Michigan legalized medical marijuana, the ATF directed state officials to cease using a certain background check system because it didn’t include medical marijuana registrations and reminded them they needed to include “unlawful” medical users in all firearm background checks.

Pennsylvania responded to a similar message received from the ATF saying that the GCA and CSA lacked the authority to coerce a state into taking an administrative action to facilitate federal scrutiny and surveillance by joining its medical marijuana database with a commonly used criminal justice database called JNET.

The Missouri bill signed into law this month provides an even bolder response to the issue. The new law challenges the constitutionality of the CSA and GCA by pointing to the Second and 10th Amendments. The 10th amendment says states have legal jurisdiction over any policy not explicitly enumerated by the U.S. Constitution for federal jurisdiction. For example, national security and taxes are explicitly assigned to federal authority, but the Constitution provides no direct textual support for marijuana prohibition or policies.

The Missouri legislation, House Bill 85, implicitly argues that the state—not the federal government—should determine whether citizens who possess marijuana are legally defined as “law-abiding citizens.”  The bill text states:

“[R]eserving for the state governments the power to legislate on matters concerning the lives, liberties, and properties of citizens in the ordinary course of affairs… the term ‘law-abiding citizen’ shall mean a  person who is not otherwise precluded under state law from possessing a firearm.”

Missouri is clearly saying that the state has the sole ability to determine who is a law-abiding citizen in matters concerning “liberties” and “properties.”   Additionally, the Second Amendment provides broad firearms protections.  Missouri has already chosen to designate medical marijuana patients as legal under state law and this bill asserts Missouri’s 10th Amendment constitutional right to make that designation over the federal government. 

The Controlled Substances Act even contains a 10th Amendment-like clause which says when in “positive conflict” between state and federal law where both cannot stand, that state law should take precedence in areas that would  “otherwise be within the authority of the state.” 

Missouri’s designation of medical marijuana users as law-abiding citizens, therefore, takes precedence over the federal government’s designation.

The new Missouri law acknowledges the federal constitution as a compact among the states, and as such is subject to judgment by each party as to whether it is executing its assigned duties properly. It says, “each party (state) has an equal right to judge for itself as to whether infractions of the compact (Constitution) have occurred, as well as the right to determine the mode and measure of redress (Author’s additions).” 

In this case, the mode of redress is to deny a federal designation of “unlawful” status to anyone who possesses marijuana via the 10th Amendment, effectively re-establishing their 2nd Amendment rights to purchase and possess firearms in the process.

With 36 states having legalized medical marijuana, it becomes easy for some to forget that marijuana’s federal status continues to create serious legal questions without clear answers.  Missouri’s HB 85 offers a compelling 10th Amendment argument that states may have rightful jurisdiction in this area. 

In essence, the entire marijuana legalization movement has embodied the ideal of ardent federalism.  The Missouri law could lay the groundwork for other states that have legalized medical marijuana to extend their rejection of federal marijuana law. States can re-assert their authority to designate medical marijuana cardholders as law-abiding citizens within their jurisdiction via the 10th Amendment and stop the injustice of legal medical marijuana patients being banned from gun ownership.

The post Missouri Law Restores Medical Marijuana Users’ Second Amendment Rights appeared first on Reason Foundation.

Black individuals in Virginia were five times more likely to be arrested than white individuals for marijuana possession between 2015 and 2019, according to the Virginia Joint Legislative Audit and Review Commission. The commission’s 2020 report found this recent five-year period was Virginia’s heaviest enforcement of marijuana possession laws in the state’s history and there was disproportionality not only in arrest rates but also in the likelihood of an arrest turning into a court proceeding.

The report also found that the likelihood of a black individual being arrested for marijuana possession was higher than a white individual in every single one of the state’s 88 localities (only those with sufficient data) measured in the report. The average Virginia locality had a disproportionality rate of five between black and white individuals.

However, enforcement within some localities showed far greater disparities. Albemarle, Hanover, and Arlington counties were all significantly higher than the average. Carroll County’s record was most disturbing: a black individual was 40.4 times more likely to be arrested for marijuana possession than a white individual. These examples can be seen in the chart below.

Discrimination can be seen not only in disparate arrest rates but also in how individuals’ cases are treated after an arrest has been made. Black people were more likely to have their cases advanced to court hearings in 83 Virginia localities. Black individuals in Wythe County were the worst off—they were 11.8 times more likely to have their arrest turn into a court case than a white individual.

These drug laws, arrest rates, and court case disparities are unjust and nonsensical. If they are not viewed as serious offenses worth pursuit by a prosecutor when the offender is white, then they should never be pursued at all in a liberal society that values equality before the law. Thankfully, Virginia is on the road to righting some of its historical wrongs. But tackling racism within drug law enforcement is not an easy task, nor a quick one.

This process has moved slowly in Virginia when compared to several other states. In 2015, a Virginia bill decriminalizing cannabis was rejected by the state legislature. Virginia’s bills that decriminalized the possession of small amounts of marijuana and expunge prior convictions finally passed in 2020 are an important step in the right direction.

