Legalizing Cannabis

Experiences, Lessons and Scenarios

Tom Decorte, Simon Lenton, Chris Wilkins, Tom Decorte, Simon Lenton, Chris Wilkins

• Publisher: Routledge
• Year: 2020
• Print ISBN:
  9781138370906
• eBook ISBN:
  9780429765049
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Marijuana is the most widely used illegal drug in the world. Over the past couple of decades, several Western jurisdictions have seen reforms in, or changes to, the way cannabis use is being controlled, departing from traditional approaches of criminal prohibition that have dominated cannabis use control regimes for most of the twentieth century. While reform is stalled at the international level, the last decade has seen an acceleration of legislative and regulatory reforms at the local and national levels, with countries no longer willing to bear the human and financial costs of prohibitive policies. Furthermore, legalization models have been implemented in US states, Canada and Uruguay, and are being debated in a number of other countries. These models are providing the world with unique pilot programs from which to study and learn.

This book assembles an international who's who of cannabis scholars who bring together the best available evidence and expertise to address questions such as: How should we evaluate the models of cannabis legalization as they have been implemented in several jurisdictions in the past few years? Which scenarios for future cannabis legalization have been developed elsewhere, and how similar/different are they from the models already implemented? What lessons from the successes and failures experienced with the regulation of other psychoactive substances (such as alcohol, tobacco, pharmaceuticals and "legal highs") can be translated to the effective regulation of cannabis markets?

Legalizing Cannabis will appeal to anyone interested in public health policies and drug policy reform and offers relevant insights for stakeholders in any other country where academic, societal or political evaluations of current cannabis policies (and even broader: current drug policies) are a subject of debate.

Part I

The new legal cannabis markets

1 The uneven repeal of cannabis prohibition in the United States

Bryce Pardo

Introduction

Cannabis policy in the United States continues to change. However, unlike Canada and Uruguay, which have amended national laws, policy change in the US has occurred almost entirely at the sub-national level. The cannabis plant and most of its derivatives remain prohibited under federal law. However, since the mid-1990s states have moved to relax prohibition, permitting cultivation and use for various purposes. Initially, states began to amend their drug control and penal statutes to allow qualifying patients to obtain or possess cannabis to treat certain medical conditions. Though such state-level reforms for medical access conflict with federal drug laws, repeal has continued apace. In the last six years, states have taken additional steps to permit adults to use the drug for non-medical (i.e. recreational) purposes. In 2012, Colorado and Washington State were the first two jurisdictions of the modern era to vote in favor of regulating the supply and distribution of cannabis for anyone over the age of 21. Federal prohibition remains in place, though efforts have been made across levels of government to approach such legal conflicts pragmatically. Nevertheless, cannabis policy in the United States remains unguided, with states continuing to drive changes that favor private, for-profit commercialization.

After Colorado and Washington repealed prohibition in 2012 and replaced it with an alternative regulated system of supply, an additional nine jurisdictions now allow or will allow for non-medical supply and use by adults. Today, about one in five adults over the age of 21 in the United States live somewhere that permits them to legally obtain and use cannabis for mere recreation. Public opinion continues to favor ending prohibition on cannabis use. As trends continue, the federal government’s cannabis policy appears increasingly out of step with developments in the various states and shifting national attitudes. Without robust policy guidance from federal authorities, states are stitching their own legal and regulatory patchwork for the supply and use of non-medical cannabis within the remaining legal bounds imposed by federal law (e.g. interstate sale and transport remain illegal and firms that cultivate or distribute the drug cannot engage legally with the federally-regulated banking system).

Most states that have repealed prohibition have adopted a commercial model, allowing licensed for-profit firms to produce, process and distribute cannabis for adult consumers in the state. The goals of these reforms are to reduce the costs and problems associated with the illicit market and traditional responses to it (e.g. excessive policing of minority communities that infringes on civil liberties) as well as generate tax revenues through the sale of cannabis (Hall and Lynskey, 2016). Within that vein, the policy and regulatory design across states with burgeoning commercial cannabis markets differs slightly. This is unlike the regulatory variation in states that permit medical cannabis (now 34 in number), which may restrict who can access and supply the market.

In terms of non-medical cannabis, some states limit the scope and quality of products available, tax product at different rates, or restrict where individuals can consume. Nevertheless, 9 of the 11 jurisdictions that have repealed prohibition on non-medical adult use license for-profit firms to participate in the cannabis trade. Only two jurisdictions have – at least for the time being – adopted a non-commercial model restricted to home cultivation and supply of cannabis for adults. We should note that some of these design choices are, in part, due to federal prohibition, which continues to indirectly shape state-level reforms.

It is too early to evaluate the impacts of these new laws. Instead, this chapter provides a broad overview of the changing dynamic of cannabis repeal efforts in the United States. In section two, we first provide a short descriptive history of repeal efforts in the United States since the 1990s, starting with medical cannabis in California in 1996 and continuing on through to the present day. By 2006, ten states had passed laws permitting patients to obtain medical cannabis that included some appreciable amount of tetrahydrocannabinol (THC), the principal intoxicative agent in cannabis.¹ By 2016, that number had risen to 28. Changing medical access laws and the permission of commercial retail establishments provided a framework with which to extend repeal to non-medical use. Advocacy groups have argued that cannabis should be regulated like alcohol.² The suggestion offers a common and familiar example to voters (Hickenlooper, 2014), helping to reframe commercial legalization of non-medical use.

We then describe the ongoing policy impasse between state and federal laws and policy surrounding cannabis and how the executive branch of the federal government has, at first, limited its response to state repeal efforts for non-medical use. Though rhetoric and actions at the highest levels of the current federal government have recently pivoted in favor of prohibition (Sessions, 2018), efforts to enforce federal cannabis prohibition or pre-empt state laws remain stymied given existing levels of support for repeal within states, limited federal enforcement capacity and shifting policy priorities amidst an ongoing opioid epidemic.

The third section goes into state repeal efforts as they pertain to non-medical use by adults. These follow in chronological order, with the first serious attempt starting with California’s Proposition 19 in 2010. We then examine the two pioneer cases of Colorado and Washington, describing the immediate history and run-up to repeal, before describing some details of their regulatory framework. We then discuss the second wave of repeal efforts, two years later in Alaska, Oregon and Washington, DC and the third wave of voter-led repeal efforts, not all of which succeeded, in Arizona, California, Maine, Massachusetts, Nevada and Ohio. We note the one successful legislative repeal measure by Vermont and discuss some of the ongoing efforts of voter-led initiatives and bills in state legislatures.

The last section provides a brief comparative overview among the various regulatory frameworks across the states. Perhaps most useful is Table 1.3, which compares some regulatory design elements across nine jurisdictions. We note that most states have adopted a commercial model, though there are minor variations among them. There is more variation between commercial and non-commercial models, yet only two jurisdictions have adopted a non-commercial framework. It is possible that these jurisdictions will adopt a commercial framework in the near future.

Background

Medical cannabis

The establishment of regulated markets for adult non-medical use has its roots in the passage of voter initiatives that allow for medical access. Indeed, some note the concern that such medical access laws were intended to open the door to recreational reforms (Kilmer and MacCoun, 2017; MacCoun and Reuter, 2001). Starting with California’s Proposition 215 in 1996, medical cannabis has expanded across the United States either through voter initiatives or legislative action. There are variations among medical cannabis laws. Today, 34 jurisdictions³ allow for patients to obtain some form of cannabis or cannabis-derived product that contains appreciable amounts of THC. Another 13 states allow individuals to obtain oils derived from the plant that contain little or negligible amounts of THC.

California’s referendum, which passed with 56 percent approval, carved out a legal exemption from criminal prosecution for patients and caregivers who possess or cultivate cannabis recommended by a physician. The initiative permitted doctors to recommend cannabis for conditions such as AIDS, cancer, glaucoma, chronic pain or “any other illness for which marijuana provides relief” (Proposition 215, 1996). This last provision granted broad access to medical cannabis for undiagnosable and nebulous conditions, which may have legitimate benefits for those suffering from some form of discomfort or pain. However, the open set of conditions, coupled with a lack of regulatory oversight, created a loose access scheme in California, allowing adults over 18 an easy means to obtain the drug (Kilmer and MacCoun, 2017). Such loose medical access regimes were adopted by states in the Western US during the late 1990s and early 2000s. Under these designs, an adult over 18 can access medical cannabis whenever deemed necessary by a physician, amounting to little more than a de facto recreational regime (National Academies of Sciences, Engineering, and Medicine, 2017).

