After the Senate in Washington State last week passed a bill to reimpose criminal penalties for simple drug possession—legislation that was amended in the chamber after first being introduced as a decriminalization proposal—a House panel on Wednesday again revised it to slightly downgrade the proposed penalty to a simple misdemeanor.
The amended bill, which the House Appropriations Committee voted 18–14 to advance, is expected to be debated, along with further amendments, on the House floor later this week. If passed by the full chamber, it would need to be approved by the Senate again before the legislative session ends on Sunday.
“I think it’s evident, after discussion on the amendments, that the direction we want to take now is not the same direction that we have had in the past, that we want to treat rather than incarcerate,” Rep. Eileen Cody (D), who brought the misdemeanor amendment, said at Wednesday’s committee hearing. “The bill that is now before us adds a lot of meat to the bone on treatment and how we are going to move forward as a state. I hope that we can be a model that will see this happen across the country.”
Lawmakers from both parties have said it’s crucial to send a bill to the governor’s desk to replace Washington’s now-invalidated felony law against drug possession, which the state Supreme Court struck down in a narrow, divided ruling in February. The unexpected decision in the case, State v. Blake, immediately halted arrests and prosecutions for drug possession and has since freed dozens of people incarcerated on charges for mere possession.
In the aftermath of the Blake ruling, lawmakers introduced several bills to replace the old law, ranging from proposals that would effectively reestablish past felony penalties to alternatives that would end penalties for drug possession entirely, instead routing people to assessment and treatment services. A bill that reached the Senate floor last week, SB 5476, originally would have formally decriminalized possession of small amounts of drugs, but a striking amendment adopted during floor debate instead imposed a gross misdemeanor charge, which can carry penalties of up to a year in jail and a maximum $5,000 fine.
On Wednesday, the House committee approved another striking amendment to the bill. The change, introduced by Rep. Cody, replaced the gross misdemeanor with a simple misdemeanor, which carries up to 90 days in jail and a $1,000 fine. Some lawmakers have pointed out that a gross misdemeanor could actually lead to longer sentences in some cases than the original felony-level possession charge given how state sentencing guidelines are structured.
Like the Senate-passed bill, the House-amended legislation still requires that law enforcement divert an individual caught with controlled substances to behavioral health services for their first two violations. Subsequent violations could also be diverted subject to a prosecutor’s approval.
The amendment also expands statewide treatment and recovery services, including access to housing, recovery coaching and job education, among other services. Lawmakers on both sides of the aisle have said they support focusing more on treatment than incarceration to address substance use disorder, although Republicans and moderate Democrats have stressed the need for criminal charges as a tool for enforcement.
Another change in the amendment has criminal penalties set to expire in mid-2023, with possession dropping to a Class 2 civil infraction, which carries a $125 fine and no possibility of jail time, unless lawmakers pass separate drug legislation by that point. People could avoid the fee if they completed a behavioral health assessment within 30 days, and fees from the civil infractions would go to fund administrative costs related to the Blake decision.
Some Republicans at the panel hearing worried that the bill’s diversion provisions might create promises that some parts of the state couldn’t keep. They said it’s unclear whether Democrats’ pledges to fund expanded services would be sufficient to staff the bill’s sweeping treatment and recovery programs.
Rep. Joe Schick (R) noted that the bill prescribes that diversion “will be done to the availability of the money that we’ve put in there.”
“I question whether or not that has been totally worked through,” Schick said. “For those areas that have the counseling, great…but we don’t have that everywhere, and I am really concerned about that.”
The panel adopted a handful of other amendments during the hearing, primarily meant to clarify certain parts of the proposal—for example that diversion opportunities would exist for both adults and minors—and fix minor drafting errors. Most of the changes passed unopposed on voice votes.
Lawmakers defeated two striking amendments that would have effectively replaced Washington’s old drug felony law with a similar version, updating it with only a few words to address the state Supreme Court ruling. Democrats said those proposals would be a step backward.
“I think we can all agree that our current policy of a felony and incarcerating individuals is a failed policy. We have lost the war on drugs,” said Cody. “To try and continue the same thing is just inexplicable.”
