President Joe Biden’s nominee to serve as U.S. attorney general has reiterated in written testimony to multiple senators that he does not feel the Department of Justice should be using its resources to prosecute people who are acting in compliance with state marijuana laws.
In a series of responses to questions from lawmakers who followed up on last week’s committee confirmation hearings, Judge Merrick Garland made clear that, from his perspective, the government should be focusing on large-scale criminal enterprises that circumvent state legalization laws instead of going after people who are abiding by local cannabis policies.
He made similar comments during questioning before the Senate Judiciary Committee last week. The panel formally approved his confirmation on Monday, clearing the path to a full vote in the chamber.
“I do not think it the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana,” he said in response to a question from Ranking Member Chuck Grassley (R-IA) about how he would navigate the federal-state marijuana policy conflict. “I do think we need to be sure, for example, that there are no end runs around the state laws by criminal enterprises, and that access is prohibited to minors.”
That view is consistent with policies put into place under Obama—known as the Cole memorandum—and then rescinded by President Donald Trump’s first attorney general, Jeff Sessions.
Pressed on whether he generally supports efforts to decriminalize or legalize cannabis, the attorney general nominee didn’t give a specific answer but gave an answer focused solely on the harms of current punitive policies.
“Criminalizing the use of marijuana has contributed to mass incarceration and racial disparities in our criminal justice system,” he wrote, “and has made it difficult for millions of Americans to find employment due to criminal records for nonviolent offenses.”
Legalization advocates are pleased that the nominee has put his views about respecting state marijuana laws into writing.
“For all intents and purposes, Judge Garland’s responses indicate that he has no intention of curbing the progress being made in the regulation and consumer access of cannabis and for that, we are relieved,” Justin Strekal, political director of NORML, told Marijuana Moment. “Pending a successful confirmation, we look forward to working with him and his team to reimplement a policy similar to the Cole Memo and explore solutions to grant immediate relief to those who have suffered federal charges as Congress continues to negotiate on a comprehensive fix to end prohibition.”
Grassley also asked Garland what role he sees the Justice Department playing “in the changing landscape of marijuana legalization, decriminalization, and recreational use.”
“The Department of Justice has not historically devoted resources to prosecuting individuals for simple possession of marijuana,” he said. He then repeated his point about departmental priorities.
But while Garland’s responses reflect a friendly attitude toward cannabis policy as far as advocates are concerned, he did say in response to a question from Sen. Ted Cruz (R-TX) about prosecutorial discretion that “the Executive Branch cannot simply decide, based on a policy disagreement, that it will not enforce a law at all.”
Another Grassley question noted Biden’s ongoing opposition to federal legalization and support for decriminalizing cannabis possession and expunging prior marijuana records. He asked whether Garland sees “any contradictions” in that policy stance.
“As I testified at my hearing, it is important to focus our attention on violent crimes and other crimes that greatly endanger our society, and prosecutions for simple marijuana possession are not an effective use of limited resources,” the judge replied. “As I testified, we have seen disparate treatment in these prosecutions that has had a harmful impact on people and communities of color, including stymied employment opportunities and social and economic instability.”
Garland was also peppered with questions related to laws governing impaired driving from marijuana. He was asked by Grassley, Cruz and Sen. Marsha Blackburn (R-TN) about the issue.
Questioned about how he will support law enforcement agencies combat instances of impaired driving from THC, for example, he said “I have not had an opportunity to examine this public safety question,” and in confirmed, “I look forward to learning about it, and determining if the Department has programs or resources that could be helpful.”
He further stated that he is “not familiar with the technology that is available to accurately assess whether a driver has unsafe levels of THC in his or her system” in response to a question from Cruz.
“The Obama-Biden administration refused to enforce certain federal drug laws to avoid triggering mandatory minimum sentences enacted by Congress. Is this consistent with the rule of law?” the senator from Texas further asked.
