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Biden AG Pick Restates Pledge To Respect State Marijuana Laws, In Writing

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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That view is consistent with policies put into place under Obama—known as the Cole memorandum—and then rescinded by President Donald Trump’s first attorney general, Jeff Sessions.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: 

Grassley

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.

Cruz

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.

Blackburn

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 Washington, D.C. Lawmaker Files Competing Legal Marijuana Bill Days After Mayor Unveils Her Plan

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Kyle Jaeger is Marijuana Moment's Los Angeles-based associate editor. His work has also appeared in High Times, VICE and attn.

Business

New House Bills Would Make Cannabis Businesses Eligible For Federal Small-Business Aid

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Lawmakers in the U.S. House of Representatives have introduced three new bills to make state-legal marijuana businesses eligible for federal small business services, including loans, disaster relief and grant programs.

The package of legislation is aimed at establishing parity for cannabis businesses, which are currently prohibited from receiving federal aid due to marijuana still being classified as a Schedule I controlled substance. The country’s legal cannabis industry nevertheless now supports nearly 320,000 full-time jobs in the U.S., according to industry estimates.

The measures are largely similar to legislation introduced by the lawmakers in 2019, with some small changes.

One bill, sponsored by House Small Business Committee Chairwoman Nydia Velázquez (D-NY), would allow marijuana businesses to access resources from the federal Small Business Administration (SBA). The Ensuring Safe Capital Access for All Small Businesses Act of 2021, which had not been assigned a bill number as of Tuesday afternoon, would expand access to services such as microloans, disaster assistance and the agency’s loan guaranty program.

“With more and more states pursuing legalization, including my home state of New York, there are a growing number of legitimate small businesses that are excluded from critical SBA programs,” Velázquez said in a statement, noting that much of the cannabis industry consists of small businesses.

Compared to Velázquez’s 2019 bill, the new version adds clauses meant to expand the availability of services. While the 2019 bill applied to SBA itself, provisions in the new legislation also prevent SBA intermediaries, private lenders and state and local development companies from declining to work with businesses simply because of their marijuana-related work.

Another new section deals with debentures—certain unsecured loan certificates—and clarifies that SBA may not decline to purchase or guarantee a debenture just because of a business’s involvement in cannabis. Nor can other small business investment companies decline to provide assistance to the cannabis sector.

“This legislation will spark growth by extending affordable capital to small firms in the cannabis space,” she continued. “Simultaneously, the bill acknowledges the structural disadvantages facing entrepreneurs of color and seeks to level the playing field.”

Another newly refiled measure, H.R. 2649, sponsored by Rep. Dwight Evans (D-PA), would establish a U.S. Small Business Administration (SBA) grant program to provide funding to state and local governments to help them navigate the licensing process for cannabis businesses. The bill, which also removes marijuana from the Controlled Substances Act, specifies that the grant money should be used to benefit communities disproportionately impacted by the drug war.

“My bill would act as a poverty-buster and help homegrown small businesses, which are the backbone of our economy and our neighborhoods. We need to make sure that the booming legal cannabis industry does not become consolidated in the hands of a few big companies,” Evans said.


Marijuana Moment is already tracking more than 1,000 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.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

A third bill, H.R. 2649, from Rep. Jared Golden (D-ME), would prohibit SBA partners that provide guidance and training services from denying help to businesses solely because of involvement in cannabis. The changes would affect providers such as SBA’s Small Business Development Centers, Women’s Business Centers and the Veterans Business Outreach Centers, among others.

“Our continued economic recovery depends on the health of American small businesses of all kinds. Especially in this environment, no Maine small business owner should be turned away from crucial SBA programs that could help them create jobs and lift up the economy,” said Rep. Golden. “My bill would help address this problem by providing small business owners directly or indirectly associated with the cannabis industry with access to the services and resources they need to get their small businesses off the ground and grow.”

Meanwhile, federal lawmakers have been making headway on other cannabis-related proposals. The House passed a cannabis banking bill on Monday, and broader legislation to legalize cannabis at the federal level is expected to be introduced soon.