After California passed Proposition 215 in 1996, Alaska, Oregon, Washington State and the District of Columbia⁴ passed similar initiatives two years later to allow patients to access cannabis for qualifying conditions, which included several hard to diagnose ailments. Voters in Maine were the first state east of the Mississippi River to approve of medical cannabis, doing so in 1999. In 2000, voters in Colorado, Hawaii and Nevada approved medical cannabis. Of these, Nevada and Colorado amended these changes into their state constitutions, rather than laws. Enacting such a legal change into state constitutions requires a higher threshold of support and is thus harder to amend (or possibly strike down under a federal challenge). Also notable, Hawaii was the first state to adopt medical cannabis through the legislative process, rather than allow the voters to decide. States continued to adopt such laws over the years, with some like Florida, Missouri, Oklahoma and Utah loosening their medical laws from low-THC/high-CBD laws to allow greater access to THC (see Figure 1.1).

These laws vary across states in terms of qualifying conditions, patient registry, home cultivation, permission of caregivers and what products are available to patients. In Table 1.1 we provide a selection of such details for a handful of medical cannabis states when they adopted such laws. Some details have changed over time, as is the case with California which now requires a patient registry and permits licensed dispensaries.

Though states had started amending their laws to permit medical access to cannabis, initial efforts perhaps did not envision the commercial, for-profit model of private companies promoting brand-name strains of cannabis. Early laws were often vague and limited, given federal prohibition (Pacula, Powell, Heaton and Sevigny, 2015). However, by the late 2000s, commercialization was becoming a reality in many pioneer medical cannabis states. The development of dispensaries coincided with lax medical cannabis laws in loose access states. In California, Washington and Colorado, private operators began to exploit broad access provisions written into statutes. Patient caregivers or collectives began to pool their authorized patient or plant counts, evolving into the brick and mortar dispensaries that are well known today. States that adopted medical access laws later were often doing so through legislative bodies that accounted for federal law enforcement and sometimes restricted access to a narrower set of conditions.

Figure 1.1 Number of state marijuana laws.

Table 1.1 Details of selected state medical cannabis laws at time of adoption

The federal government enforced the Controlled Substances Act of 1973 (CSA), raiding such dispensaries and cultivation operations during the Clinton and George W. Bush Administrations. However, by 2009, the Obama Administration, facing a shifting public attitude toward medical cannabis, issued what is now known as the Ogden Memorandum, written by Deputy Attorney General David Ogden. The policy memorandum directed federal authorities to focus on high-level targets, such as traffickers and organized criminal groups, and not individuals complying with state law. The memorandum did not offer legal protection to increasingly commercial firms that supplied cannabis to patients, yet, the directive was interpreted as such (Kamin, 2014; Kilmer and MacCoun, 2017). The memorandum is generally considered the starting point for the legitimization of commercial dispensaries. After its dissemination, states began to pass laws to offer legal protection for commercial operators, signaling that such firms were compliant with state law in an attempt to shield them from federal authorities (Pacula et al., 2015). These developments were seen in state medical markets. Colorado’s medical cannabis system, which had existed since 2001, had less than 5,000 registered patients in 2008. That number jumped to over 40,000 in 2009, the first year of systematic registry recording, and reached nearly 120,000 in 2010 (Colorado Department of Public Health and Environment, 2018).

Evolving public opinion and policy impasse

Except for the opioid crisis, the most widely discussed issue involving drug policy in the United States today is shifting attitudes and laws on cannabis. The public debate arises between proponents of repeal, pointing to a range of perceived or actual benefits (e.g. enhancing civil liberties, generating tax revenues, etc.) and opponents, wanting to avoid health and social harms (e.g. drugged driving, the development of a large and powerful industry that promotes inte...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• Contributors
• Foreword
• Acknowledgments
• List of abbreviations
• Introduction
• PART I: The new legal cannabis markets
• PART II: General models of reform
• PART III: Lessons from alcohol, tobacco and legal highs
• PART IV: Earlier innovations in cannabis law reform
• PART V: New cannabis legalization proposals
• Conclusion
• Index