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.
GOP Senator Presses Treasury Secretary On Tax Credits For Marijuana Businesses
A Republican senator recently pressed the head of the Treasury Department on whether marijuana businesses qualify for a federal tax benefit.
During a Senate Finance Committee hearing on Wednesday, Treasury Secretary Steven Mnuchin was asked about the “opportunity zone” tax credit, which is meant to encourage investments in “distressed,” low-income communities through benefits such as deferrals on capital gains taxes.
Sen. James Lankford (R-OK), whose state’s voters approved a medical marijuana ballot measure in 2018, told Mnuchin that businesses that derive more than five percent of their profits from things like alcohol sales are ineligible for the tax credit, but there’s “not a definition dealing with cannabis businesses.”
“Are they within that five percent amount or are they not at all because there’s a federal prohibition on cannabis sales?” the senator asked.
“I’m going to have to get back to you on the specifics,” Mnuchin replied.
“That’d be helpful to get clarity because there are cannabis businesses across the country that, if they fall in opportunity zones, they’ll need clarification on that,” Lankford said. “When you and I have spoken about it before—it’s difficult to give a federal tax benefit to something that’s against federal law.”
Lankford, who opposes legalization and appeared in a TV ad against his state’s medical cannabis ballot measure, has raised this issue with the Treasury secretary during at least two prior hearings. When he questioned whether cannabis businesses qualify for the program last year, he clarified that he personally does not believe they should.
While Mnuchin’s department has yet to issue guidance on the issue, he said in response to the earlier questioning that his understanding is that “it is not the intent of the opportunity zones that if there is this conflict [between state and federal marijuana laws] that has not been cleared that, for now, we should not have those businesses in the opportunity zones.”
Mnuchin has also been vocal about the need for Congress to address the lack of financial resources available to state-legal marijuana businesses. Because so many of these companies are forced to operate on a largely cash-only basis, he said the Internal Revenue Service has had to build “cash rooms” to store their tax deposits.
“There is not a Treasury solution to this. There is not a regulator solution to this,” he said during one hearing. “If this is something that Congress wants to look at on a bipartisan basis, I’d encourage you to do this. This is something where there is a conflict between federal and state law that we and the regulators have no way of dealing with.”
Last week’s Finance Committee hearing was centered around President Trump’s Fiscal Year 2021 budget request, which separately includes a provision calling for the elimination of an appropriations rider that prohibits the Justice Department from using its fund to interfere in the implementation of medical cannabis laws as well as a continued block on Washington, D.C. spending its own local tax dollars to legalize marijuana sales.
Photo courtesy of C-SPAN.
American Bar Association Wants Protections For Marijuana Banking And Lawyers Working With Cannabis Clients
The American Bar Association (ABA) approved two marijuana-related resolutions during its midyear meeting on Monday.
The group’s House of Delegates voted in favor of proposals endorsing pending federal legislation to protect banks that service cannabis businesses and calling for a clarification of rules to ensure that lawyers will not be penalized for representing clients in cases concerning state-legal marijuana activity.
Under the banking resolution, ABA “urges Congress to enact legislation to clarify and ensure that it shall not constitute a federal crime for banking and financial institutions to provide services to businesses and individuals, including attorneys, who receive compensation from the sale of state-legalized cannabis or who provide services to cannabis-related legitimate business acting in accordance with state, territorial, and tribal laws.”
HOD Res 103D: Adopted. Urges enactment of laws to ensure that it shall not constitute a federal crime for banks and financial institutions to provide cannabis-related services. #ABAMidyear
— American Bar Association (@ABAesq) February 17, 2020
ABA added that “such legislation should clarify that the proceeds from a transaction involving activities of a legitimate cannabis-related business or service provider shall not be considered proceeds from an unlawful activity solely because the transaction involves proceeds from a legitimate cannabis-related business or service provider, or because the transaction involves proceeds from legitimate cannabis-related activities.”
A bill that would accomplish this goal was approved by the House of Representatives last year, but it’s currently stalled in the Senate, where it awaits action in the Banking Committee. That panel’s chair, Sen. Mike Crapo (R-ID) is under pressure from industry stakeholders to advance the legislation, but he’s also heard from anti-legalization lawmakers who’ve thanked him for delaying the bill.
“Passage of the [Secure and Fair Enforcement] Banking Act or similar legislation will provide security for lawyers and firms acting to advise companies in the industry against having their accounts closed or deposits seized,” a report attached to the ABA resolution states. “This will also foster the rule of law by ensuring that those working in the state-legalized legitimate cannabis industry can seek counsel and help prevent money laundering and other crimes associated with off-the-books cash transactions.”
“Currently, the threat of criminal prosecution prevents most depository institutions from banking clients, including lawyers, who are in the stream of commerce of state-legalized marijuana. This Resolution is necessary to clarify that such provision of legal and other services in compliance with state law should not constitute unlawful activity pursuant to federal law.”
The second marijuana-related resolution ABA adopted on Monday asks Congress to allow attorneys to serve clients in cannabis cases without facing federal punishment.
Text of the measure states that the association “urges Congress to enact legislation to clarify and explicitly ensure that it does not constitute a violation of federal law for lawyers, acting in accord with state, territorial, and tribal ethical rules on lawyers’ professional conduct, to provide legal advice and services to clients regarding matters involving marijuana-related activities that are in compliance with state, territorial, and tribal law.”
HOD Res 103B: Adopted as revised. Urges enactment of laws to ensure lawyers can provide legal advice and services for clients' legal marijuana-related activities. #ABAMidyear
— American Bar Association (@ABAesq) February 17, 2020
Such a change would provide needed clarity for lawyers as more states legalize cannabis for adult use. ABA’s own rules of conduct have been a source of conflict for attorneys, as it stipulates that they “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Federal law continues to regard marijuana as an illegal, strictly controlled substance.
An ABA report released last year made the case that there’s flexibility within that rule, however, as “it is unreasonable to prohibit a lawyer from providing advice and counsel to clients and to assist clients regarding activities permitted by relevant state or local law, including laws that allow the production, distribution, sale, and use of marijuana for medical or recreational purposes so long as the lawyer also advises the client that some such activities may violate existing federal law.”
A new report attached to the resolution states that “statutory guidance is needed that explicitly ensures that attorneys who adhere to their state ethics rules do not risk federal criminal prosecution simply for providing legal counsel to clients operating marijuana businesses in compliance with their state law.”
“This Resolution accomplishes this elegantly by harmonizing federal criminal liability with States’ ethical rules regarding the provision of advice and legal services relating to marijuana business. If a state has legalized some form of marijuana activity and explicitly permitted lawyers to provide advice and legal services relating to such state-authorized marijuana activity, such provision of advice and legal services shall not be unlawful under the Controlled Substances Act or any other federal law.”
Last year, ABA adopted another cannabis resolution—arguing that states should be allowed to set their own marijuana policies.
Border Patrol Union Head Admits Legalizing Marijuana Forces Cartels Out Of The Market
The head of the labor union that represents U.S. Border Patrol agents acknowledged on Friday that states that legalize marijuana are disrupting cartel activity.
While National Border Patrol Council President Brandon Judd was attempting to downplay the impact of legalization, he seemed to inadvertently make a case for the regulation all illicit drugs by arguing that cartels move away from smuggling cannabis and on to other substances when states legalize.
Judd made the remarks during an appearance on C-SPAN’s Washington Journal, where a caller said that “the states that have legalized marijuana have done more damage to the cartels than the [Drug Enforcement Administration] could ever think about doing.”
“As far as drugs go, all we do is we enforce the laws. We don’t determine what those laws are,” Judd, who is scheduled to meet with President Trump on Friday, replied. “If Congress determines that marijuana is going to be legal, then we’re not going to seize marijuana.”
“But what I will tell you is when he points out that certain states have legalized marijuana, all the cartels do is they just transition to another drug that creates more profit,” he said. “Even if you legalize marijuana, it doesn’t mean that drugs are going to stop. They’re just going to go and start smuggling the opioids, the fentanyl.”
One potential solution that Judd didn’t raise would be to legalize those other drugs to continue to remove the profit motive for cartels. Former presidential candidate Andrew Yang made a similar argument in December.
Federal data on Border Patrol drug seizures seems to substantiate the idea that cannabis legalization at the state level has reduced demand for the product from the illicit market. According to a 2018 report from the Cato Institute, these substantial declines are attributable to state-level cannabis reform efforts, which “has significantly undercut marijuana smuggling.”
Additionally, legalization seems to be helping to reduce federal marijuana trafficking prosecutions, with reports showing decreases of such cases year over year since states regulated markets have come online.
In his annual report last year, Supreme Court Chief Justice John Roberts also noted reduced federal marijuana prosecutions—another indication that the market for illegally sourced marijuana is drying up as more adults consumers are able to buy the product in legal stores.