Similarly, medical marijuana dispensaries did not appear in the state until 2018, and access to medical marijuana has remained difficult for many of the state’s patients in need. For example, in 2019, only 0.7 percent of licensed doctors in Virginia had registered to write medical cannabis recommendations.

Now, however, Virginia is poised to join the 15 states that have fully legalized marijuana for adult use, provided that lawmakers can resolve differences between various versions of a bill that passed each legislative chamber.

There are many reasons to pursue the legalization of marijuana, including freedom of choice for consenting adults, reducing the reach and harms of illegal drug markets and cartels, and curtailing youth use through a safe, regulated, age-restricted marketplace.

However, policymakers and citizens shouldn’t lose sight of the fact that the drug war was expressly motivated as a means to harass racial minorities and evidence shows it has often been used that way.  It’s an affront to the very principles of our nation that such discrimination would be enshrined in law. These drug laws should never have been enacted, but it is positive to see Virginia seems set to join other states in repudiating the failed drug war and its illiberal legacy.

The post Virginia’s Drug Law Enforcement Disproportionately Impacts Black Citizens appeared first on Reason Foundation.

As a result, recreational marijuana will soon be legal in four more states.

In Montana and South Dakota, a significant majority of voters approved legalizing adult-use marijuana. The measures in both states are fairly detailed but state agencies will be tasked with promulgating regulations for marijuana markets in 2021.

New Jersey voters approved legalizing adult-use marijuana by an even larger two-to-one margin in a very simple measure that now requires the state legislature to pass implementing legislation in 2021 and regulations to be created by the Cannabis Regulatory Commission.

Arizona voters, after voting down marijuana legalization in previous elections, finally approved it this year. Unfortunately, the approved measure is a mixed bag that does not really create a free market and gives incumbent medical marijuana firms control of the recreational market.

In each of the four states legalizing adult-use marijuana, 2021 will be a busy year of implementing rules created by the measure or promulgating new ones. All four states may well see both legislation to refine or develop additional requirements or restrictions and rulemaking by state agencies.  It remains to be seen how much that process will be influenced by lessons learned in states that already went through the legalization process.

At the same time, Mississippi and South Dakota voters approved medical marijuana proposals.  In South Dakota, a medical market will be rolled out in parallel with recreational marijuana markets and is unlikely to be complex or contentious.

Mississippi’s path to approving medical marijuana was a bit wild, with two competing measures making their way to the ballot this year.  One was put on the ballot via a campaign to gather signatures from registered voters, and it took an approach to medical marijuana built on programs in other states and giving doctors control of prescribing. In response, the state legislature placed a very restrictive medical marijuana measure on the ballot under which the state would closely control prescribing medical marijuana.  Voters overwhelmingly chose the first measure.

In both Mississippi and South Dakota final rules governing medical marijuana will be crafted by state agencies in 2021.

Reason Foundation’s drug policy experts will be offering technical assistance in all five states based on our framework and best practices for creating open, fair and free markets for adult-use marijuana.  Legal cannabis markets that are overly restricted and taxed, for example, encourage the continuation of substantial black markets and should be avoided in each of these states.

The overall shifting views of the public on drug issues are evident in other initiatives. In Washington, D.C., voters approved a referendum stating it is the will of the voters that the police and prosecutors not pursue the criminal arrests or punishment of citizens violating laws governing psychedelic plants.

Finally, and importantly, Oregon’s voters approved the decriminalization of all drugs.  Manufacturing and sale of illegal drugs will not be permitted in the state, but the possession and use of drugs will no longer be criminal. This approach is similar to the approach taken decades ago in Portugal, with great success. Rather than addressing drug use with arrest, prosecution, and incarceration, Oregon will seek to curtail drug abuse through four approaches:

1. Patient-centered treatment, including through addiction recovery centers that offer 24-hour triage centers to meet with patients and enroll them into evidence-based recovery programs;
2. Peer support and recovery services to maintain contact with each patient, monitor their progress and sobriety, and provide mentorship;
3. Transitional housing for drug-addicted patients who need to get off the street and find employment; and
4. Harm-reduction interventions to ensure drug use does not result in avoidable deaths or the spread of disease.

Collectively, these actions by voters represent a long-overdue attempt to change the course of how we deal with adult-use of drugs and the problems of drug abuse in America. These shifts away from the failed War on Drugs that has created massive collateral damage throughout society to an evidence-based harm reduction approach are important and positive steps.

The post Voters Across the Country Decriminalize Drugs, Reject Failed War on Drugs appeared first on Reason Foundation.

Reason Foundation’s work on drug policy has highlighted the problems with prohibition and the War on Drugs and alternative means of dealing with real external impacts of drug abuse. We have also focused on understanding what has, and has not, worked in the creation and regulation of legalized medical and recreational marijuana markets.

This year voters in states across the country will weigh-in on several ballot measures pertaining to drug policy. In the District of Columbia, voters will decide on an advisory measure to de-emphasize enforcement of possession and sale of psychedelic plants. Voters in Oregon will decide if some drugs should be decriminalized and addressed with harm reduction policies instead. Arizona, Montana, New Jersey and South Dakota voters will decide on legalizing adult recreational marijuana markets, and voters in Mississippi and South Dakota will decide on authorizing medical marijuana markets.

• Arizona Ballot Initiative Analysis: Proposition 207 — Legalizes, regulates and taxes recreational marijuana.
• Mississippi Ballot Initiative Analysis: Initiative 65 and Alternative 65A — Legalizes medical marijuana.
• Montana Ballot Initiative Analysis: Amendment Cl-118 and Initiative I-190— Legalizes the possession and use of marijuana.
• New Jersey Ballot Initiative Analysis: Public Question 1 — Legalizes the possession and use of marijuana.
• Oregon Ballot Initiative Analysis: Measure 110 — Decriminalizes possession of certain drugs and establishes a drug addiction treatment and recovery program funded by the state’s marijuana tax revenue.
• South Dakota Amendment A — Legalizes, regulates and taxes recreational marijuana.
• South Dakota Measure 26 — Legalizes medical marijuana in the state.
• Washington D.C. Ballot Initiative Analysis: Initiative 81 —  Decriminalizes the use of psychedelic plants.

Voters’ Guides to 2020 Ballot Initiatives on Other Policy Topics

The post Marijuana Legalization and Drug Policy Ballot Initiatives 2020 appeared first on Reason Foundation.

Summary

Measure 26 would create a medical marijuana program in South Dakota. Medical marijuana would have to be prescribed by a doctor for a debilitating medical condition, defined as a chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including characteristic of multiple sclerosis. The Department of Health could add additional qualifying conditions if it deems appropriate.

Patients would be allowed to possess a maximum of three ounces of marijuana, and patients registered to cultivate marijuana at home could grow three plants at a minimum, or another amount as prescribed by a physician. The Department of Health will set limits on the number of cannabis products a person may possess and will enact rules for implementing the medical marijuana program within 120 days after the law goes into effect—likely meaning October 29, 2021—and must issue registry identification cards to qualified patients by 20 days after that.

Fiscal Impact

We could not identify any official estimates of fiscal impacts for Measure 26.

Proponents’ Arguments For

Measure 26 supporters argue that doctors and patients can and should determine the best treatment options for the patients’ ailments. Many scientific studies now show medical marijuana can alleviate severe pain and other symptoms of serious health conditions. Medical marijuana is approved in 33 states and none have repealed it but rather have found it successful, with lower usage rates of more addictive and harmful drugs such as prescription opioids. Right now, people using marijuana medically are forced to get it on the black market, which is not only illegal but also unsafe, and which inhibits them from getting off of opioids and prevents treatment of children with seizure disorders.

Proponents further say that veterans who use medical marijuana to treat PTSD, chronic pain, and other health conditions should have legal access to it. Measure 26 would provide that for some of them, but many veterans need to use VA doctors, who cannot prescribe medical marijuana, so would need Amendment A to be approved to have access to marijuana for treatment.

Opponents’ Arguments Against

Most opponents of Amendment A, the 2020 ballot initiative that would legalize recreational marijuana, are not opposing Measure 26. The exception is the state medical association. They argue that medical marijuana is not proven beneficial with low side effects. They say that it is a hazardous drug that has not been approved by the FDA. Meanwhile, there are FDA-approved options for patients seeking out treatment with marijuana-related compounds.

Discussion

Medical marijuana is legal in 37 states, among them are South Dakota’s neighbors Iowa, North Dakota, and Minnesota. It’s also on the ballot in Mississippi this year. Nationwide, Pew Research Center finds 92 percent of Americans support legalizing medical marijuana, including 88 percent of those who are Republican or lean Republican. In Montana support is almost 70 percent.

This growing support for making medical marijuana accessible and regulated, as explained by Republicans Against Marijuana Prohibition, is fueled by a growing recognition of its medical potential, the vast number of undeniable stories of breakthroughs in relief for children, veterans and others suffering from debilitation maladies, and the belief that doctors and patients alone should be the ones deciding which treatments make sense. Conservative supporters argue that doctors are licensed and heavily regulated by the state and can evaluate the merits of medical marijuana. With the government already regulating healthcare at an unprecedented level, vastly growing state power, conservatives who value federalism and the rights of patients and doctors should support medical marijuana.

South Dakota is the first state to simultaneously consider cannabis decriminalization and licensing for both medical and adult-use, with Amendment A and Measure 26. Medical marijuana advocates argue that approving both is crucial to making sure a medical marijuana program is established, and that if only Measure 26 passes, the legislature could override voters and eliminate or restrict the program.

In technical detail, Measure 26 leaves some of the details to be worked out by the Department of Health over the coming year, building on specific requirements and proscriptions in the measure. The list of medical conditions for which Measure 26 allows marijuana to be prescribed is more limited than other states, but it does allow the Department of Health to consider additional conditions.

Voters’ Guide to Other Marijuana Legalization and Drug Policy 2020 Ballot Initiatives

Voters’ Guides to 2020 Ballot Initiatives on Other Policy Topics

The post South Dakota Ballot Initiative Analysis: Measure 26 (2020) appeared first on Reason Foundation.

Summary: 

Initiative 65 and Alternative 65A would amend the state constitution to permit medical cannabis in the state.

