As Washington State’s legislative session drew to a close this weekend, lawmakers approved a bill that for the next two years would make drug possession a misdemeanor. After that, the criminal penalties would disappear—a move designed to force lawmakers back to the negotiating table.
The measure is a temporary response to a state Supreme Court decision in February that struck down Washington’s felony drug possession law as unconstitutional, ending the prohibition of simple possession. Some progressive lawmakers have called the ruling an opportunity to leave the drug war behind, while moderates and conservatives have insisted that reinstating criminal penalties is necessary to incentivize people to enter treatment.
In an attempt at compromise, the bill’s criminal penalty provisions will expire on July 1, 2023, again leaving Washington without a law against drug possession. The sunset clause is meant to give lawmakers time to craft a more permanent replacement or surrender the issue to local jurisdictions. In the meantime, the state will assemble an advisory committee to develop recommendations on how to best ensure that people with substance use disorder receive care.
It rejects the felony model that does not work & focuses on diverting those with substance use disorder into treatment. Makes possession a simple misdemeanor for the next 2 yrs while #WA builds out our behavioral health system & works to find the best path forward. #waleg 2/2
— WA House Democrats (@WAHouseDems) April 24, 2021
An amended version of the bill, SB 5476, passed the House of Representatives on a 80–18 vote on Saturday. Later that evening, the Senate accepted the House-amended version and voted 26–23 to send the final bill to Gov. Jay Inslee (D) for his signature.
“This bill is not an ideal solution, but it is a thoughtful step forward,” sponsor Sen. Manka Dhingra (D) said in a statement following the measure’s passage. “It achieves three important goals. First, it establishes a statewide approach to addressing drug possession. Second, it prioritizes and funds treatment for substance use disorder. And third, it provides us the time to come up with a public health approach to substance use disorder that relies on best practices and access to treatment that takes into account equity.”
Watch the Senate floor debate and final passage of the bill:
Dhingra initially introduced the bill with language that would have removed all penalties for possession of small, “personal use” amounts of controlled substances, with people instead diverted to an evaluation and possible treatment for substance use disorder. But the Senate stripped out that provision last week and replaced it with a gross misdemeanor charge, which carries up to a year in jail—a move that caused Dhingra to vote against her own bill as amended.
A House committee later reduced the penalty to a simple misdemeanor, which carries up to 90 days in jail and a maximum $1,000 fine.
While the simple misdemeanor remains in the final legislation, most people aren’t expected to see criminal charges for their first few offenses. As passed, SB 5476 requires law enforcement to recommend people to a behavioral health assessment for their first two violations, with the possibility for further diversion after that.
To fund the expanded outreach, treatment and recovery services, an amendment passed on the House floor sets aside nearly $100 million in funding, including earmarking $45 million to establish a “recovery navigator” program, which would provide community-based treatment and long-term case management for people with substance abuse disorder. Among other appropriations, it would also use $12.5 million to establish an outreach program for unhoused people, $5 million to expand efforts to provide opioid use disorder medication in jails and $4.5 million to expand the state’s therapeutic court model to local courts, which have jurisdiction over most misdemeanor cases.
"Our work is not done, but this bill invests in what we know we need, an approach to substance use disorder that treats all our neighbors with the dignity and compassion they deserve." – Rep. Kirsten Harris-Talley on the House striker to SB 5476 #waleg pic.twitter.com/YI2d2YTqv9
— WA House Democrats (@WAHouseDems) April 24, 2021
Another amendment adopted on the House floor came from Rep. Lauren Davis (D), who earlier this year introduced a separate bill, HB 1499, to decriminalize drug possession and expand treatment. Her change specifies the composition of the state’s substance use recovery advisory committee—which would include a elected officials, substance use disorder experts, treatment and recovery providers, law enforcement, an antiracism expert, a tribal representative and people living with substance use disorders—and requires that the group submit a preliminary report by the end of the year.
A House amendment from Rep. Roger Goodman (D) made a number of changes. One moved the new system’s point of diversion farther upstream, requiring that law enforcement—not prosecutors—refer people to treatment. That, he said, will prevent most people caught with drugs from being booked into jails or charged.
A more notable change in Goodman’s amendment modified the bill’s expiration provisions. An earlier version of the bill would have automatically replaced the misdemeanor penalty in 2023 with a Class 2 civil infraction, which carries a $125 fine and no possibility of jail time. Goodman’s amendment specified that instead the misdemeanor penalty would simply dissolve.