The banking legislation would ensure that financial institutions can take on cannabis business clients without facing federal penalties. Fear of sanctions has kept many banks and credit unions from working with the industry, forcing marijuana firms to operate on a cash basis that makes them targets of crime and creates complications for financial regulators. The full House passed the bill on a 321–101 vote.

“Even if you are opposed to the legalization of cannabis, you should support this bill,” sponsor Rep. Ed Perlmutter (D-CO) said on the House floor. “The fact is that people in states and localities across the country are voting to approve some level of cannabis use, and we need these cannabis businesses and employees to have access to checking accounts, payroll accounts, lines of credit, credit cards and more.

Other Democrats, including Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) are working on legislation that would end federal cannabis prohibition completely.

Schumer said last week that the long-awaited proposal would be introduced “shortly” and placed on the floor “soon.” Schumer has so far declined to discuss the bill’s specifics, though he’s stressed that it will prioritize small businesses and people most historically impacted by the drug war.

In an interview with Marijuana Moment this week, Schumer worried that passage of the House banking bill could actually undermine broader congressional cannabis reform this year.

On the House side, Judiciary Chairman Jerrold Nadler (D-NY) said recently that he plans to reintroduced his own legalization bill, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which cleared the House in a landmark vote last year but did not advance in GOP-controlled the Senate.

Meanwhile, support for legalization among U.S. voters continues to grow. More than 9 in 10 Americans (91 percent) now support legalizing cannabis for either medical or adult use, according to a Pew Research Center poll released on Friday. Sixty percent of respondents said that cannabis should be legal for both medical and adult use. Thirty-one percent said it should be legalized for therapeutic purposes only, while just eight percent said it should continue to be criminalized across the board.

A majority of those in every age, race and political demographic included in the poll said they feel marijuana should be legal in some form, although many Republicans remain wary of adult-use legalization. Seventy-two percent of Democrats favored both medical and adult-use legalization compared to only 47 percent of Republicans.

Among the minority in opposition to federal legalization: President Joe Biden (D). White House Press Secretary Jen Psaki said last month that the president’s position on the issue “has not changed,” meaning he still opposes the reform. on Tuesday, Psaki refused to say whether Biden would sign or veto a cannabis legalization bill if passed by Congress.

The president instead backs modestly rescheduling the plant, decriminalizing possession, legalizing medical cannabis, expunging prior marijuana records and letting states set their own policies.

Read the full text of the new legislation below:

Ensuring Safe Capital Access for All Small Businesses Act of 2021 by Marijuana Moment on Scribd

Ensuring Access to Counseli… by Marijuana Moment

Homegrown Act by Marijuana Moment on Scribd

Schumer Worries Senate Marijuana Banking Vote Could Undermine Broader Legalization Push

 

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Politics

Biden Won’t Commit To Sign Marijuana Bill If Passed By Congress, Press Secretary Says

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White House Press Secretary Jen Psaki on Tuesday declined to say whether President Joe Biden would sign or veto a bill to federally legalize marijuana if it arrives on his desk, noting that his cannabis policy position is at odds with broader proposals that congressional Democratic leaders are working on.

She was also asked about his stance on marijuana banking reform, the disconnect between public opinion favoring legalization and the president’s opposition and whether Biden plans to revisit clemency applications for those facing federal sentences over cannabis.

The noncommittal response to the legalization question comes on the unofficial cannabis holiday 4/20—a day that has seen a wide range of politicians, including Senate Majority Leader Chuck Schumer (D-NY), voice support for comprehensive marijuana reform.

Psaki was pressed on the Senate leader’s remarks and asked whether Biden would support legislation to end federal cannabis prohibition if Congress approved it.

“The president supports leaving decisions regarding legalization for recreational use up to the states, rescheduling cannabis as a Schedule II drug so researchers can study its positive and negative impacts and, at the federal level, he supports decriminalizing marijuana use and automatically expunging any prior criminal records,” she said. “He also supports legalizing medicinal marijuana so that’s his point of view on the issue.”

Biden’s positions to that end are well known, but an outstanding question has been whether his opposition to adult-use legalization is so strong that he would reject a reform proposal such as those currently being drafted in the House and Senate.

