Drug reform policy took center stage at the 2020 Democratic presidential debate in New Hampshire on Friday, with candidates weighing in on issues such as decriminalizing possession of controlled substances and how to address substance misuse.
At one point, former South Bend, Indiana Mayor Pete Buttigieg was pressed to defend racial disparities in his city’s marijuana enforcement rates.
In a separate exchange, Buttigeig was asked about his proposal to decriminalize possession of all drugs—a plank included in both his mental health and racial justice plans. But the candidate contested the premise of the question, saying that he simply wants to end incarceration for possessing illegal substances, a semantic distinction that he’s made before.
“No, what I’ve called for is that incarceration should no longer be the response to drug possession. What I’m calling for is that we end the use of incarceration as a response,” he said. “This does not mean that it will be lawful to produce or distribute those kinds of harmful drugs, but also, as we know from the opioid crisis, some of this has been driven by companies that were acting irresponsibly with substances that were lawful.”
— ABC News (@ABC) February 8, 2020
The remarks are a continuation of Buttigieg’s resistance to embracing terminology commonly used by drug reform advocates. In December, the candidate stressed that his proposal to end the threat of incarceration for drug offenses is not a “blanket decriminalization of a lot of other harmful substances.”
Major drug policy reform groups have long characterized removing the threat of incarceration for drug offenses—particularly first offenses—as decriminalization. However, others contend that the imposition of any criminal penalties, whether or not they come with time in jail, does not reflect a true decriminalization policy.
“These kinds of addictions are a medical issue, not a moral failure on the part of somebody battling that addiction,” the former mayor said, adding that the country should invest in harm reduction policies such as medication-assisted treatment to mitigate the risk of drug overdoses.
Later, Buttigieg was center stage for a discussion about the way marijuana criminalization is enforced across racial lines.
The candidate was asked about the rate of cannabis possession arrests during his time as mayor, with the moderator saying that racial disparities increased after he took office.
“On my watch, drug arrests in South Bend were lower than the national average—and specifically to marijuana, lower than Indiana,” he countered, saying that his administration made a decision to target drug enforcement resources in cases connected to gang murders.
The former mayor added that there’s “no question” that systemic racial bias has been a factor in cannabis arrests.
Buttigieg revisited a point he made during campaign stops in Iowa prior to this week’s caucus: while it has become a largely mainstream idea that the country needs to take a more health-focused approach to substance misuse amid the opioid crisis, many voices were missing decades ago when the government increased criminal penalties for drug offenses that disproportionately impacted communities of color.
“That is one of the reasons why I am calling for us as a country to take up those reforms that end incarceration as a response to possession,” he said.
The candidate emphasized that legalization of cannabis would be coupled with policies that retroactively removed criminal records for those previously convicted.
.@LinseyDavis on racial disparity in marijuana arrests in South Bend: You called it "evidence of systemic racism” … weren’t you the head of the system?
— ABC News Politics (@ABCPolitics) February 8, 2020
Sen. Elizabeth Warren (D-MA) was prompted by the moderators to weigh on whether Buttigieg offered a sufficient explanation for his city’s cannabis enforcement record.
“No,” she said. “You have to own up to the facts. And it’s important to own up to the facts about how race has totally permeated our criminal justice system.”
Buttigieg attempts to explain the increase in black arrests in South Bend under his leadership for marijuana possession.
ABC's Linsey Davis: "Sen. Warren, is that a substantial answer from Mayor Buttigieg?"
Warren: "No." pic.twitter.com/iesdxQTXK3
— Axios (@axios) February 8, 2020
“We need to rework our criminal justice system from the front end on what we make illegal all the way through the system and how we help people come back into the community,” she said.
Earlier in the debate, entrepreneur Andrew Yang was asked about his support for decriminalizing opioids. Pressed about the potential cost of his campaign proposal that people who overdose “should be sent to mandatory treatment centers for three days to convince them to seek long-term treatment,” the candidate said pharmaceutical companies should foot the bill.