Another amendment was offered but then withdrawn by Rep. Nicole Macri (D). That change would have further encouraged law enforcement to divert people to health services before arresting or charging them, but Macri said at the hearing that she’s working to revise the amendment after noticing “some technical inconsistencies” in the current legislation. She expects the amendment to be ready for consideration on the House floor.
Macri voted for the amended bill Wednesday, saying she disagreed with criminal charges for simple drug possession but calling SB 5476 a way to move the conversation forward. “I believe strongly that we don’t need to hurt people to help them,” she said. “And I do think this bill, with the striker and the amendments that have been accepted today, is a much stronger bill than was sent to us by the Senate.”
Macri and other Democrats, however, have at the same time expressed regret that the bill includes any criminal penalties whatsoever for simple drug possession, which they say should be treated as a health issue.
“The war on drugs is an abject failure, and interaction with law enforcement and the court system does not assist people with substance use disorders,” Macri said, adding that she remains “concerned particularly about the racial, disability and income disparities that we see and who is charged with drug possession in our state.”
“A simple possession charge, which could come with up to 90 days in jail and up to $1,000 fine, is something that is unnecessary and harmful to some of the most vulnerable people in this state,” she said.
Rep. Roger Goodman (D), a longtime drug reform proponent who has taken a lead role in House negotiations with the Senate on how to respond to the Blake decision, told Marijuana Moment in an interview on Monday that more changes to the bill will be proposed in coming days. “Beyond the Cody striker, there will be further amendments on the [House] floor,” he said.
Goodman added that while he’d like to see criminal penalties removed completely for drug possession, he and other more progressive lawmakers are working to identify proposals that the Senate, which has been wary of decriminalization, is willing to accept.
“This comes down to the raw political calculation of counting votes,” he said. “What we might prefer in the House might not get enough votes in the Senate, and that has to be part of our calculation.”
While Goodman said he’s “not happy” with the current proposal to reestablish criminal penalties, he’s “not dissatisfied” with the emerging compromise, either.
“The court has given us—you can look at it either as a gift or a grenade,” he said of the Blake decision. “We’re trying to transform it into something that is really going to help people out there.”
As Goodman describes the current House proposal, it will divert people early in the criminal justice process—often before arrest or formal charges are filed—and instead connect them with specialists who would help them navigate an expanded suite of assessment and treatment programs and other support services. “In reality there will be very, very few convictions, because people who need help will get it,” he said.
By mid-2023, lawmakers would also be forced to act on recommendations from a new state workgroup that would study drug policy with an eye toward decriminalization and behavioral health. If the legislature were to fail to act by the deadline, simple possession would automatically be downgraded to a civil infraction.
“There’s going to be a sunset on this,” Goodman said. “It’ll expire in the middle of 2023, and at that point we will have analyzed what the needs are, where the gaps are [and] how this new regime is functioning. And if we can demonstrate, which I believe we will, that the therapeutic approach is more effective than the punitive approach, then we will proceed further, and may even reduce the penalty below a misdemeanor or even to something like what they’ve done in Oregon, where there’s not even the possibility of a criminal conviction.”
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.
Oregon voters last year passed an initiative that replaced criminal penalties for possessing small amounts of drugs with a $100 fine or a requirement to complete a health assessment within 45 days. The measure also drastically expanded health services through funding from the state’s cannabis tax revenue.
Many favor taking a similar approach in Washington. A bill introduced in February, just weeks before the Blake decision came down, would have eliminated penalties for drug possession completely and drastically expanded substance use disorder outreach, treatment and recovery. That bill, HB 1499, passed one House committee, chaired by Rep. Goodman, but failed to advance further before a midterm cutoff deadline.
On Tuesday, Attorney General Ferguson released a statement in favor of broader decriminalization. “This is Washington’s moment to overhaul a broken system and end the failed war on drugs,” he said. “Criminalizing simple drug possession exacerbates racial disparities. Moreover, it continues our failed criminal justice response to a public health challenge. Public health challenges require public health solutions — including making significant new investments in treatment that expand our current system.”