“I believe that the Department should give discretion to its prosecutors to make the offense and the charge fit the crime and be proportional to the damage that it does to our society,” Garland wrote. “In addition, as President Biden has suggested, we should consider the elimination of mandatory minimums so that we, once again, give authority to trial judges to make determinations based on all of the sentencing factors that judges normally apply granting them the ability to do justice in individual cases.”
Garland, who was previously nominated by Obama to serve on the Supreme Court only to have his nomination blocked by Senate Republicans, also said during last week’s hearing that he thinks the enforcement of marijuana criminalization is the “perfect example” of how the criminal justice system is racially biased and disproportionately impacts communities of color. And because cannabis possession arrests can “follow a person for the rest of their lives,” he said the Justice Department should avoid prosecuting those cases.
These comments starkly contrast those of Trump’s first pick to head the DOJ, Sessions, who took actions on marijuana policy that are viewed as hostile by advocates.
Trump’s second attorney general, William Barr, maintained that Congress should take steps to resolve the state-federal marijuana policy conflict. But he did not make any definitive statements about the need to shift gears administratively, nor did he dedicate time while in office to recognize the racial disparities of cannabis enforcement.
Barr did allegedly direct the Justice Department’s Antitrust Division to carry out investigations into 10 marijuana mergers out of personal animus for the industry. A whistleblower who testified before a key House committee claimed the investigations were unnecessary and wasted departmental resources. But the assistant attorney general for the Antitrust Division later argued that the investigations were actually “consistent with protecting consumers’ access to cannabis products, not with animosity toward the industry.”
Separately, the Biden administration is instituting a new policy of granting waivers to some White House staff who’ve used cannabis. The Office of Personnel Management has also distributed a memo last week to federal agencies stipulating that admitting to past marijuana use should not automatically disqualify people from being employed in the federal government.
That’s a step in the right direction, as far as advocates are concerned, but they’re still hoping the president will come around on the issue of legalizing cannabis for adult use. The chances of that seem somewhat dimmed, however, given a new report that Vice President Kamala Harris is adopting Biden’s more limited policy platform on cannabis, despite sponsoring legalization legislation during her time in the Senate.
Harris has stepped back her calls for broad reform in recent months, opting instead to push for cannabis decriminalization and expungements in line with the president’s agenda. She spent significant time during her own presidential campaign making the case for federally legalizing marijuana, but that specific narrative has been largely abandoned since she joined Biden’s presidential ticket in August.
Decriminalization and expungements is the favored policy of Biden, who also backs medical cannabis legalization, modestly rescheduling the plant under federal law and letting states set their own policies on the issue.
All of this comes as Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NY) are working to introduce legislation to end the federal prohibition on marijuana. The trio has already met with advocates and stakeholders to gain input on what that legislation should include.
Read the full text of Garland’s Q&A with senators on marijuana policy issues below:
The Justice Department, as part of the federal government, must enforce federal laws. An area where this has led to confusion is the enforcement of federal law in states where marijuana has been legalized. As you are aware, marijuana is a Schedule I drug under the Controlled Substances Act. a. Under your leadership, how will you navigate the Justice Department’s enforcement of federal law in states where marijuana has been legalized?
RESPONSE: As I suggested at my hearing, I do not think it the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana. I do think we need to be sure, for example, that there are no end runs around the state laws by criminal enterprises, and that access is prohibited to minors.
What do you see the role of the Justice Department to be in the changing landscape of marijuana legalization, decriminalization, and recreational use?
RESPONSE: The Department of Justice has not historically devoted resources to prosecuting individuals for simple possession of marijuana. As I suggested at my hearing, I do not think it the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana. I do think we need to be sure, for example, that there are no end runs around the state laws by criminal enterprises, and that access is prohibited to minors.
Do you support efforts to decriminalize or legalize marijuana?
RESPONSE: As I said at my hearing, criminalizing the use of marijuana has contributed to mass incarceration and racial disparities in our criminal justice system, and has made it difficult for millions of Americans to find employment due to criminal records for nonviolent offenses.