“As president, we will take back those profits [from drug companies that market opioids] and put them to work right here in New Hampshire so that if you are seeking treatment, you have resources to be able to pursue it,” he said. “This is not a money problem fundamentally, this is a human problem. But money cannot be the obstacle.”
Yang also voiced support for opening supervised consumption sites for illegal drugs, adding that “if you are seeking treatment, you have to know you are not going to be sent to jail.”
Sen. Bernie Sanders (I-VT), for his part, said he wants to “end the war on drugs, which has disproportionately impacted African Americans, Latinos and Native Americans.”
Decrying a “racist system, from top to bottom,” the senator called for an end to private prisons.
We’re going to end the War on Drugs.
We’re going to end private prisons and detention centers.
We’re going to end cash bail. #DemDebate
— Bernie Sanders (@BernieSanders) February 8, 2020
Former Vice President Joe Biden, who as a senator played a leading role in enacting several punitive drug laws, made a point during the debate of saying that he now wants “no one going to jail for a drug offense.”
“They go mandatory treatment,” he said. “No prison.”
Biden also pointed to his early work to support and fund drug courts. “I set them up,” he said. “I wrote it into law.”
As the candidates were on stage, the Republican National Committee targeted Biden’s drug war record in a tweet.
Joe Biden would be disastrous for the US.
❌Under VP Biden—America LOST 200K manufacturing jobs
✔️Under Pres. Trump—America ADDED 514K manufacturing jobs
❌Biden’s "War on Drugs" worsened the opioid epidemic
✔️For the 1st time in 29 yrs—the # of fatal overdoses is down
— GOP (@GOP) February 8, 2020
Sen. Amy Klobuchar (D-MN) faced a question about her record as a prosecutor and whether she regrets sending people to jail for drugs.
The senator replied by pointing to her record running what she called “one of the most successful drug courts in the country.”
Photo courtesy of YouTube/ABC News.
Scientists And Veterans File Lawsuit Challenging DEA’s Marijuana Rescheduling Denials
The Drug Enforcement Administration (DEA) is facing yet another marijuana-related lawsuit—and this time, researchers and veterans are challenging the agency’s denial of prior cannabis rescheduling requests.
The Scottsdale Research Institute (SRI) filed suit last week in the U.S. Ninth Circuit Court of Appeals, asking for a review of DEA’s scheduling determinations in 2020, 2016 and 1992. In all cases, the agency denied the petitions, citing statutory obligations to maintain the status of cannabis as a Schedule I drug under the Controlled Substances Act.
Petitioners are taking exception to the basis of those denials, raising questions about DEA’s reliance on scheduling standards that they feel are arbitrary and misinterpret federal law. In particular, they are seeking reviews of the agency’s claims that marijuana must be strictly scheduled because, the government has claimed, it has no currently accepted medical value and has not been proven to be safe.
They also argue that another statutory policy DEA says necessitates marijuana being strictly controlled is unconstitutional.
“The reason we’re filing this is because, ultimately, the research has been impeded,” Matt Zorn, an attorney representing SRI in the case, told Marijuana Moment. “We’re trying to get the administration to remove those roadblocks.”
In terms of valid therapeutic value, the agency has said there are five criteria that a substance must meet, including the reproducibility of the drug, the existence of controlled studies establishing safety and efficacy and “whether the drug is not accepted by qualified experts.”
Lawyers representing SRI argued in a filing that the test “has no basis in the statute, is contrary to the statutory text, structure, history, and purpose, departs from the original understanding of the statute and rests on flawed and outdated case law.”
Further, they said DEA’s determination that there’s a “lack of accepted safety for use of marijuana under medical supervision” is wrong because it “misconstrues the statute and is arbitrary, capricious, and contrary to law because the agency has improperly imported a clinical efficacy requirement.”
In its past denials of rescheduling petitions, the agency has asserted that marijuana can only be placed in either Schedule I or II. But the attorneys said the statute justifying that determination is “an unconstitutional delegation of legislative authority” that “violates core separation of powers principles” by granting the attorney general authority to schedule drugs on his or her discretion based on an interpretation of international treaty obligations.
“[T]he statute outsources regulatory power to create domestic criminal law to international organizations and subordinates domestic law to treaty obligations, conventions, and protocols,” the suit states. “Then, it entrusts the Attorney General, a member of the executive branch, to execute non-self-executing international treaty obligations, providing him no intelligible principle, instructions, standards, or criteria whatsoever against which to measure what ‘he deems most appropriate.’ This is unconstitutional.”
Stephen Zyskiewicz, who filed the handwritten 2020 rescheduling petition that is central to the new suit’s claims, is not a party to the case. Instead, several military veterans, as well as SRI and its principal investigator Sue Sisley, are the plaintiffs.
“Marijuana’s schedule I status and DEA’s determinations hinder SRI’s clinical research—the very clinical research that DEA requires under its unlawful interpretation of 21 U.S.C. § 812(b)(1)(B) to consider removing marijuana from schedule I—in several key respects,” the lawsuit states. For example, the scheduling status has meant that “SRI has had to delay FDA-approved clinical trials to investigate the safety and efficacy of smoked marijuana in treating breakthrough pain in terminal cancer patients.”
This isn’t SRI’s first time taking the feds to court over their marijuana decisions. The institute, which is among several dozen applicants to become a federally authorized manufacturer of cannabis for research purposes, successfully forced DEA to issue an update on the status of their application processing and then got the Justice Department to hand over a “secret” memo that DEA allegedly used to justify a delay in deciding on those proposals.
“What has been animating all of these lawsuits is that we can’t get the research done,” Zorn said. “The ideal result is that we stop filing lawsuits and the administration decides it wants to support cannabis research. But until that happens, we’ll be in the courts.”
Meanwhile, a public comment period recently ended for proposed rules that DEA published as part of its attempt to expand the number of authorized cannabis manufacturers. Many advocates made the case that marijuana research should not be the purview of DEA at all and should instead be handled by a federal health agency.
DEA could also find itself being challenged over its marijuana scheduling decisions in the U.S. Supreme Court in a separate case. After an appeals court dismissed a lawsuit because the plaintiffs said they wouldn’t push for rescheduling through administrative channels, attorneys in the case said they will soon request that the nation’s highest court take it up.
Read the new lawsuit challenging DEA’s marijuana rescheduling denials below:
Photo by Aphiwat chuangchoem.
USDA Approves Hemp Plans For U.S. Virgin Islands And Four Indian Tribes
The U.S. Department of Agriculture (USDA) announced on Wednesday that it has approved hemp regulatory plans from a U.S. territory and four additional Indian tribes.
The U.S. Virgin Islands is the first territory to have its proposal accepted. USDA also signed off on plans from the Cheyenne River Sioux Tribe, Chippewa Cree Tribe, Lac Courte Oreilles Band of Lake Superior Chippewa Indians and Red Lake Band of Chippewa Indians.
That brings the total number of approved plans across states, territories and tribes to 47.
USDA has been signing off on hemp plans on a rolling basis since the crop and its derivatives were federally legalized under the 2018 Farm Bill. Earlier this month, Massachusetts joined the list of states where proposed regulations for hemp have been approved.
The department said in a new notice that it “continues to receive and review hemp production plans from states and Indian tribes.”
While the agency released an interim final rule for a domestic hemp production program last year, industry stakeholders and lawmakers have expressed concerns about certain policies it views as excessively restrictive.
USDA announced in February that it will temporarily lift two provisions that the industry viewed as problematic. Those policies primarily concern testing and disposal requirements. The department declined to revise the THC limit, however, arguing that it’s a statutory matter that can’t be dealt with administratively.
Agriculture Secretary Sonny Perdue has said on several occasions that the Drug Enforcement Administration influenced certain rules, adding that the narcotics agency wasn’t pleased with the overall legalization of hemp.
Meanwhile, the Food and Drug Administration (FDA) is still in the process of developing regulations for CBD. It sent an update on its progress to Congress in March, explaining that the agency is actively exploring pathways to allow for the marketing of the cannabis compound as a dietary supplement and is developing enforcement discretion guidance.
An FDA public comment period was reopened indefinitely for individuals to submit feedback on CBD regulations.
Amid the coronavirus pandemic, hemp industry associations pushed for farmers to be able to access to certain COVID-19 relief loans—a request that Congress granted in the most recent round of coronavirus legislation.
However, USDA said last week that hemp farmers are specifically ineligible for its Coronavirus Food Assistance Program. While the department initially said it would not reevaluate the crop’s eligibility based on new evidence, it removed that language shortly after Marijuana Moment reported on the exclusion.
Hemp farmers approved to produce the crop do stand to benefit from other federal loan programs, however. The department recently released guidelines for processing loans for the industry.
Photo courtesy of Brendan Cleak.
Louisiana Senate And House Both Approve Significant Medical Marijuana Expansion
The Louisiana Senate approved a bill to significantly expand the state’s medical marijuana program on Wednesday, and a committee advanced separate legislation on banking access for cannabis businesses.
The expansion proposal, which the House of Representatives approved last week, would allow physicians to recommend medical cannabis to patients for any debilitating condition that they deem fit instead of from the limited list of maladies that’s used under current law.
The Senate Health and Welfare Committee advanced the proposal last week and now the full chamber has approved it in a 28-6 vote. Before the bill heads to the desk of Gov. John Bel Edwards (D) for signature or veto, the House will have to sign off on an amendment made by the Senate to require dispensaries to record medical marijuana purchases in the state prescription monitoring program database.
As originally drafted, the bill sponsored by Rep. Larry Bagley (R) would have simply added traumatic brain injuries and concussions to the list of conditions that qualify a patient for a marijuana recommendation. But it was amended in a House committee to add several other conditions as well as language stipulating that cannabis can be recommended for any condition that a physician “considers debilitating to an individual patient.”
Under current law there are only 14 conditions that qualify patients for marijuana.
“House Bill 819 is the new standard for medical marijuana programs. The bill allows any doctor who is licensed by and in good standing with the Louisiana Board of Medical Examiners to make medical marijuana recommendations for their patients,” Bagley told Marijuana Moment. “The bill also ends the Legislature’s task of picking medical winners and losers each session, and instead allows doctors to recommend medical marijuana for any condition that a physician, in his medical opinion, considers debilitating to an individual patient.”
Bagley also introduced a House-passed bill to provide for cannabis deliveries to patients, but he voluntarily withdrew it from Senate committee consideration last week and told Marijuana Moment it’s because he felt the medical marijuana expansion legislation would already allow cannabis products to be delivered to patients like other traditional pharmaceuticals.
The delivery bill would have required a government regulatory body to develop “procedures and regulations relative to delivery of dispensed marijuana to patients by designated employees or agents of the pharmacy.”
It’s not clear if regulators will agree with Bagley’s interpretation, as doctors are still prohibited from “prescribing” cannabis and marijuana products are not dispensed through traditional pharmacies. That said, they recently released a memo authorizing dispensaries to temporarily deliver cannabis to patients during the COVID-19 pandemic, so it’s possible officials will be amendable to extending that policy on a permanent basis.
State lawmakers also advanced several other pieces of cannabis reform legislation last week.
A bill introduced by Rep. Edmond Jordan (D) to protect banks and credit unions that service cannabis businesses from being penalized by state regulators cleared the full House in a 74-20 vote.
That measure was approved by Senate Committee on Commerce, Consumer Protection and International Affairs on Wednesday, setting it up for floor action in the chamber.
Also last week, the House Labor and Industrial Relations Committee unanimously approved a resolution to establish “a task force to study and make recommendations relative to the cannabis industry projected workforce demands.”
Text of the legislation states that “there is a need to study the workforce demands and the skills necessary to supply the cannabis industry with a capable and compete workforce, including physicians, nurse practitioners, nurses, and other healthcare practitioners.”
Legislators have until the end of the legislative session on June 1 to get any of the measures to the governor’s desk.