— Washington State Attorney General (@AGOWA) April 20, 2021
Gov. Jay Inslee (D), for his part, has been quiet on the various proposals in the wake of Blake. Asked last week about the Senate floor vote, a spokesman told Marijuana Moment that usually “we do not explicitly say what we prefer or would sign until such legislation actually makes it to the governor’s desk in final form for review.”
Goodman, along with nine cosponsors, has introduced legislation to remove criminal penalties for low-level drug possession and replace them with a civil fine.
“What comes out of the legislature this year is certainly not as far as I’d like to go as far as reducing the punishment for what is a health issue,” he told Marijuana Moment, “and that’s why I introduced a bill that put only a civil infraction in place.”
HB 1578, which would expand treatment and recovery services and reclassify low-level possession as a civil infraction, punishable by a fine of up to $125 and no possibility of jail time, was introduced just last Thursday. Goodman called it an “insurance measure,” acknowledging that at this point in the process, “the Senate bill is the vehicle” that lawmakers will ultimately send to the governor.
“There’s no time for the Senate to do anything but either concur or refuse to concur with what the House passed,” he said, “so we are having to confer closely with the Senate to see what they are willing to pass.”
There’s little appetite among lawmakers for leaving the situation as-is, with no state law against drug possession on the books. “I do believe it would not be responsible to leave this vacuum in the law right now because of the public’s concern about young people and because of concern about [use in] public spaces,” Goodman said.
On Tuesday, the state Supreme Court denied a motion for reconsideration of Blake, meaning the ball is now squarely in the legislature’s court.
The state Supreme Court has denied a motion to reconsider its Blake decision that struck the statute criminalizing drug possession as unconstitutional. It’s here to stay: pic.twitter.com/kWoCgvmq4D
— David Kroman (@KromanDavid) April 21, 2021
“What makes me less uncomfortable with this interim measure is that it is an interim measure, and we’re not putting something in place permanently,” Goodman told Marijuana Moment. Tens of millions of dollars to fund expanded behavioral health services are also set to be included in the legislature’s final budget bill, Goodman said, which is expected to be unveiled later this week.
“We are structuring the intervention to be as far upstream as possible so that law enforcement will be making referrals to assessment and treatment and other services even before there are arrests or charges or convictions,” he said, making for “very little incarceration and very few convictions.”
Overall, he said, the proposals are about creating “as aggressive a therapeutic response as you can create”—constrained by what can muster a passing vote.
Republican lawmakers said in a media briefing Wednesday morning that they’re willing to support SB 5476 as the Senate passed it, with criminal charges intact but with opportunities for diversion to behavioral health services.
“There’s a group out there that wants that to be fully legal and no restrictions, and what we know is that gives us no real path to treatment,” said Senate Minority Leader John Braun (R). “We have to create a system that gets after treatment, and we have some concerns even with the piece that passed off the Senate floor, because you no longer have the Class C felony charge.”
“When you talk about diversion, for some folks that works,” Braun added. “For a lot of folks, it doesn’t work. You have to have some leverage to get folks in and committed to treatment and their misdemeanor gives you 90 days—sometimes you can double that 180 days to keep folks in treatment for underneath—but that’s not enough.”
Rep. Andrew Barkis (R) said that “the important component out of this particular piece of legislation is the roadmap to treatment.” Rather than downgrade criminal penalties, he said, lawmakers should focus on treatment, from detox programs to recovery housing. “That is where our resources should be,” he said.
Washington voters, for their part, are generally supportive of decriminalization, according to a statewide poll released by advocates earlier this month. Fifty-nine percent of those surveyed said lawmakers should use the Blake 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, while 18 percent were unsure.
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, meanwhile, a bill that would legalize possession of a wide range of psychedelics last week passed its second Senate committee.
“The war on drugs has been an abject failure because it is based on the false belief, the false notion, that criminalizing people, arresting them, incarcerating them for possessing, for using drugs, will somehow deter use and improve public safety,” sponsor Sen. Scott Wiener (D) told colleagues before the vote. “It has done neither.”
“Instead we have spent trillions in the last half century on the war on drugs, more people are using drugs now, there’s more addiction, there are more overdoses—I’m talking about drugs generally, not psychedelics,” he said. “We have busted taxpayer dollars, and we need to move towards a more health-based approach.”
Photo courtesy of Markus Spiske
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: