Marijuana on Trial: Who Decides?
| Publication year | 2017 |
Marijuana on Trial: Who Decides?
William Nettles
Prasad Hurra
Marijuana is becoming more prevalent in communities and states all around the country. Marijuana dispensaries opened in Illinois in late 2015; medical marijuana became available in New York in February 2016; the First Church of Cannabis received approval to operate as a church the day after Indiana Governor Pence signed a new religious freedom law in 2015; and voters in Ohio just defeated (64% to 36%) an initiative that would have amended the state constitution to grant a monopoly on commercial cultivation of cannabis to a small group of investors.
The local regulatory issues connected with this burgeoning interest in cannabis legalization are similar to many of the zoning and planning issues that local government attorneys deal with on a regular basis: moratoria, distance restrictions, nuisance law, zoning definitions, licenses and permits, and sign regulations to name a few.1
The preemption issues, however, add a whole new layer of complexity. This article focuses on the uneasy dance between the federal government and those states that have legalized marijuana in some fashion—whether for medicinal purposes or recreational use—and the efforts by many local governments to regulate marijuana cultivation, processing, distribution, and sales despite the fact that it remains a federal crime.2
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The Background
When Congress (not physicians) decided nearly half a century ago to classify marijuana (or "marihuana" as it was spelled in the law) as a Schedule I substance under the Controlled Substances Act (CSA),3 they deemed it had "no currently accepted medical use" and belonged in the most dangerous class of drugs. According to Gallup polling at that time,4 a mere 12% of Americans supported legalization of marijuana. The impact of this classification was immediate and serious for drug kingpins as well as small-time users who, for mere possession, now faced mandatory imprisonment and fines; forfeiture of vehicles; denial of federal benefits such as student loans, professional and commercial licenses; ineligibility to purchase or possess a firearm; and revocation of certain federal benefits such as public housing tenancy.5 Today, possession of marijuana for any reason outside of limited research remains a federal crime6 .
The criminal justice system was impacted as well. The ACLU reported that there were 8.2 million marijuana arrests between 2001 and 2010, of which 88% were for possession.7 Although blacks and whites use marijuana at similar rates, blacks are nearly 4 times more likely to be arrested for marijuana. In Iowa, D.C., Minnesota, and Illinois, that disparity jumps to 7.5-8.5 times.8
The public's attitude about marijuana has been shifting. While the approval rate hovered around 25% in the 1990s, by 2015 there was a clear majority (58%) of Americans in favor of legalizing marijuana for personal use. Support comes predominantly from young Americans, as well as Democrats and Independents.9
The Tug of War
Pushback against the federal CSA started with the people via the initiative process rather than state legislators. In 1996, California became the first state
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to allow the medicinal use of marijuana when voters approved Proposition 215, also known as the Compassionate Use Act (CUA).10 It exempts patients and certain caregivers, who possess or cultivate marijuana for medical treatment recommended by a physician, from criminal laws which otherwise prohibit possession or cultivation of marijuana. In May of 2009, the U.S. Supreme Court declined to hear an appeal of a California state appellate ruling that upheld the CUA and the Medical Marijuana Program (MMP) against a federal preemption challenge, which was brought by two counties that did not want to comply with the MMP.11 The California Supreme Court ruled that the legislative process that enacted the MMP could not be used to set more restrictive limits than those that had been approved by the voter-enacted CUA.12 Today, 28 states, D.C., Guam, and Puerto Rico allow for comprehensive public medical marijuana and cannabis programs13 .
Hawaii was the first state to legalize medical marijuana through the legislative process in 2010, but only allowed patients to grow their own. In 2015, the state legislature amended the law which has been called one of the most restrictive programs in the country.14 In 2012, Colorado and Washington became the first states to legalize marijuana for recreational use. Alaska, Oregon, and D.C. followed in 2014. Colorado voters passed Amendment 64, and a year later, decided to tax the retail marijuana industry (15% excise tax earmarked for school construction projects and 10% sales tax). With cannabis sales expected to hit $1 billion in 2015 in Colorado alone and revenues to the state reaching $125 million, the program is gaining a lot of attention nationally, but not everyone is onboard. More than 150 cities in Colorado have passed ordinances banning the commercial sale of marijuana15 .
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Law enforcement officials from Colorado, Kansas, and Nebraska sued Colorado Governor Hickenlooper, arguing that Amendment 64 was invalid because it conflicts with federal law and international treaties.16 The federal district court dismissed the case, ruling that the federal CSA does not create a private right of action. Then, Nebraska and Oklahoma tried to strike down Colorado's Amendment 64 in the U.S. Supreme Court. They argued that "the Constitution and federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed distribution schemes throughout the country,"17 but the U.S. Supreme Court denied certiorari in March 2016. Washington and Oregon filed an amicus brief on behalf of Colorado, highlighting the federalism issue.18
[T]his Court's original jurisdiction must be sensitive to federalism, which invites the States to explore new legal policies and address changes in society. Change emerges at different times in different States, and States are entitled to have different preferences. This critical value of federalism is particularly evident in the context of marijuana laws. Whatever preemption might flow from the Controlled Substances Act (CSA), it is clearly not a comprehensive marijuana policy. By its express terms, the CSA does not occupy the field.19 As Nebraska and Oklahoma admit, the CSA does not prevent States from decriminalizing marijuana, and they claim no intent to attack medical marijuana statutes. Congress has not funded enforcement for a national marijuana prohibition, and both Congress and the executive branch have expressed a strong willingness to allow States to experiment with different marijuana policies. Given 'the actual state of things,'20 the Court should allow these issues to percolate in the lower courts as States adopt new marijuana policies and act as the laboratories of democracy so aptly described by Justice Brandeis.21
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Recognizing the federal-state tension on the issue of marijuana legalization, the Obama Administration issued a memo to federal prosecutors in October 2009 encouraging them not to prosecute people who distribute marijuana for medical purposes in accordance with state law.22 In light of the ballot initiatives proliferating around the country, this enforcement policy was updated in August 2013. The U.S. Attorney General "deferred the right to challenge these state legalization laws" and advised the states to focus their efforts on the federal government's eight enforcement priorities: (1) prevent marijuana distribution to minors, (2) prevent revenue from marijuana going to criminal enterprises, (3) prevent diversion of marijuana from states where it is legal under state law to other states, (4) prevent state-authorized marijuana activity from being used as a cover or pretext for trafficking, (5) prevent violence and use of firearms in the cultivation and distribution of marijuana, (6) prevent drugged driving and the exacerbation of other adverse public health consequences, (7) prevent the growing of marijuana on public lands, and (8) prevent marijuana possession or use on federal property.23
The Obama...
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