The American Bar Association (ABA) adopted a resolution on Monday that calls on Congress to allow states to set their own marijuana policies and recommends rescheduling or descheduling cannabis under federal law.
Members of the ABA House of Delegates approved the measure at the organization’s annual meeting in San Francisco and, according to the ABA Journal, it was broadly supported—passing “without audible opposition”—even after proponents waived their time to speak.
Though ABA specified that it was not taking a position on marijuana legalization generally, it recognized that conflicting federal and state cannabis policies are untenable and have created complications for cannabis businesses operating in compliance with state law. That includes a lack of access to financial services that lead such companies to operate on a largely cash basis, making them targets for crime.
HOD adopts Res 104: Urges Congress to end conflict between some state laws and federal law over marijuana regulation and update federal marijuana policy. #ABAAnnual
— American Bar Association (@ABAesq) August 12, 2019
The resolution states that ABA “urges Congress to enact legislation to exempt from the Controlled Substances Act (CSA) any production, distribution, possession, or use of marijuana carried out in compliance with state laws.”
ABA, an association established in 1878 that now touts 411,000 members, also wants Congress to “enact legislation to remove marijuana from Schedule I of the Controlled Substances Act,” which could involve placing it in a less restrictive category or removing it from the list of federally controlled substances altogether.
Finally, the resolution recommends that Congress pass legislation to “encourage scientific research into the efficacy, dose, routes of administration, or side effects of commonly used and commercially available cannabis products in the United States.”
A report attached to the measure provides context on state-level legalization efforts, the history of federal prohibition and the “resulting regulatory quagmire.”
“There is an obvious tension between marijuana’s Schedule I status – which prohibits marijuana in virtually all circumstances—and state regulatory reforms—which increasingly authorize marijuana for at least some purposes,” ABA wrote. “While state and federal law often diverge—on everything from environmental to workplace laws—marijuana policy is the only area where the states regulate and tax conduct the federal government nearly universally prohibits.”
The temporary protections that lawmakers have been able to secure for medical cannabis states and guidance memos from the Justice Department are not enough to relieve the regulatory tension produced by federal prohibition, ABA argued. While the House approved a budget rider that would extend protections to adult-use programs, it’s not clear how that will fare in the Senate—and even if it passes, it must be annually renewed, creating uncertainty.
More fundamentally, however, because the spending riders operate only as a restraint on Justice Department action, they have not prevented other parties from using federal law against state-compliant marijuana businesses and users.
ABA listed various problems that these businesses face under the current regulatory framework: a lack of access to banking services, “unusually high federal taxes,” no federal protection for their trademarks and an increased number of private lawsuits.
“No one should be satisfied with the regulatory quagmire that has resulted from the unresolved tension between state reforms and federal law.”
The report goes on to describe how its recommendations would help resolve some of these issues.
Passing legislation such as the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act would mean “marijuana businesses could obtain banking and legal services, deduct their reasonable business expenses when computing their federal tax liability, obtain federal protection for their trademarks, avoid civil RICO liability, and so on.”
What’s more, Congress could attach provisions to such legislation that would establish a basic federal framework for state cannabis programs by “incentivizing states to adopt and maintain careful controls on marijuana activities,” including age restrictions for adult-use programs.
But creating an exemption for legal cannabis states under the CSA wouldn’t fix all of the problems that federal prohibition is created, which is why ABA also made a scheduling recommendation.
It said that knowledge about marijuana’s risks and benefits has evolved in the years since the drug was placed in Schedule I of the CSA and that it no longer made sense to schedule cannabis in the same category as substances that are decidedly more dangerous. Loosening federal restrictions by rescheduling it could help, but “Congress could even choose to remove marijuana from the CSA altogether, in the same way it exempted alcoholic beverages and tobacco from the statute’s coverage in the first instance,” ABA wrote.
The final part of the resolution discusses the need to support research into cannabis. One area that could be quickly improved is in the sourcing of research-grade marijuana. ABA noted that the Drug Enforcement Administration (DEA) announced in 2016 that it is accepting applications for additional cannabis manufacturers, which could bolster research, for example. Coincidentally, ABA’s resolution on the topic was approved exactly three years after DEA made that announcement, which the agency still has yet to act on.
The measure “urges Congress to actively support scientific research on marijuana,” ABA wrote. “As greater scientific knowledge of the benefits and harms of marijuana develops, Congress and the states can work together to ensure that the benefits of marijuana can be realized while the harms of the drug are properly addressed. Encouraging careful scientific study of marijuana will be beneficial regardless of the direction of marijuana law reform in the future.”