Voters will be asked two questions on the ballot about these amendments:

First, they will be asked if they want “either measure”—meaning they want to allow medical cannabis in Mississippi, or if they want “neither measure”—meaning they do not want to allow medical cannabis in Mississippi.

Second, they will be asked to pick either Initiative 65 or Alternative 65A, regardless of what they answered to the first question above. Those who say “either measure” must pick one of the two in this second question. Those who choose “neither measure” may pick one of the amendments in this second question or may choose not to—so if “either” wins over “neither” those voting neither at least get to help decide which of the two initiatives prevails.

Initiative 65, a citizen-submitted initiative, would authorize qualified patients with debilitating medical conditions as certified by Mississippi licensed physicians to use medical cannabis from licensed treatment centers regulated by the State Department of Health.

Alternative 65A, the legislature’s alternative measure, would institute a more limited medical cannabis program and does not include details such as which medical conditions are eligible, when the program would start, tax rates, etc. instead of leaving those to the legislature to put in place if the measure passes.

Fiscal Impact

There are no official estimates but based on typical Mississippi states taxes and fees either of these two measures would likely generate several million dollars in new state revenue.

Proponents Arguments in For Initiative 65

Proponents of Initiative 65 argue that medical marijuana is a safe and effective treatment option for a broad range of serious medical conditions and their symptoms, such as chronic pain. More than 3.5 million Americans are using medical marijuana in 34 states, and supporters say that there is no reason to deny the same options for Mississippians who are in chronic pain or suffer from other symptoms from debilitating medical conditions. They say that Initiative 65 gets a medical marijuana program up and running as soon as voters approve it, while Alternative 65A means politicians will have to decide when and how a medical marijuana system will begin. Because the legislature has blocked every medical marijuana bill in the past, that could never happen.

Supporters also argue that Initiative 65 requires the Department of Health to develop and enforce regulations on the medical marijuana system and has strict timelines for doing so. Doctors will be allowed, but not required, to certify medical cannabis for specified ailments under Initiative 65, while Alternative 65A leaves that up to politicians.

Opponents Arguments Against Initiative 65

The Mississippi State Department of Health opposes Initiative 65 and has stated that medical cannabis “is not FDA approved, it is illegal, and has not undergone a rigorous medical review.” The Mississippi State Board of Health also argues that Initiative 65 gives physicians too much leeway in prescribing medical marijuana, that people might not use it as prescribed, and the FDA has not defined or approved medical marijuana. Other opponents have said that Initiative 65 would lead to “pot shops” near schools and churches, would make it easier for drug abusers to get marijuana, and would overburden law enforcement.

Proponents Arguments for Alternative 65A

Proponents of Alternative 65A say it will give those who need medical marijuana for a terminal illness a responsible pathway to access it. They argue that Initiative 65 is too broad and will lead to the state having more recreational marijuana, while Alternative 65A will place more restrictions on marijuana use. Alternative 65A will give the legislature the ability to regulate medical marijuana and will specifically allow for local regulations on where marijuana shops are located, while Initiative 65 will not.

Opponents Arguments Against Alternative 65A

Opponents of Alternative 65A say that it was put on the ballot by the legislature to confuse voters and split the vote so that neither measure receives the required amount of votes to pass, and ultimately prevent approval of medical marijuana for patients in Mississippi. The legislature failed to act on more than 20 proposed bills in recent years designed to create a legislatively established medical marijuana program and only acted when the citizens demanded action by putting their own initiative on the ballot. Opponents further say that Alternative 65A is the legislature trying to claw back power from citizens. While Initiative 65 establishes a fully viable medical marijuana system that learns from what has worked and not worked in other states, Alternative 65A does not include most of the basic components necessary.

Discussion

The first thing Mississippi voters must decide is how they feel about medical marijuana. Nationwide, Pew Research Center finds 92 percent of Americans support legalizing it, including 88 percent of those who are Republican or lean Republican. A recent poll in Mississippi shows that 81 percent favor “allowing patients with medical conditions and serious illnesses to possess and consume marijuana if their doctors recommend it,” breaking down to support from 89 percent of Democrats, 76 percent of Republicans and 82 percent of independents.

This growing support for making medical marijuana accessible and regulated, as explained by Republicans Against Marijuana Prohibition, is fueled by a growing recognition of its medical potential, the vast number of undeniable stories of breakthroughs in relief for children, veterans and others suffering from debilitation maladies, and the belief that doctors and patients alone should be the ones deciding which treatments make sense. Conservatives in Mississippi have argued along similar lines, pointing out that doctors are licensed and heavily regulated by the state and are capable of evaluating the merits of medical marijuana. With the government already regulating healthcare at an unprecedented level, vastly growing state power, conservatives who value federalism and the rights of patients and doctors should support medical marijuana.

Given that doctors and patients already make decisions about prescribing drugs that, if abused, are vastly more harmful than marijuana, it seems odd to think that this relatively mild medicine (that there are no reported deaths from) can’t be trusted to doctors, while opioids, tranquilizers, stimulants and other potentially deadly drugs are prescribed every day.

The second choice that voters face is between Initiative 65 and Alternative 65A, and the differences between them are significant:

Source: Ballotpedia.

Initiative 65 specifically defines debilitating medical conditions eligible for treatment with medical cannabis (see table below). If you know someone with any of these diseases, you know how hard it can be to find an effective treatment. This list was built from experience by doctors and patients in other states successfully treating using medical marijuana. Indeed, this standard list is used in several other medical cannabis states and is included to prevent politicians from being the ones to decide which diseases can be treated with marijuana as a medicine, and instead leave it up to doctors and patients.

Initiative 65 allows qualified patients to possess not more than 2.5 ounces of medical cannabis at one time and that no more than 2.5 ounces may be provided to a patient in any 14-day period. (Excluding ingredients in edible products, topical products, ointments, oils, tinctures, etc.) The initiative also prohibits a medical cannabis treatment center from being located within 500 feet of a school, church, or child-care establishment. It also states that nothing in the measure’s text would affirmatively require a physician to issue a certification for a patient to obtain medical cannabis, so only doctors willing to recommend medical cannabis will do so.

Alternative 65A is shorter in length than Initiative 65 and leaves many details about how medical marijuana would work in Mississippi for the legislature to figure out later. But at the same time, it does clearly aim for a stricter and more limited medical cannabis program and contains some problematic provisions. For example, it mandates that legal marijuana products “shall be of suitable pharmaceutical quality,” but does not define what that means. No other state has imposed such a requirement, and since pharmaceutical-grade standards are prescribed by the U.S. Food and Drug Administration which has declined to issue such standards for cannabis, there is no such standard.

Alternative 65A also requires that treatment “shall be carried out by physicians, nurses and pharmacists,” which seems to mean either that one of those medical professionals must administer every dose a patient takes that patients would need approval from all three to receive medical marijuana since elsewhere the measure says only doctors may prescribe it. Again, no other state has such a requirement.

Alternative 65A also requires a state registry of enrolled patients, a process for patient tracking, and assessment of treatment outcomes. It also bans smoking as a means of administering medical marijuana except by those with terminal medical conditions.

Voters’ Guide to Other Marijuana Legalization and Drug Policy 2020 Ballot Initiatives

Voters’ Guides to 2020 Ballot Initiatives on Other Policy Topics

The post Mississippi Ballot Initiative Analysis: Initiative 65 and Alternative 65A (2020) appeared first on Reason Foundation.

Once an initiative qualifies for the ballot in Mississippi, the state legislature is permitted to float competing measures.  Unfortunately for the prospective patients of Mississippi, the state legislature’s alternative for medical marijuana is far more restrictive and vague than the initiative voters signed and even contains provisions that have been legally overturned in other states. 

The original ballot initiative, which is similar to other measures around the country, requires patients to suffer from a “debilitating condition” before they qualify to purchase medical marijuana. These conditions are specifically enumerated and include chronic pain, glaucoma, pain refractory to appropriate opioid management, and intractable nausea. Enumerating these conditions is important because if they are not explicitly stated, it allows state lawmakers and rule-makers to arbitrarily determine which conditions qualify.

The competing legislative measure leaves this determination open to state regulators who may select a totally different set of conditions than what was intended by voters.    

Another overly restrictive aspect of the legislature’s measure is that it prohibits smoking marijuana, perhaps the most common method of consumption, for anyone except those with “terminal medical conditions.” 

While the legal and constitutional context was notably different, Florida’s legislature also attempted to implement a ban on smoking when medical marijuana was passed there. The provision was immediately challenged in court and was quickly tossed out by Florida’s Supreme Court as conflicting with the will of the voters. Another argument against the ban was that if the legislature could ban one form of consumption, namely the most popular one, it gives the legislature the power to ban any other form of consumption, which in turn undermines the main intent of allowing citizens to use medical marijuana in a manner agreed upon by the patient and the doctor. 

Worryingly, the Mississippi legislature’s proposal also severely restricts the number of legal marijuana suppliers and manufacturers.

States that are legalizing medical cannabis are sometimes concerned about black market “leakage” to neighboring states or to recreational use, and for this reason, they believe that limiting the supply of legal marijuana will prevent leakage. However, this concern may be overblown, as the illegal marijuana supply chains were vibrant long before any states created medical marijuana programs. Also, legal medical marijuana inventory is tracked extensively by state databases, while those planning to sell illegal marijuana would seek to avoid this tracking system entirely.

Marijuana legalization in a healthy market will eventually reduce prices and squeeze out black market providers, whereas adding restrictions to the legal market only raises costs of production and makes illegal marijuana relatively more attractive, even for medical patients who must foot the bills for their own treatment. In addition, both of Mississippi’s neighbor states to the west already have medical marijuana and it’s two neighbors to the east both have promising active bills being considered by their respective legislatures.  

Placing artificial limits on the supply of legal medical marijuana could actually have the opposite effect and drive medical patients to the black market because limited patient access leads to high prices for legal products. It is practically impossible for states to estimate the exact size of medical marijuana demand since the data doesn’t exist and states that have tried have been wildly off-base. Further, statewide caps on the number of licenses available limits economic opportunity and increases the likelihood of cronyism.