Some drug reform advocates initially read the proposal as a step to further criminalize drug possession. Treatment First WA, a coalition of groups that support decriminalization, sent an action alert to its followers urging opposition to the amendment, which it said “would return Washington to exactly the same failed and racist War on Drugs policies in place today.”
The ACLU of Washington posted a similar action alert against the amendment.
We can’t go back to the War on Drugs.
Tell your legislator to pass a version of ESB 5476 that stops treating people like criminals for drug use and substance use disorder.https://t.co/o7fxwPp263
— ACLU of Washington (@ACLU_WA) April 24, 2021
Goodman told Marijuana Moment in an interview Saturday night that he felt those criticisms were mistaken. The law would not revert to criminal penalties, he stressed, but to what it is today—with no law against drug possession in place.
“It does not sunset to criminalization,” Goodman said. “That’s absolutely incorrect.”
Watch the House floor debate on and passage of SB 5476, around 6:00 into the video below:
Goodman, a longtime drug reformer, believes that expiring the prohibition on drug possession entirely will encourage his colleagues to revisit the issue and craft a more durable policy. He’s betting that after reforms in SB 5476 take place, and as the legislature begins to hear back from the new advisory committee, skeptics of reform will be more willing to accept a more treatment-focused approach.
“The conversation on the failure of the drug war only keeps going the same direction. We’re almost at the tipping point now where we are at a completely new paradigm,” he said, noting that he’s heard support for reform from both Republicans and police, groups who often oppose easing criminal penalties. “Two years from now, that conversation will mature further and be even more progressive. The voters and the legislators and the public will be moving that direction. We have to go slow and steady, unfortunately.”
Goodman acknowledged that there’s some risk to his proposal. “The legitimate concern is that in 2023, the legislature won’t act, or the legislature’s makeup will be different and the will to act won’t be there,” he said. “I think it’s not likely that the legislature will fail to act.”
But if the House had sent the bill back to the Senate with the misdemeanor set to expire into a civil infraction, he added, senators would’ve rejected it.
He described the final version of SB 5476 as “the best we could do in the raw politics and vote counting, and I think it’s a step in the right direction.”
Goodman told Marijuana Moment last week that with the state legislative session set to end Sunday, there would be no time for the Senate to do anything but either concur with or reject the House version of the bill, “so we are having to confer closely with the Senate to see what they are willing to pass.”
If SB 5476 were to fail, the state would continue on without a drug possession law on the books following the court ruling—but also without the nearly $100 million in additional funding for treatment or any tools to compel people to seek help. While votes fell largely along party lines on Saturday, both Democrats and Republicans in recent weeks have said it was essential the legislature pass a law to fill the hole left by the Supreme Court decision.
On the Senate floor, however, GOP members balked at the House’s amendment to downgrade the possession penalty from a gross misdemeanor to a simple misdemeanor, saying that sometimes it’s necessary to use the threat of incarceration to force people to get treatment they might not otherwise seek.
“You have to give them the stick and not the carrot here, because they’re not going to take that option, they don’t have the capability of making that decision,” said Sen. Lynda Wilson (R).
On the House side, GOP representatives introduced a number of amendments that would have increased penalties, including a pair of amendments brought during floor debate that would have increased returned the simple misdemeanor to a gross misdemeanor, as the Senate had passed it earlier in the week, but House Democrats rejected those changes.
While some Democrats lamented the return to criminal penalties under the bill, they generally supported its passage. They pointed out that decades of criminalizing drug use has failed to meaningfully reduce either use or the negative consequences of substance abuse disorder. It’s also led to disproportionate arrests, prosecutions and incarceration of Black, brown and Indigenous people
“Decades of putting people in jail for drug offenses has been a failure,” Rep. Jamila Taylor (D) said in a statement. “The system today hurts those it should be helping, and it is time for change. Change that puts people in treatment instead of prison.”
Rep. Davis, who repeatedly stressed the need for more investment in outreach and recovery services during hearings on her decriminalization bill, said the new bill represents “the first time in state history that we have ever made substantial improvements in the outreach services that connect people to care on the front end and recovery support services on the back end that help them achieve long-term recovery.”
Because it contains an emergency clause, the bill would take effect immediately upon being signed by Gov. Inslee. He’s politically aligned with many of the bill’s supporters but has not yet indicated publicly whether he intends to sign it. A spokesperson for Inslee told Marijuana Moment on Sunday that the governor’s office had “not received it and staff have not had time to review it for final recommendation.”