Legalized marijuana use may contribute to increased driving deaths. How will you support efforts by local and state law enforcement to combat driving under the influence of marijuana?
RESPONSE: I have not had an opportunity to examine this public safety question. If I am confirmed, I look forward to learning about it, and determining if the Department has programs or resources that could be helpful.
While Biden is opposed to legalization of marijuana, he supports decriminalization of possession and expungements of marijuana offenses. Do you see any contradictions in President Biden’s vision of maintaining the drug’s federally illegal status while decriminalizing minor possession and expunging prior conviction records?
RESPONSE: As I testified at my hearing, it is important to focus our attention on violent crimes and other crimes that greatly endanger our society, and prosecutions for simple marijuana possession are not an effective use of limited resources. As I testified, we have seen disparate treatment in these prosecutions that has had a harmful impact on people and communities of color, including stymied employment opportunities and social and economic instability.
Are you aware whether drug trafficking organizations continue to operate illicit marijuana markets in states with legalized marijuana? If so, what steps will you take to combat drug trafficking organizations that may use the cover of the legal marijuana market?
RESPONSE: As I testified at my hearing, I think we need to be sure that there are no end run around the state laws by criminal enterprises, and that kind of enforcement is important.
Where marijuana is “legalized,” does law enforcement currently have technology to accurately determine whether a driver has unsafe levels of THC in his or her system for the purposes of driving? a. If not, what is the solution for this problem?
RESPONSE: Because I am not currently at the Department, I am not familiar with the technology that is available to accurately assess whether a driver has unsafe levels of THC in his or her system.
By most indications, illicit and large-scale marijuana trafficking activity has increased; if you are confirmed, what actions will you undertake to counter the trend?
RESPONSE: As I testified at my hearing, it is important to focus our attention on violent crimes and other crimes that greatly endanger in our society. Large-scale illicit drug trafficking should be distinguished from simple marijuana possession and should be vigorously investigated and prosecuted.
Is it consistent with the rule of law for federal prosecutors to refuse to prosecute individuals who violate federal drug laws because the President disagrees with those laws?
RESPONSE: As I testified at my hearing, it is important to prioritize the Department’s limited resources to prosecute violent crimes and other crimes that greatly endanger our society. Large-scale illicit drug trafficking should be distinguished from simple marijuana possession. But the Executive Branch cannot simply decide, based on a policy disagreement, that it will not enforce a law at all.
The Obama-Biden administration refused to enforce certain federal drug laws to avoid triggering mandatory minimum sentences enacted by Congress. Is this consistent with the rule of law?
RESPONSE: As I testified at my hearing, I support the policy I helped draft for Attorney General Reno, and that was furthered by Attorney General Holder, in which prosecutors are not required to seek in every case the most serious offense with the highest possible sentence. I believe that the Department should give discretion to its prosecutors to make the offense and the charge fit the crime and be proportional to the damage that it does to our society. In addition, as President Biden has suggested, we should consider the elimination of mandatory minimums so that we, once again, give authority to trial judges to make determinations based on all of the sentencing factors that judges normally apply granting them the ability to do justice in individual cases.
Although marijuana is still considered a federally controlled schedule one drug, some states have legalized marijuana use within their jurisdictions. Do law enforcement agencies at the federal, state or local level have universal access to technology that can accurately assess whether a driver has unsafe levels of THC in his or her system? If not, what solution do you recommend for the public safety problem of driving under the influence of marijuana?
RESPONSE: I have not had an opportunity to examine this public safety issue. If I am confirmed, I look forward to learning about this concern, and determining if the Department has programs or resources that could be helpful.
Top IRS Official Says Marijuana Banking Reform Would Help Feds ‘Get Paid’
The Internal Revenue Service (IRS) would like to get paid—and it’d help if the marijuana industry had access to banks like companies in other legal markets, an official with the federal department said. She also talked about unique issues related to federal tax deductions for cannabis businesses.