Nevada, for example, has seen its legalization scheme devolve into outright fraud and corruption as regulators were wooed by applicants with unlawful payments in order to secure one of the limited licenses. Mississippi should look to actively avoid those mistakes by keeping its medical marijuana market open and honest.

Mississippi’s legislators should study and learn from the successes and failures of other states’ medical marijuana programs alike. They should try to avoid the fiasco seen in Florida, and instead adopt measures that reflect the will of people for an open, but well-regulated medical marijuana market.

The original ballot measure borrows heavily from successful initiatives in other states that have created healthy, but controlled, marijuana markets, with few to none of the fears around legalization coming to fruition.  

The Mississippi legislature should recognize and accept citizens’ desire to have safe, legal access to medical marijuana in a manner most consistent with a doctor’s advice.  And attempts to undermine this process risk damaging public health while leading directly to the very problems the legislature seems to fear.

The post State Legislature Undermines Mississippi’s Medical Marijuana Ballot Initiative appeared first on Reason Foundation.

Last December, Jeffrey Miron and I published our own state-level, cross-sectional analysis in Reason that similarly concluded: “Overall, states with legalized marijuana have reported approximately 6.7 fewer lung injuries per million people than states that have not yet permitted recreational cannabis sales, according to our analysis of CDC data.”

Vaping-Related Illnesses Per Million People
(Click a state for more information)

Covid test

Similar to the JAMA authors, we chose to compare states that permitted recreational marijuana sales to all other states, even if they regulated a medical marijuana market without a recreational market. We did this because we hypothesized that vaping-related injuries were almost always caused by products purchased in illicit markets and that only permitting a medical marijuana market would not provide sufficient access for most recreational marijuana users to obtain safe products. The JAMA authors’ analysis agrees with our sentiment, commenting, “The difference in the EVALI case rate between medical and prohibition states was not statistically significant.” And with our estimate right between both of the authors’ estimates, it looks like our results match perfectly.

Based on these results, it can be said that marijuana prohibition was a major factor in causing the vaping-related lung-injury “epidemic.” According to both analyses, if every state permitted a recreational marijuana market, there would have been approximately 1,663 fewer vaping-related lung injuries — a 62 percent decrease from approximately 2,667 total recorded injuries in 2019.

While considering these estimates, it’s important to remember that marijuana is still technically illegal in every state due to federal law. As of now, 11 states and Washington, D.C. have voted to “legalize” marijuana, but since the federal government’s Schedule I (total prohibition) designation supersedes all state laws, current “legalization” should just be interpreted as supplier decriminalization. This means that if the federal government legalized marijuana, we would expect even fewer vaping-related lung injuries than the studies estimate.

After months of suggesting legal vaping products could be to blame for vaping illnesses in 2019, the Centers for Disease Control and Prevention (CDC) did not concede that the lung injuries were disproportionately caused by “tetrahydrocannabinol (THC)-containing products primarily from informal sources” until January 2020. In contrast, organizations that looked closely at the data, like the Competitive Enterprise Institute, Reason Foundation, and the Cato Institute, pointed out that the illicit market was the culprit as early as July 2019.

With federal bureaucracies like the CDC and Food and Drug Administration (FDA) slow to make this distinction, the public was confused as the agencies waged a war against legal nicotine e-cigarettes, which have not been shown to be the cause of a single recorded vaping-related lung injury. And during the current coronavirus pandemic, it’s important for agencies at all levels to allow marijuana businesses and tobacco shops to operate so that illicit manufacturers don’t replace the regulated suppliers.

As Reason’s Jacob Sullum points out, as the ongoing COVID-19 pandemic is devastating hospitals and economies across the globe, it’s high time for public health agencies to prioritize their original purpose — preventing actual epidemics — as opposed to metaphorical “epidemics” of self-endangering behavior. Especially when the government’s prohibition is a significant cause of the problem in the first place.

The post How Marijuana Prohibition Contributed to the Vaping Lung-Injury “Epidemic” appeared first on Reason Foundation.

The coronavirus pandemic has also led to rapid changes in some of the rules governing legal marijuana sales.  Out of concern for public health, regulators have quickly enacted some changes that make it easier for medical patients and recreational consumers alike to purchase marijuana without coming into close contact with large groups of people.

Illinois Gov. J.B. Pritzker announced the state would allow curbside ordering and pick-up for medical patients.  Emergency orders in Michigan now allow all cannabis stores to deliver products and also allow customers to order online and pick them up curbside. And Massachusetts has expanded the allowable radius for marijuana delivery services.

These constructive changes are consistent with an overall theme of federal, state and local governments wiping away unnecessarily burdensome regulations to more ably respond to the ongoing coronavirus crisis in a timely manner.  There’s a clear argument that such changes should be made permanent.

Aside from these swift changes in state marijuana regulations, some marijuana businesses have been confronted in recent days by orders to close all “non-essential” businesses and for individuals to remain in their homes.  Such orders have called into question which businesses are considered “non-essential.”  Nevada Gov. Steve Sisolak, for instance, had to issue clarification about this definition a day after he ordered “non-essential” businesses to close.