“You can’t do massive blind studies because everyone who does it is afraid they’ll get prosecuted,” Stephen Saltzburg, who moved the resolution, told ABA Journal. “We should have that research. We ought not to have states and [the federal government] flying blind.”
Read the full ABA marijuana resolution and report below:
Photo courtesy of Philip Steffan.
Virginia Has Sealed 64,000 Marijuana Distribution Charges Since Legalization Took Effect This Summer
“These aren’t just numbers and there are families attached.”
By Ned Oliver, Virginia Mercury
Virginia has sealed records documenting more than 64,000 misdemeanor marijuana distribution charges since the state legalized the drug in July.
The figure came out Thursday during a meeting of the legislature’s Cannabis Oversight Commission.
Officials said the records were scrubbed from the state’s criminal record database, which is used by employers like school boards, state agencies and local governments to screen employees.
The state had already sealed 333,000 records detailing charges of simple possession last year after the state reduced the offense to a civil infraction on par with a traffic offense, said Shawn G. Talmadge, the Deputy Secretary of Public Safety and Homeland Security.
Lawmakers directed the state to expand that effort when they voted to broadly legalize recreational use of marijuana earlier this year.
The legislature also agreed to a broader expungement reform that will automatically seal other misdemeanor charges, including underage possession of alcohol, use of a fake ID, petit larceny, trespassing and disorderly conduct. Talmadge said those charges will remain in the system until the state finishes updating the software it uses to track criminal records.
“As of right now, the process is proceeding,” he said.
The Virginia Joint Commission on Cannabis Oversight is meeting now. You can find the agenda and links to livestream and to provide public comment at https://t.co/f1wsPn7SV7
— Jennifer McClellan (@JennMcClellanVA) October 14, 2021
Members of the oversight commission also heard from two advocates who urged them to move fast to address people currently imprisoned for marijuana offenses—a category of people the legalization legislation passed this year did not address.
Chelsea Higgs Wise, the leader of the advocacy group Marijuana Justice, and Gracie Burger, with the Last Prisoner Project, said Department of Corrections data suggests there are currently 10 people being held solely on serious marijuana charges.
They said it remains unknown how many more are being held because of marijuana related probation violations.
“These aren’t just numbers and there are families attached,” Burger said.
DEA Proposes Dramatic Increase In Marijuana And Psychedelic Production In 2022, Calling For 6,300 Percent More MDMA Alone
The Drug Enforcement Administration (DEA) is proposing a dramatic increase in the legal production of marijuana and psychedelics like psilocybin, LSD, MDMA and DMT to be used in research next year.
In a notice scheduled to be published in the Federal Register on Monday, the agency said there’s been a “significant increase in the use of schedule I hallucinogenic controlled substances for research and clinical trial purposes,” and it wants authorized manufacturers to meet that growing demand.
DEA had already massively upped its proposed 2021 quota for cannabis and psilocybin last month, but now it’s calling for significantly larger quantities of research-grade marijuana and a broader array of psychedelics to be manufactured in 2022.
It wants to double the amount of marijuana extracts, psilocybin and psilocyn, quadruple mescaline and quintuple DMT. What especially stands out in the notice is MDMA. The agency is proposing an enormous 6,300 percent boost in the production of that drug—from just 50 grams in 2021 to 3,200 grams in the coming year—as research into its therapeutic potential continues to expand.
LSD would see a 1,150 percent increase, up to 500 grams of the potent psychedelic.
Marijuana itself would get a 60 percent boost under DEA’s proposal, up to 3.2 million grams in 2022 from the 2 million grams last year.
Here’s a visualization of the proposed quota increase from 2021 to 2022 for marijuana and cannabis extracts:
For all other THC, psilocybin, psilocyn and MDMA:
And for other psychedelic substances like LSD, mescaline and DMT:
DEA said in the Federal Register notice that it has been receiving and approving additional applications to “grow, synthesize, extract, and manufacture dosage forms containing specific schedule I hallucinogenic substances for clinical trial purposes” to achieve these ambitious quotas.
“DEA supports regulated research with schedule I controlled substances, as evidenced by increases proposed for 2022 as compared with aggregate production quotas for these substances in 2021,” the agency said, adding that it working “diligently” to process and approve marijuana manufacturers applications in particular, as there’s currently only one farm at the University of Mississippi that’s permitted to cultivate the plant for research.