State Attorney General Bob Ferguson (D), meanwhile, recently jumped into the fray, urging lawmakers on Thursday “to reject criminal penalties for non-commercial drug possession.”
— Washington State Attorney General (@AGOWA) April 20, 2021
Washington voters, for their part, are generally supportive of decriminalization, according to a statewide poll commissioned by reform advocates and released earlier this month. Fifty-nine percent of those surveyed said lawmakers should use the state Supreme Court decision to “reconsider and replace past drug possession laws with more effective addiction and treatment alternatives,” while only 35 percent favored making a technical change to return to the past system.
Nearly three in four voters (73 percent) said the state’s approach to problematic drug use has been a failure. Just nine percent called it a success.
Some reform advocates have floated the possibility of decriminalizing drugs in Washington through a ballot initiative similar to the one passed in Oregon. HB 1499, the decriminalization measure introduced earlier this session, was itself an offshoot of an effort by Treatment First Washington to put an initiative on last year’s ballot. That campaign, however, was scuttled after the COVID-19 pandemic interrupted signature-gathering.
Outside the Pacific Northwest, lawmakers in both Maine and Vermont have recently unveiled legislation to decriminalize small amounts of controlled substances. Last month, a Rhode Island Senate committee held a hearing on legislation that would end criminal penalties for possessing small amounts of drugs and replace them with a $100 fine. And in New Jersey, Gov. Phil Murphy (D) recently said he’s “open-minded” on decriminalizing all drugs.
In California, a bill that would legalize possession of a wide range of psychedelics passed its second Senate committee earlier this month.
Illinois Will ‘Blow Past’ $1 Billion In Legal Marijuana Sales In 2021, Chamber Of Commerce President Says
“Are we going to get to a billion dollars? I think we’re going to blow past the billion dollars based on the experience in smaller states,” the Chamber leader said.
By Elyse Kelly, The Center Square
Illinois’s cannabis industry is growing up fast, with adult-use recreational cannabis sales expected to hit $1 billion by year-end.
In March alone, Illinoisans spent $110 million on recreational marijuana.
Todd Maisch, president and CEO of the Illinois Chamber of Commerce, said one factor contributing to Illinois’ explosive growth is that most neighboring states haven’t legalized marijuana yet.
“What we saw early on in states like Washington and Colorado is they did have demand come in from surrounding states, which frankly benefits our industry and benefits the taxes collected,” Maisch said.
Cannabis sales have already surpassed alcohol’s tax revenues for the state, and Maisch said he thinks $1 billion estimates are conservative.
“Are we going to get to a billion dollars? I think we’re going to blow past the billion dollars based on the experience in smaller states,” Maisch said.
There are only a couple of things that could stop Illinois’ explosive cannabis market growth, Maisch said. He said that policymakers could ruin things by pushing taxes too high as evidenced by the tobacco market.
“As taxes have gone up and up and up, they’ve pushed people all the way into the black market or they’ve created this grey market in which people are ostensibly paying some of the taxes, but they’re still getting sources of tobacco products that avoid much of the tax,” Maisch said.
The other thing that could head off continued growth is other states opening up recreational-use markets.
“So if you start to see surrounding states go to recreational, that’s definitely going to flatten the curve because we’re not going to be pulling in demand from other states,” Maisch said.
Maisch points out some concerns that accompany the explosion of Illinois’s recreational cannabis market including workforce preparedness.
“All of those individuals who are deciding to go ahead and consume this product are really taking themselves out of a lot of job opportunities that they would otherwise be qualified, so there’s a real upside and a downside,” Maisch said.
While it’s easy to track the revenues this industry brings into state coffers, he points out, it will be harder to track the lack of productivity and qualified individuals to operate heavy machinery and other jobs that require employees to pass a drug test.
DEA Finally Ready To End Federal Marijuana Research Monopoly, Agency Notifies Grower Applicants
The Drug Enforcement Administration (DEA) on Friday notified several companies that it is moving toward approving their applications to become federally authorized marijuana manufacturers for research purposes.
This is a significant development—and one of the first cannabis-related moves to come out of the Biden administration. There is currently a monopoly on federal cannabis cultivation, with the University of Mississippi having operated the only approved facility for the past half-century.
It was almost five years ago that DEA under President Barack Obama first announced that it was accepting applications for additional manufacturers. No approvals were made during the Trump administration. And the delay in getting acceptances has led to frustration—and in some cases, lawsuits—among applicants.
But on Friday, organizations including the Biopharmaceutical Research Company (BRC), Scottsdale Research Institute (SRI) and Groff NA Hemplex LLC were notified by the agency that their requests were conditionally accepted.
“DEA is nearing the end of its review of certain marijuana grower applications, thereby allowing it to soon register additional entities authorized to produce marijuana for research purposes,” DEA said. “Pending final approval, DEA has determined, based on currently available information, that a number of manufacturers’ applications to cultivate marijuana for research needs in the United States appears to be consistent with applicable legal standards and relevant laws. DEA has, therefore, provided a Memorandum of Agreement (MOA) to these manufacturers as the next step in the approval process.”
The Wall Street Journal first reported on the move, and it’s unclear just how many organizations have received a DEA communication so far.
Matt Zorn, who has represented SRI in a suit against DEA over the processing delays, told Marijuana Moment that the agency explained that it is “moving forward” with the facility’s application and that it appears to be “consistent with public interest” to give the institute the ability to grow marijuana for study purposes.
SRI’s Dr. Sue Sisley is in a process of completing a memorandum of agreement that DEA requested “so that it can be executed and official,” according to a press release.
BRC CEO George Hodgin said in another press release that after being finalized, “this federal license will forever change the trajectory of our business and the medicinal cannabis industry.”
“The DEA’s leadership will set off a nationwide wave of innovative cannabis-derived treatments, unlock valuable intellectual property and create high quality American jobs,” he said. “The BRC team is already familiar with DEA compliance procedures based on our extensive history of controlled substances activity, and our world class staff is ready to hit the ground running on this new business arm that the DEA has authorized.”
DEA said it has presented applicants that appear to meet legal requirements “with an MOA outlining the means by which the applicant and DEA will work together to facilitate the production, storage, packaging, and distribution of marijuana under the new regulations as well as other applicable legal standards and relevant laws.”
“To the extent these MOAs are finalized, DEA anticipates issuing DEA registrations to these manufacturers,” the agency said. “Each applicant will then be authorized to cultivate marijuana—up to its allotted quota—in support of the more than 575 DEA-licensed researchers across the nation.”
DEA said it “will continue to prioritize efforts to evaluate the remaining applications for registration and expects additional approvals in the future” and will publicly post information about approvals as they are finalized.
Following a 2019 suit against DEA by SRI, a court mandated that the agency take steps to process the cultivation license applications, and that legal challenge was dropped after DEA provided a status update.
That suit argued that the marijuana grown at the University of Mississippi is of poor quality, does not reflect the diversity of products available on the commercial market and is therefore inadequate for clinical studies.
That’s also a point that several policymakers have made, and it’s bolstered by research demonstrating that the federal government’s cannabis is genetically closer to hemp than marijuana that consumers can obtain in state-legal markets.
Last year, DEA finally unveiled a revised rule change proposal that it said was necessary to move forward with licensing approvals due to the high volume of applicants and to address potential complications related to international treaties to which the U.S. is a party.
SRI filed another suit against DEA in March, claiming that the agency used a “secret” document to justify its delay of approving manufacturer applications. And that was born out when the Justice Department Office of Legal Counsel document was released last year as part of a settlement in the case, revealing, among other things, that the agency feels that its current licensing structure for cannabis cultivation has been in violation of international treaties for decades.
Photo by Aphiwat chuangchoem.
Mississippi Supreme Court Overturns Medical Marijuana Legalization Ballot That Voters Approved
A voter-approved initiative to legalize medical marijuana in Mississippi has been overturned by the state Supreme Court.
On Friday, the court ruled in favor of a Mississippi mayor who filed a legal challenge against the 2020 measure, nullifying its certification by the Secretary of State. The lawsuit was unrelated to the merits of the reform proposal itself, but plaintiffs argued that the constitutional amendment violated procedural rules for placing measures on the ballot.
While the court acknowledged that a “strong, if not overwhelming, majority of voters of Mississippi approved Initiative 65” to legalize medical cannabis in the state, Madison Mayor Mary Hawkins Butler’s (R) petition was valid for statutory reasons.
Madison’s challenge cites a state law stipulating that “signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for placement upon the ballot.” But that policy went into effect when Mississippi had five congressional districts, and that’s since been reduced to four, making it mathematically impossible to adhere to.
The secretary of state and other officials pushed back against the lawsuit and argued that a plain reading of the state Constitution makes it clear that the intention of the district-based requirement was to ensure that signatures were collected in a geographically dispersed manner—and the result of the campaign met that standard.
But in the court’s 6-3 ruling released on Friday, the justices said that their hands were tied. The legislature or administration might be able to fix the procedural ballot issue, but it had to follow the letter of the law.
“We find ourselves presented with the question squarely before us and nowhere to turn but to its answer,” the decision states. “Remaining mindful of both the November 3, 2020 election results and the clear language in section 273 seeking to preserve the right of the people to enact changes to their Constitution, we nonetheless must hold that the text of section 273 fails to account for the possibility that has become reality in Mississippi.”
In sum, a Census-driven change in the number of congressional districts in Mississippi “did, indeed, break section 273 so that, absent amendment, it no longer functions,” meaning there’s no legal way to pass a constitutional ballot initiative in the state.
“Whether with intent, by oversight, or for some other reason, the drafters of section 273(3) wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress. To work in today’s reality, it will need amending—something that lies beyond the power of the Supreme Court.”
“We grant the petition, reverse the Secretary of State’s certification of Initiative 65, and hold that any subsequent proceedings on it are void,” the court ruled.
One justice who dissented said that the district-based requirement is arbitrary as it concerns Mississippi elections. While the federal government defines the state as having four congressional districts, the state Constitution “lays out the five districts,” and “there have been zero changes to the five districts” as far as the state’s laws are concerned.
In any case, this marks a major defeat for cannabis reform activists in the state who collected more than 214,000 signatures for their initiative. Sixty-eight percent of voters approved a general ballot question on whether to allow medical cannabis, and 74 percent signed off on advocates’ specific measure in a separate question.
“The Mississippi Supreme Court just overturned the will of the people of Mississippi,” Ken Newburger, executive director for the Mississippi Medical Marijuana Association, said in a press release. “Patients will now continue the suffering that so many Mississippians voted to end. The Court ignored existing case law and prior decisions. Their reasoning ignores the intent of the constitution and takes away people’s constitutional right.”
“It’s a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn’t matter,” he said.
Today the MS Supreme Court ruled against the state’s ballot initiative process, killing the medical marijuana program 74% of Mississippians voted to pass. This is devastating for not only patients, but voters as a whole. Below is our statement: https://t.co/jrDoJM3K16 pic.twitter.com/AR3xuId3xR
— Mississippi Medical Marijuana Association (@medmarijuanams) May 14, 2021
Under the voter-approved initiative, patients with debilitating medical issues would have been allowed to legally obtain marijuana after getting a doctor’s recommendation. The proposal included 22 qualifying conditions such as cancer, chronic pain and post-traumatic stress disorder, and patients would have been able to possess up to 2.5 ounces of marijuana per 14-day period.
There was an attempt in the legislature to pass a bill to legalize medical marijuana in the event that the court overruled the voter-approved initiative, but it failed to be enacted by the session’s end.
The Mississippi State Department of Health told WJTV that it will cease work on developing medical cannabis regulations in light of the court ruling.
“However, the agency has certainly learned a lot in the process of putting together a successful medical marijuana program, and we stand ready to help the legislature if it creates a statutory program,” Liz Sharlot, director of the Office of Communications for the department, said.
This is the latest state Supreme Court setback to affect cannabis reform efforts.
Last month, the Florida Supreme Court dealt a critical blow to marijuana activists working to legalize marijuana in the state—killing an initiative that hundreds of thousands of voters have already signed and forcing them to start all over again if they want to make the 2022 ballot.
While a Nebraska campaign collected enough signatures to qualify a reform initiative in 2020, the state Supreme Court shut it down following a legal challenge. It determined that the measure violated the state’s single-subject rule, much to the disappointment of advocates.
In South Dakota, the fate of an adult-use legalization initiative that voters approved last November is also in the hands of the state’s Supreme Court, where a sheriff is challenging its constitutionality based on a single subject rule as well.
Opponents to a Montana marijuana legalization measure that was approved by voters have also filed lawsuits contesting the voter-approved initiative for procedural reasons, arguing that its allocation of revenue violates the state Constitution. While the state Supreme Court declined to hear the case last year, it did not rule on the merits and left the door open to pursuing the case in district and appeals court, which plaintiffs then pursued.
Read the Mississippi Supreme Court ruling on the medical cannabis initiative below: