Oregon made history when voters approved a ballot initiative to decriminalize possession of all drugs and expand access to treatment in November. Now, a number of other U.S. states could follow suit, with a New York lawmaker introducing a similar decriminalization bill last week and proposed legislation waiting in the wings in Washington State and California.
A newly proposed resolution in Virginia, meanwhile, would have state officials begin studying decriminalization models, such Oregon’s, that move away from a crime-control approach to drug use and instead emphasize public health.
“Such reforms have resulted in significant financial savings to such states,” the Virginia resolution says, “in both the adjudication of criminal cases and the reduced burden on jails and prisons.”
Many drug policy reform advocates and observers still see state legislatures as a less likely path to all-drug decriminalization than citizen initiatives, and indeed some influential backers are already setting their sights on 2022 ballots. But the efforts emerging in statehouses so far this year are an early indication that decriminalization is finding more traction with state lawmakers after an election in which voters approved every major state-level marijuana and drug reform measure put before them.
Here’s a rundown of some of the decriminalization proposals being considered as this year’s state legislative sessions get underway:
A bill introduced last week by Sen. Gustavo Rivera (D), S1284, would remove criminal penalties for possessing small amounts of any controlled substance and instead levy fines of $50.
“The purpose of this legislation is to save lives and to help transform New York’s approach to drug use from one based on criminalization and stigma to one based on science and compassion,” the bill says, “by eliminating criminal and civil penalties for the personal possession of controlled substances.”
Low-level possession would be changed from a class A misdemeanor to a violation punishable by a $50 fine. Someone caught with a small amount of drugs could also participate in what the bill describes as “a needs screening to identify health and other service needs.” If they completed the screening within 45 days, the fine would be waived.
The screening’s aim would be to “identify health and other service needs,” the bill says, “including but not limited to services that may address any problematic substance use and mental health conditions, lack of employment, housing, or food, and any need for civil legal services.”
As with Oregon’s decriminalization law, the goal of the New York bill is to deprioritize policing of personal drug use while also facilitating better access to treatment for individuals with substance use disorders.
“Treating substance use as a crime by arresting and incarcerating people for personal use offenses,” it says, “causes significant harm to individuals who use drugs by disrupting and further destablilzing their lives.”
Marijuana Moment is already tracking more than 200 cannabis and drug policy reform 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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“For well over a century, even as the scientific understanding of substance use disorders as a medical condition has increased, New York and other states have continued to treat drug use as a moral failing and as a crime, thereby stigmatizing and incarcerating millions of people for having a disease,” Rivera, who chairs the Senate Health Committee, wrote in a sponsorship memo. “Such treatment stands in stark contrast to how society and government treat individuals suffering from other diseases, such as cancer or an anxiety disorder. While individuals with these other illnesses are usually seen as worthy of compassion, support, and medical care, those with an SUD are disparaged, criminalized, and treated as undeserving of assistance and compassion.”
Very honored to continue my role as Chair of the @NYSenate Health Committee. I will serve as a member of the committees on Finance, Mental Health, Alcoholism & Substance Abuse, Housing, Crime & Corrections, and Higher Education.
— Gustavo Rivera (@NYSenatorRivera) January 11, 2021
The bill would also establish a state drug decriminalization task force to “develop recommendations for reforming state laws, regulations and practices so that they align with the stated goal of treating substance use disorder as a disease, rather than a criminal behavior.”
Among the task force’s jobs would be to identify how much of a controlled substance is consistent with non-prescription use, which could be used to adjust possession limits. The body would also use data about the types of services people with drug use disorders “desire but cannot access,” as well as “barriers to existing services.”
The task force would consist of various political appointees, health and drug use experts, a prosecutor, a public defender and an array of other state officials or their designees. “Further,” the bill says, “appointees shall include people with prior drug convictions, individuals who have participated in a drug court program, individuals who have been formerly incarcerated, individuals impacted by the child welfare system, and representatives of organizations serving communities impacted by past federal and state drug policies.”
Additionally, S1284 would allow for the expungement of certain past drug convictions and remove certain drug accessories—specifically those “used for the purpose of injecting, ingesting, inhaling or otherwise introducing drugs into the human body”—from the state’s prohibited category of drug paraphernalia. Equipment used to produce or process controlled substances would still be prohibited.
Filed last Friday, the measure has been assigned to the Senate Codes Committee.
Advocates in Washington were originally hoping to put a decriminalization initiative on the state’s 2020 ballot, but the campaign’s signature-gathering effort was put on hold due to complications caused by the COVID-19 pandemic. Now the group behind the effort, Treatment First Washington, is hoping to put the proposal in front of lawmakers this legislative session.
In a public Zoom meeting last Thursday about the effort, affiliates of the group said they’ve been in talks with six specific House lawmakers—including Reps. Kirsten Harris-Talley, Lauren Davis, Joe Nguyen, Nicole Macri, Tarra Simmons and Frank Chopp, all Democrats—trying to finalize language of the bill and secure a sponsor.
“I was hoping by today that we would have sort of updated bill language and a specific bill number to share with this group, but it’s not quite ready,” Mark Cooke, an ACLU of Washington attorney and consultant for Treatment First Washington, said on the call. “We should have the bill language very soon.”
Cooke referred follow-up questions to Treatment First’s media contact, Christina Blocker, who did not answer Marijuana Moment’s questions about the status of the bill but indicated there would be a press event about the effort later this week.
Judging from the group’s past description of its proposal, the measure would largely resemble Oregon’s new decriminalization law. It would decriminalize possession of all drugs, replacing criminal penalties with a relatively small civil fine and giving people the option to participate in treatment instead of paying that fine. Like Oregon’s measure, the Washington proposal would also earmark tax revenue from the state’s legal cannabis system to fund the expansion of drug treatment services.
Marijuana in Washington is currently taxed at 37 percent, the highest state-level cannabis tax rate in the country. The tax brought the state nearly $470 million in fiscal year 2020, according to state regulators.
One difference from Oregon’s measure, the group said late last year, is that Washington’s decriminalization law would create a body, similar to the one envisioned in the New York bill, that would use community input and expert testimony to establish details such as possession limits. Oregon’s initiative used existing state law to set those thresholds.
The Washington proposal, however, could change considerably as advocates work to win broader support from lawmakers. The provision to pay for expanded treatment services with cannabis tax revenue, for example, may not fly with a legislature that’s come to rely on hundreds of millions of dollars in cannabis money to fund other government operations.
So far California lawmakers haven’t introduced a measure to decriminalize all drugs, although that’s not entirely out of the question. Given the state’s size, influence and history of leadership in the drug reform movement, advocacy groups are still exploring ways to put all-drug decriminalization on the legislative calendar this session.
“As far as California, that one has been a priority of ours,” Matt Sutton, director of media relations at Drug Policy Alliance (DPA), told Marijuana Moment this week, “and we have been working with the legislature to introduce something and will likely do so this session.”
Potentially complicating the effort to decriminalize all drugs in California—at least for the moment—is a forthcoming narrower decriminalization proposal from state Sen. Scott Wiener (D), who has said he plans to introduce legislation that would decriminalize only psychedelic drugs, such as psilocybin mushrooms, ibogaine and DMT.
Legislative language for the proposals isn’t yet available, but Sutton at DPA said the group is in contact with Wiener about how to coordinate the two prospective bills.
Virginia lawmakers are also working to get the state to begin considering drug decriminalization, although they’re setting out at a slower pace than the other states. A joint resolution introduced last week by Del. Sally Hudson (D), HJ 530, would task the state Crime Commission with studying alternative approaches to drug enforcement, “including decriminalization of the possession of substances.”
Language of the proposed resolution argues that “the War on Drugs has entailed overwhelming financial and societal costs, and the policy behind it does not reflect a modern understanding of substance use disorder as a disease or substance abuse as a public health problem.”
“Traditional legal interventions, including arrest and incarceration, have proven ineffective in treating addiction and promoting public health,” it continues, “requiring new approaches that emphasize treatment and rehabilitation over arrest and punishment.”
Under the proposal, the Virginia State Crime Commission would need to complete its assessment by November 30, 2021, and submit its findings at the start of the 2022 legislative session.
Just last year, Virginia lawmakers decriminalized marijuana, making possession of up to one ounce of cannabis punishable by a $25 fine with no threat of jail time and no criminal record—a law that took effect in July. Now, with the support of Gov. Ralph Northam (D), the legislature is expected to seriously consider legalizing marijuana in 2021.
Meanwhile, Oregon’s passage of Measure 110, last election’s major drug decriminalization measure, is already making an impact in the state. Last month the district attorney in Multnomah County, the state’s largest, announced that he would stop pursuing drug possession cases immediately, even though the law doesn’t officially take effect until February.
“The passage of Ballot Measure 110 sends a clear message of strong public support that drug use should be treated as a public health matter rather than a criminal justice matter,” District Attorney Mike Schmidt said in a press release.
Schmidt was the third Oregon DA to announce such a change, following prosecutors in Clackamas and Deschutes counties.
Under Oregon’s measure, simple drug possession will be treated as a civil infraction, punishable by a $100 fine and no jail time. The fine can be waived if an individual can demonstrate to a court that they’ve completed a substance misuse assessment.
Local Reform Efforts
More broadly in the U.S., proposals to decriminalize drugs—and especially plant-based psychedelic drugs, such as psilocybin mushrooms—have been gaining momentum in recent years. Both Denver and Oakland, CA, decriminalized certain forms of psychedelics in mid-2019. In 2020, Santa Cruz and Ann Arbor did the same. And in November, voters in Washington, D.C., passed a psychedelics decriminalization initiative with more than 76 percent support.
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.