“Based on the increase in research and clinical trial applications, DEA has proposed increases in 3,4- Methylenedioxyamphetamine (MDA), 3,4-Methylenedioxymethamphetamine (MDMA), 5-Methoxy-N,N-dimethyltryptamine, Dimethyltryptamine, Lysergic acid diethylamide (LSD), Marihuana, Marihuana Extract, Mescaline, Psilocybin, Psilocyn, and All Other Tetrahydrocannabinols to support manufacturing activities related to the increased level of research and clinical trials with these schedule I controlled substances.”
Here are the exact numbers for the proposed 2021 and 2022 quotas:
|All other tetrahydrocannabinol||1,000||2,000|
A 30-day public comment period will be open after the notice is formally published on Monday.
It’s difficult to overstate just how significant the proposed 2022 increases are, but it’s certainly true that scientific and public interest in marijuana and psychedelics has rapidly increased, with early clinical trials signaling that such substances show significant therapeutic potential.
National Institute on Drug Abuse (NIDA) Director Nora Volkow told Marijuana Moment in a recent interview that she was encouraged by DEA’s previous proposed increase in drug production quota. She also said that studies demonstrating the therapeutic benefits of psychedelics could be leading more people to experiment with substances like psilocybin.
Advocates and experts remain frustrated that these plants and fungi remain in the strictest federal drug category in the first place, especially considering the existing research that shows their medical value for certain conditions.
A federal appeals court in August dismissed a petition to require the DEA to reevaluate cannabis’s scheduling under the Controlled Substances Act. However, one judge did say in a concurring opinion that the agency may soon be forced to consider a policy change anyway based on a misinterpretation of the therapeutic value of marijuana.
Separately, the Washington State attorney general’s office and lawyers representing cancer patients recently urged a federal appeals panel to push for a DEA policy change to allow people in end-of-life care to access psilocybin under state and federal right-to-try laws.
Image element courtesy of Kristie Gianopulos.
Supreme Court Won’t Hear Case On Legalizing Safe Drug Consumption Sites, But Activists Are Undeterred
The U.S. Supreme Court (SCOTUS) has rejected a request to hear a case on the legality of establishing safe injection sites where people can use illicit drugs in a medically supervised environment.
The justices announced on Tuesday that they decided against taking up the case raised by the nonprofit Safehouse, despite the pleas of attorneys general from 10 states and D.C. who recently filed amici briefs urging the court’s involvement.
Representatives from 14 cities and counties, as well as the mayor of Philadelphia, which is at the center of the current case, also filed briefs in support of the case in recent days.
Safehouse was set to launch a safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration. It filed a petition with the nation’s highest court in August to hear the case.
But while the Supreme Court declined to take action—and the Biden administration passed up its voluntary opportunity to weigh in at this stage, which may well have influenced the justices’ decision—activists say the battle will continue at a lower federal court level, where the administration will have to file briefs revealing its position on the issue.
Disappointed but not surprised U.S. Supreme Court declined to hear our case. We’re pursuing our claims in federal court. As that litigation proceeds, Biden administration will have to take a position, which it avoided by waiving its right to respond to our Supreme Court petition.
— Safehouse (@SafehousePhilly) October 13, 2021
“We were disappointed that the government chose not to respond to our petition,” Safehouse Vice President Ronda Goldfein told Filter. “They said, ‘We’re going to waive our right to respond,’ [and] the Supreme Court declined to review our case. Ordinarily that sounds like the end of the road—but in our case we are still pursuing our claims in a different venue.”
That venue will be the the federal district court in Philadelphia, where activists plan to submit multiple arguments related to religious freedom and interstate commerce protections. The Biden administration will be compelled to file a response in that court by November 5.
“If they don’t respond, they lose,” Goldfein said.
A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—previously filed a brief urging the Supreme Court to take up Safehouse’s safe injection case.
Fair and Justice Prosecution, the group that coordinated the amicus brief, also organized a tour of Portugal for 20 top prosecutors in 2019 so they could learn about the successful implementation of the country’s drug decriminalization law.
If the Supreme Court were to have taken the case and rule in favor of Safehouse, it could have emboldened advocates and lawmakers across the country to pursue the harm reduction policy.
The governor of Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs in a medically supervised environment. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.
Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.
A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until 2022.