Asked directly what action the president would take if a federal legalization bill was sent to his desk, Psaki signaled that he wouldn’t be inclined to sign it, stating “I just have outlined what his position is, which isn’t the same as what the House and Senate have proposed, but they have not yet passed a bill.”

The reporter followed up to ask about a separate cannabis pledge Biden made as a presidential candidate, when he said people incarcerated in federal prisons over non-violent marijuana offenses should be released.

Psaki said that would be addressed if cannabis was rescheduled to Schedule II—a dubious claim given that there are still serious penalties for offenses involving substances in that category as well. She also didn’t provide any insight into whether the president is proactively pushing for the modest scheduling change.

Later in the briefing, the press secretary was asked where Biden stands on legislation to protect banks that service state-legal marijuana businesses from being penalized by federal regulators. The House approved the Secure and Fair Enforcement (SAFE) Banking Act along bipartisan lines on Monday.

She said it was a “good question,” but she wasn’t sure and told the reporter she would follow up with a response later.

When pushed on Biden’s opposition to the legalization in the face of mounting, majority support among Americans, Psaki said that while he’s in favor of decriminalization and legalizing medical marijuana, he wants more research on the “positive and negative effects” of adult-use legalization.

“He’ll look at the research once that’s concluded,” she said. “Of course we understand the movement that’s happening toward it. I’m speaking for what his position is and what long, consistently has been his position. He wants to decriminalize, but again, he’ll look at the research of the positive and negative impacts.”

The press conference ended with a final question about cannabis policy—specifically whether the Biden administration plans to revisit requests for clemency for federal cannabis convictions. The reporter cited the case of Luke Scarmazzo, who was sentenced to 22 years in federal prison for operating a state-legal medical cannabis business in California, as an example.

“Given, as you’ve noted in the briefing, the president’s support for decriminalization, support for expunging exactly these types of offenses, are there any plans to revisit some of those bids for clemency?” the reporter asked.

“Well, I would just take it as an opportunity to reiterate that the president supports legalizing medicinal marijuana,” Psaki said. “It sounds like this would have been applicable in this case, and of course decriminalizing marijuana use and automatically expunging any prior criminal records. In terms of individual cases, I can’t get ahead of those obviously.”

These question come, of course, on 4/20. But they also come at a time when there’s a concerted push in both chambers of Congress to seize the opportunity they have with Democratic control to pass legalization legislation.

Schumer, Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) have been working on a bill on their side. The majority leader told Marijuana Moment on Monday that he’s working to push the president in a pro-legalization direction as they draft the measure.

Schumer said last week that the legislation will be introduced and placed on the floor “soon.”

On the House side, Judiciary Chairman Jerrold Nadler (D-NY) said recently that he plans to reintroduced his legalization bill, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which cleared the chamber last year but did not advance in the Senate under GOP control.

Schumer Worries Senate Marijuana Banking Vote Could Undermine Broader Legalization Push

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Culture

How Politicians Are Celebrating The Marijuana Holiday 4/20 This Year

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The country has come a long way since the days of politicians dismissing or shying away from marijuana issues. And a good example of that shift is the ever-growing number of lawmakers who are leaning into the cannabis holiday 4/20 with calls for reform.

For example, to kick of Tuesday’s Senate session, Majority Leader Chuck Schumer (D-NY) spoke on the floor about the need to end federal marijuana prohibition, saying that “hopefully the next time this unofficial holiday 4/20 rolls around, our country will have made progress.”

Then there are the tweets—so many tweets—from state and congressional lawmakers, office seekers and regulators marking the occasion. It’s become a theme each year, and as more states pursue legalization, it seems more elected officials have grown comfortable embracing the holiday in their own ways.

Here’s what politicians are saying about cannabis this 4/20: 

Members of Congress

Congressional candidates

State officials and parties

Local officials

Former federal officials

International lawmakers

Meanwhile, dozens of brands and organizations are also celebrating 4/20 with a variety of promotions, events and calls to action.

Schumer Worries Senate Marijuana Banking Vote Could Undermine Broader Legalization Push

Photo courtesy of Brian Shamblen.

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