At an event hosted by UCLA’s Annual Tax Controversy Institute on Thursday, IRS’s Cassidy Collins talked about the “special type of collection challenge” that the agency faces when it comes to working with cannabis businesses while the product remains federally illegal.
While IRS isn’t taking a stand on federal marijuana policy, Collins said that the status quo leaves many cannabis businesses operating on a cash-only basis, creating complications for the agency, in part by making it harder for banks to “pay us.”
“The reason why [the marijuana industry is] cash intensive is twofold,” she said. “Number one, a lot of customers don’t want a paper trail showing that they’re buying marijuana, and number two, the hesitancy of banks to allow marijuana businesses to even bank with them.”
Of course, the reason why many financial institutions remain hesitant to take on cannabis companies as clients is because the plant is a strictly controlled substance under federal law.
“There’s been a number of legislative bills that have been introduced—and I am definitely not expressing any opinion personally or on behalf of the IRS about any pending or proposed legislation,” Collins, who is a senior counsel in the IRS Office of Chief Counsel, said. “But it is interesting to note that, if the law changed so that the marijuana businesses could have banks, that would make the IRS’s job to collect [taxes] a lot easier. As part of collection, we want the money. That’s our end goal there.”
A major part of what makes cannabis businesses unique is that they don’t qualify for traditional tax credits under an IRS code known as 280E. That policy “prohibits them from claiming deductions for business expenses because they’re technically being involved in drug trafficking,” Collins explained at the event, from which small excerpts of her comments were reported by Bloomberg.
There are some options available to lessen the burden on marijuana firms, however. At the end of the day, “IRS will work with marijuana companies because, again, we want to get paid,” Collins said.
One of the ways the agency works with marijuana business operators is to have them visit designated IRS “tax assistance centers” that accept cash payments in excess of $50,000. But the official warned businesses to “be prepared to be there for a little while” as the center checks—and double checks—the amount of cash being submitted.
“Revenue officers will assist the marijuana companies in paying us,” she said.
IRS officials could also help cannabis firms by having officials accompany them “to the bank in order to try to help the taxpayer secure a cashier’s payment to pay the IRS, as well as using money orders,” she said, adding that “our revenue officers are are wanting to work with the marijuana companies to help assist them to pay us.”
“When the revenue officers are there in person with the taxpayer, that could potentially help increase the likelihood that the bank will cooperate and help the taxpayer transition into a cashier’s check,” she continued. “And that has been a trend since this first became legal [at the state level], that more and more banks are allowing cannabis companies to bank with them.”
In a report published earlier this year, congressional researchers examined tax policies and restrictions for the marijuana industry—and how those could change if any number of federal reform bills are enacted.
IRS, for its part, said last month that it expects the cannabis market to continue to grow, and it offered some tips to businesses on staying compliant with taxes while the plant remains federally prohibited.
As it stands, banks and credit unions are operating under 2014 guidance from the Financial Crimes Enforcement Network (FinCEN) that lays out reporting requirements for those that choose to service the marijuana industry.
Leaders in both chambers of Congress are working on legalization bills to end federal marijuana prohibition. But stakeholders are hopeful that, in the interim, legislators will enact modest marijuana banking reform. Legislation to protect financial institutions from being penalized for working with cannabis businesses passed the House for the fifth time last month.
Rodney Hood, a board member of the National Credit Union Administration, wrote in a Marijuana Moment op-ed this month that legalization is an inevitability—and it makes the most sense for government agencies to get ahead of the policy change to resolve banking complications.
IRS separately hosted a forum in August dedicated to tax policy for marijuana businesses and cryptocurrency.
Earlier this year, IRS Commissioner Charles Rettig told Congress that the agency would “prefer” for state-legal marijuana businesses to be able to pay taxes electronically, as the current largely cash-based system under federal cannabis prohibition is onerous and presents risks to workers.