Particularly within the context of a state medical program, it’s critical to recognize that many individuals rely on marijuana or its derivatives as a medicine to treat chronic health conditions such as Crohn’s Disease, epilepsy, muscular dystrophy, or to treat the side-effects of chemotherapy.  Individuals suffering from chronic health conditions are also those at increased risk for COVID-19 so it’s especially important that these individuals have access to the medications they need to treat their underlying health conditions.  In this case, at a minimum, that means medical marijuana businesses should be free to remain open throughout the public health crisis to facilitate access for patients.

Several localities have acknowledged this outright.  In Nevada, for instance, marijuana businesses were not listed among the “non-essential” businesses enumerated by Gov. Sisolak and many of those businesses continue to operate.

Among the seven California counties in the Bay Area that have issued shelter-in-place requirements, several have clarified that marijuana businesses are “essential,” although rules vary slightly from one to another.  San Francisco originally forced marijuana businesses to close but reversed that directive within a matter of hours.  Neighboring counties have mostly allowed marijuana businesses to remain open, at least for medical patients.

Industry trade groups in California have also urged Gov. Gavin Newsom to set a statewide policy that marijuana businesses are “essential.”  According to the Orange County Register:

While marijuana dispensaries and delivery services scramble to meet the increasing demand across Southern California, others are also pushing the state to expand its list of essential businesses to dispensaries.

In a letter Tuesday to Gov. Gavin Newsom, Jerred Kiloh, president of the United Cannabis Business Association and owner of The Higher Path dispensary in Sherman Oaks, urged Newsom to include cannabis operators on the list of essential businesses needing to stay open during the COVID-19 restrictions.

“Mandating legal retailers and distributors to shut down will only allow the illicit market to flourish and will expose consumers to harmful untested products,” Kiloh said in his letter. “We humbly ask that you classify cannabis retailers and their supply chain partners as essential business, just like pharmacies, so we can continue providing crucial medicine to our patients/members.”

Ensuring medical patients have ongoing access to legal marijuana in a safe manner will remain critical throughout the coronavirus crisis, but the issue may get murky as the National Guard is activated.  Use of the National Guard to enforce quarantines, for example, could, in theory, set the stage for a direct conflict between state and federal law on marijuana as U.S. troops could impound marijuana delivery drivers and seize their cash or inventory.  State leaders need to begin thinking about and planning now for how to deal with such a seemingly unlikely scenario — in case it materializes.

Federal and state conflict over marijuana laws has simmered for years and could conceivably boil over during the current crisis.  Rather than look backward, however, states should continue on their recent course of reducing unnecessary rules and regulations and making it easier for medical marijuana patients to obtain the medicine they need.

The post Governments Eliminate Burdensome Marijuana Regulations in Response to Coronavirus Crisis appeared first on Reason Foundation.

Analysis by researchers at Reason Foundation and Harvard University finds that states permitting adult-use of recreational marijuana tend to have fewer vaping-related lung injuries, suggesting that legalizing marijuana could be a partial solution to reducing vaping illnesses.

The Center for Disease Control started a panic over legal vaping products, only to later say vaping-related illnesses were primarily caused by black market THC products containing vitamin E acetate, which is found only in illicit products. 

Despite the increased legalization of cannabis in the US, the FBI’s latest crime data release shows arrests for drugs increased in 2018. 

Some doctors and researchers think that the risk of psychosis from marijuana is low and research into other areas of cannabis science and policy should be prioritized. 

Legislation, Regulation, and Markets

One Kentucky state representative is proposing legalizing marijuana and using the subsequent tax revenue to pay down unfunded pension liabilities. 

Michigan’s recreational cannabis market opened recently and is experiencing high demand. The legislature is also considering forcing marijuana businesses to reach labor peace agreements. 

Illinois, which also recently opened its recreational market, is already experiencing shortages.

Illinois also made changes to its cannabis law related to the expungement of past marijuana crimes, banking, DUI policy, and more. 

Some of Massachusetts’ recommendations for determining marijuana-impaired driving have little or no connection to driving while impaired by THC. Roadside sobriety assessments conducted by drug recognition experts remain the best option.  

Nevada’s flawed marijuana licensing process has led to corruption and lawsuits.  

Evidence

A time-series analysis from Washington state and Colorado finds “no significant” increase in crime after marijuana legalization.

In a simulated driving experience, researchers found that smoking cannabis led to an acute decrease in driving speed but otherwise had no significant acute or residual impacts on driving performance.

After controlling for pre-use cognitive ability, researchers from the University of Colorado found that regular cannabis use has no significant impact on cognitive ability. 

Johns Hopkins researchers find cannabis products are typically advertised in six major categories: psychoactive effects, physical effects, social effects, sensory profile, therapeutic and curative claims, and negatives/warnings. However, the researchers also conclude, “Online cannabis retailers are making potentially unsubstantiated product claims.”

A new study claims extreme binge drinking at your 21st birthday party can cause permanent brain matter damage. 

An estimate of e-cigarette use in 2019 suggests that roughly 27 percent of high schoolers and 10 percent of middle school students vape e-cigarettes. Among those who vape, only 18 percent reported regularly engaging in the behavior.

The post Drug Policy Newsletter: Drug Arrests Increase, Driving Under the Influence of Marijuana, and More appeared first on Reason Foundation.

“As Massachusetts continues to implement adult use of marijuana, including potential social consumption sites, it’s vital that we update our impaired driving laws to ensure the safety of everyone who uses the Commonwealth’s roads,” Gov. Baker said in the press release.

The proposed legislation, informed by input from several stakeholder groups and spurred by last month’s approval of regulations for social consumption of cannabis, seeks to implement the following (paraphrased) changes in the judicial approach to driving while impaired by THC (the intoxicating component of cannabis). The law would:

1. Authorize courts to stipulate THC ingestion as impairing to driving.
2. Extend implied consent authority to suspension of licenses for refusal of chemical testing, as with alcohol.
3. Develop educational materials on drug impairment for trial court judges.
4. Expand DRE (drug recognition expert) officer training and allow testimony as expert witnesses in civil and criminal cases.
5. Statutorily prohibit open containers of marijuana, as is currently the case with alcohol. 
6. Empower police to seek electronic search warrants for (blood-draw) evidence of chemical intoxication after probable cause is established.
7. Permit judicial stipulation of the scientific validity and reliability of HGN (horizontal gaze nystagmus) to demonstrate intoxication.

Some of these proposed changes make sense and largely track with Reason Foundation’s recommendations in the study, “A Common Sense Approach to Marijuana-Impaired Driving.” THC is a proven intoxicant, and since drivers’ insobriety can cause, and has caused, fatalities, public safety dictates that implied consent must extend to all intoxicants, including legal cannabis products containing THC.

Trial court judges should have the means to educate themselves about drug impairment. Drug recognition experts (DREs), who are police officers trained and certified in the detection of intoxication and impairment in individuals, should be considered expert witnesses and should be trained in numbers commensurate with need. 

But a few of Massachusetts’ recommendations have little or no connection to driving impaired by THC, and therefore bear review. For example, prohibiting open containers of marijuana would parallel the open container prohibition of alcohol, but what exactly does that mean? Is a closed Ziploc bag containing legal cannabis considered an open container? If so, what would this mean for a medical marijuana card-holder transporting his medication? Unlike alcohol, marijuana has recognized medicinal uses, putting it more in the category of someone driving with intoxicating medications like, say, Valium. Thus, for medical marijuana card-holders, open-container laws should treat their prescription medication the same way other intoxicating medications are treated.

Even further afield is the commission’s recommendation on blood-draw evidence search warrants. While there is no legal problem allowing police to seek electronic search warrants for chemical evidence once probable cause (the grounds for arrest) has been established, blood evidence of THC ingestion is not conclusively linked to intoxication. THC processes differently in the body than alcohol and can be present in blood samples for weeks after ingestion (urine will show THC metabolites for even longer)—long after the subject is sober. While some states have set statutory per se blood plasma levels, seeking to parallel .08 blood alcohol content (BAC) for alcohol, THC blood levels don’t track with intoxication except at very high doses. A per se statute for blood evidence that sets the bar low enough to charge every THC-intoxicated driver could inadvertently punish sober drivers, while a bar set very high to charge only absolutely intoxicated drivers could fail to remove many intoxicated drivers from the roads.

THC is simply different metabolically from alcohol and for policymakers to pretend otherwise is unwise. While blood evidence can establish that a driver is a marijuana user, a need to establish intoxication rather than merely past use, especially for medical marijuana users, questions the relevance of such evidence.   

Finally, Massachusetts’ last recommendation judicially stipulates the scientific validity and reliability to demonstrate intoxication of horizontal gaze nystagmus (HGN). This involuntary jerking of the eyes when the gaze is held at the outermost edge of vision is indeed scientifically valid and reliable—but not for THC.

HGN occurs primarily with depressants, PCP, tranquilizers and alcohol. The degree of HGN corresponds to the degree of intoxication, most precisely with alcohol. A trained officer dealing with a driver intoxicated by alcohol alone can estimate the driver’s blood-alcohol level very accurately through observation of HGN. But this has nothing to do with cannabis.

It’s possible that such a recommendation seeks to redress an omission in the law related to alcohol-impaired driving. Or if this recommendation seeks to address the well-proven synergistic effects of alcohol and THC consumption—together they are more intoxicating than the sum of their parts—then it should be written as such, possibly something like: Authorizing courts to stipulate that concurrent intoxication by alcohol and THC is more impairing than both alone.   

So what should the judicial system use as grounds for arrest for driving under the influence of drugs? Just as police officers have been doing for decades with drivers intoxicated by prescription medication, designer and other drugs that labs can’t test for, and even for alcohol intoxication in drivers who are greatly impaired but below .08 BAC, the field sobriety test assesses divided attention skills—the very skills needed to drive a car safely. This approach directly targets impairment and is best done with the corroboration of body cam evidence when possible. A drug recognition expert’s evaluation seeks to identify the drug(s) involved for laboratory and prosecutorial purposes, but demonstrated impairment should be the focus and reason for getting the driver off the public roadways. 

The post Massachusetts’ Legislation for Marijuana-Impaired Driving Needs Some Work appeared first on Reason Foundation.