Former Treasury Secretary Steven Mnuchin said in 2019 that he’d like to see Congress approve legislation resolving the cannabis banking issue and he pointed to the fact that IRS has had to build “cash rooms” to deposit taxes from those businesses as an example of the problem.
IRS released updated guidance on tax policy for the marijuana industry last year, including instructions on how cannabis businesses that don’t have access to bank accounts can pay their tax bills using large amounts of cash.
The update appears to be responsive to a Treasury Department internal watchdog report that was released earlier in the year. The department’s inspector general for tax administration had criticized IRS for failing to adequately advise taxpayers in the marijuana industry about compliance with federal tax laws. And it directed the agency to “develop and publicize guidance specific to the marijuana industry.”
Luxembourg Set To Become First European Country To Legalize Marijuana Following Government Recommendation
Luxembourg is poised to become the first European country to legalize marijuana, with key government agencies putting forward a plan to allow the possession and cultivation of cannabis for personal use.
The ministers of justice and homeland security on Friday unveiled the proposal, which will still require a vote in the Parliament but is expected to pass. It’s part of a broader package of reform measures the agencies are recommending.
Under the marijuana measure, adults 18 and older could grow up to four plants. However, under the non-commercial model that is being proposed, possessing more than three grams in public would still be a civil offense, carrying a fine of €25-500 ($29-581). Currently, the maximum fine for possession is €2,500 ($2,908).
In terms of access, adults would be able to buy and trade cannabis seeds for their home garden.
Justice Minister Sam Tamson said the government felt it “had to act” and characterized the home cultivation policy change as a first step, The Guardian reported.
👉🏻élaboration du projet de loi usage privé du #cannabis : jusqu’à 4 plantes à domicile & décorrectionnalisation <3g
👉🏻renforcement de la prévention & de l’accompagnement
👉🏻⬆️des moyens de la police
👉🏻élaboration d’un projet de production/vente #Luxembourg pic.twitter.com/8yre0Udt8J
— Sam Tanson (@SamTanson) October 22, 2021
“The idea is that a consumer is not in an illegal situation if he consumes cannabis and that we don’t support the whole illegal chain from production to transportation to selling where there is a lot of misery attached,” he said. “We want to do everything we can to get more and more away from the illegal black market.”
While limited in scope, the reform would make Luxembourg the first country in Europe to legalize the production and possession of marijuana for recreational use. Cannabis has been widely decriminalized in certain countries in the continent, but it has remained criminalized by statute.
Government sources in Luxembourg told The Guardian that plans are in the works to develop a program where the state regulates the production and distribution of marijuana. Tamson said they are working to resolve “international constraints” before taking that step, however, referring to United Nations treaty obligations that multiple U.S. states and other countries like Canada and Uruguay have openly flouted.
The measures include:
🟢 Regulation of cannabis use and cultivation: adults will be able to legally cultivate up to four cannabis plants for their own use, provided the cultivation is happening at their place of residence.
— European Greens (@europeangreens) October 22, 2021
For now, the country is focusing on legalization within a home setting. Parliament is expected to vote on the proposal in early 2022, and the ruling parties are friendly to the reform.
This has been a long time coming, as a coalition of major parties of Luxembourg agreed in 2018 to enact legislation allowing “the exemption from punishment or even legalization” of cannabis.
Meanwhile in the U.S., congressional lawmakers are working to advance legalization legislation. A key House committee recently approved a bill to end marijuana prohibition, and Senate leadership is finalizing a separate reform proposal.
In Mexico, a top Senator said this week that lawmakers could advance legislation to regulate marijuana in the coming weeks. The Supreme Court has already ruled that adults cannot be criminalized over possession or cultivation, but there’s currently no program in place to provide access.
Photo courtesy of Mike Latimer.
New Bipartisan Marijuana Research Bill In Congress Would Let Scientists Study Dispensary Products
A bipartisan group of federal lawmakers introduced a bill on Thursday to remove barriers to conducting research on marijuana, including by allowing scientists to access cannabis from state-legal dispensaries.
The Medical Marijuana Research Act, filed by the unlikely duo of pro-legalization Rep. Earl Blumenauer (D-OR) and prohibitionist Rep. Andy Harris (R-MD), would streamline the process for researchers to apply and get approved to study cannabis and set clear deadlines on federal agencies to act on their applications.
“Congress is hopelessly behind the American people on cannabis, and the quality of our research shows why that is an urgent problem,” Blumenauer told Marijuana Moment. “Despite the fact that 99 percent of Americans live in a state that has legalized some form of cannabis, federal law is still hamstringing researchers’ ability to study the full range of health benefits offered by cannabis, and to learn more about the products readily available to consumers.”
“It’s outrageous that we are outsourcing leadership in that research to Israel, the United Kingdom, Canada, and others. It’s time to change the system,” he said.
Late last year, the House approved an identical version of the cannabis science legislation. Days later, the Senate passed a similar bill but nothing ended up getting to the president’s desk by the end of the last Congress. Earlier this year, a bipartisan group of senators refiled their marijuana research measure for the current 117th Congress.
Meanwhile, lawmakers are also advancing a separate strategy to open up dispensary cannabis to researchers. Large-scale infrastructure legislation that has passed both chambers in differing forms and which is pending final action contains provisions aimed at allowing researchers to study the actual marijuana that consumers are purchasing from state-legal businesses instead of having to use only government-grown cannabis.
The new bill filed this week by Blumenauer and Harris, along with six other original cosponsors, would also make it easier for scientists to modify their research protocols without having to seek federal approval.
Marijuana Moment is already tracking more than 1,200 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
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It would additionally mandate that the Drug Enforcement Administration (DEA) license more growers and make it so there would be no limit on the number of additional entities that can be registered to cultivate marijuana for research purposes. It would also require the U.S. Department of Health and Human Services (HHS) to submit a report to Congress within five years after enactment to overview the results of federal cannabis studies and recommend whether they warrant marijuana’s rescheduling under federal law.
“The cannabis laws in this country are broken, including our laws that govern cannabis research,” Blumenauer said in remarks in the Congressional Record. “Because cannabis is a Schedule I substance, researchers must jump through hoops and comply with onerous requirements just to do basic research on the medical potential of the plant.”
The new legislation will “both streamline the often-duplicative licensure process for researchers seeking to conduct cannabis research and facilitate access to an increased supply of higher quality medical grade cannabis for research purposes,” he said, adding that expanded studies will help make sure “Americans have adequate access to potentially transformative medicines and treatments.”
For half a century, researchers have only been able to study marijuana grown at a single federally approved facility at the University of Mississippi, but they have complained that it is difficult to obtain the product and that it is of low quality. Indeed, one study showed that the government cannabis is more similar to hemp than to the marijuana that consumers actually use in the real world.
There’s been bipartisan agreement that DEA has inhibited cannabis research by being slow to follow through on approving additional marijuana manufacturers beyond the Mississippi operation, despite earlier pledges to do so.
In May, the agency finally said it was ready to begin licensing new cannabis cultivators. Last week, DEA proposed a large increase in the amount of marijuana—and psychedelics such as psilocybin, LSD, MDMA and mescaline—that it wants produced in the U.S. for research purposes next year.
Under the new House bill, the agency would be forced to start approving additional cultivation applications for study purposes within one year of the legislation’s enactment.
HHS and the attorney general would be required under the bill to create a process for marijuana manufacturers and distributors to supply researchers with cannabis from dispensaries. They would have one year after enactment to develop that procedure, and would have to start meeting to work on it within 60 days of the bill’s passage.
In general, the legislation would also establish a simplified registration process for researchers interested in studying cannabis, in part by reducing approval wait times, minimizing costly security requirements and eliminating additional layers of protocol review.
Read the full text of the new marijuana research bill below: