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Monday, July 30, 2018

National News - August 2018

SCOTUS Nominee’s Stance on Marijuana

WASHINGTON DC- POTUS’s Supreme Court pick, Brett Kavanaugh, will shape the country’s legal system for decades to come, if he is confirmed by the Senate. But how might the federal judge rule in cases dealing with marijuana legalization?

When it comes to cannabis and the right of states to set their own laws, it’s really anybody’s guess at this point. Kavanaugh doesn’t appear to have weighed in on the issue specifically, but it’s possible he’ll be asked about his views during confirmation hearings by pro-legalization Judiciary Committee members like Sens. Cory Booker (D-NJ) or Kamala Harris (D-CA).

However, a brief overview of the nominee’s judicial record reveals someone who routinely defers to the regulatory authority of the Food and Drug Administration (FDA), which has for decades refused to change marijuana’s restrictive status under
federal law.

For example, Kavanaugh sided with the majority in a 2007 case before the U.S. Court of Appeals for the District of Columbia Circuit, which determined that terminally ill patients don’t have a constitutional right to access drugs that haven’t received FDA approval.

A 2012 case concerning drug testing—for which Kavanaugh wrote a dissenting opinion—is also revealing. The federal judge argued that mandating drug testing of government employees at specialized residential schools for at-risk youth doesn’t violate the Fourth Amendment.

“A residential school program for at-risk youth who have a history of drug problems can turn south quickly if the schools do not maintain some level of discipline,” he wrote. “To maintain discipline, the schools must ensure that the employees who work there do not themselves become part of the problem. That is especially true when, as here, the employees are one of the few possible conduits for drugs to enter the schools.”

Kavanaugh also upheld the authority of the FDA in a 2013 case. He argued that the federal agency’s procedure for approving or denying expedited approval of medical devices should be respected. “A court is ill-equipped to second-guess that kind of agency scientific judgment.”

Kavanaugh said that because the drug testing program is “narrowly targeted” and the government “has a strong and indeed compelling interest in maintaining a drug-free workforce,” the mandate doesn’t amount to a violation of the constitutional right against unreasonable searches and seizures.

Though these cases don’t provide an especially comprehensive window into the SCOTUS nominee’s views on marijuana specifically, they do appear to reflect a pattern: Kavanaugh puts his faith in the FDA, which has denied that marijuana has any proven medical benefits, and his interpretation of the limitations of the Fourth Amendment seems to stand in contrast to drug policy reform advocates.

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Jury Clears MM Patient

GEORGIA-  The jury heard the case over three days of trial, spent two hours deliberating last week and ultimately found Javonnie McCoy not guilty on all counts, his attorney Catherine Bernard wrote in a Facebook post. McCoy was acquitted through a process known as jury nullification.

It’s not an especially unique choice in a Georgia court—except that the defendant,  McCoy, admitted that he was guilty. McCoy, who said he grew cannabis for personal use to treat chronic headaches he developed after being severely beaten in 2003, was transparent in the courtroom. And it paid off.

“The jury appreciated his honesty throughout the case—including testimony at trial and statements to police—and recognized that a good, hard working man living a quiet life and not bothering anyone didn’t deserve a felony conviction for his actions,” Bernard said.

Jury nullification isn’t unheard of, but McCoy’s case seemed to symbolically challenge prohibitionist policies that put patients and non-violent users in prison, with a criminal record that could follow them for the rest of their lives. While Georgia allows patients to use CBD extracts for medical purposes if a doctor recommends it, cultivating the plant is a felony that carries a mandatory minimum sentence of one year in prison.

In other words, even if the judge wanted to give McCoy a pass, their hands would be tied. Only the jury’s leniency and right to nullify allowed the defendant avoid a serious conviction.

“Most people—and even many lawyers—are surprised to learn that juries are not required to follow the law,” Vince Sliwoski, an attorney at the Harris Bricken/Canna Law Group, wrote. “When a jury’s conscience takes over and tells it that someone does not deserve criminal punishment for his or her actions, regardless of the law, the jury can choose to acquit.”

Sliwoski offered an interesting, hypothetical scenario. What if a jury in federal court was tasked with deciding the fate of an individual charged for violating the Controlled Substances Act (CSA)? “The possibility of jury nullification in a CSA case against a cannabis business is both fascinating and realistic.”

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Committee Blocks Marijuana Votes (Again)

WASHINGTON DC- Lawmakers on a key congressional committee once again blocked colleagues in the full House from being able to vote on marijuana-related amendments.

But the Republican-controlled Rules Committee, led by Congressman Pete Sessions (R-TX), continued its recent tradition of preventing floor votes on any and all measures to scale back federal cannabis prohibition.

Before this block, his panel had blocked at least 34 other cannabis-related amendments from reaching the floor for votes during the current Congress. The full House of Representatives has not been allowed to consider marijuana reform proposals since the spring of 2016.

Bipartisan groups of lawmakers cosponsored two new cannabis measures, which they were seeking to attach to legislation to fund parts of the federal government through Fiscal Year 2019.

(A third marijuana-related measure considered proposes shifting money away from forest and rangeland research toward “eradicating, enforcing, and remediating illegal marijuana grow operations on National Forest System land.” That measure was cleared for a floor vote.)

Under a ballot measure approved by D.C. voters in 2014, low-level marijuana possession and home cultivation is legal. But because of an ongoing federal appropriations rider enacted in past years included in the new FY19 bill, local officials have been prevented from adding a system of taxed and regulated cannabis sales.

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Criminal Cannabis Market Shrinking

COLORADO- There are no completely accurate methods to measure the size of illicit markets, no matter what is being bought and sold. There are, however, some figures that can be taken as proxies of these markets. In the case of cannabis, it could be argued that seizures and confiscations can be, in a way, interpreted as surrogates of the actual illicit market sales.

Seizure figures can help us better understand the direction of the illegal markets: are they growing or shrinking?

Total confiscations declined by 35 percent from 2016 to 2017, signaling a similar drop in illicit market marijuana sales over last year – and an even larger drop when compared to previous years.
However, it’s important to notice that confiscations can relate to different phenomena. The decline can also be interpreted as:

• A signal of a reduction of illegal cannabis production and sales.
• A reflection of a reduced interest by the DEA and other agencies.
• A proxy of a decline in the efficiency or efficacy of said law enforcement agencies.
• A sign of the surging impediments and hurdles these federal agencies face as more states legalize weed.

 It can be difficult to quantify with precision just how large the illegal market is and moreover, to what extent it is contracting. In order to determine a baseline, the analysis of plant confiscations by state as disclosed by the DEA in its annual report as well as marijuana seizures reported along the southern border by Homeland Security.

The decline in overall activity could very well be attributed to an enforcement protocol that is more lax than in years past as provisions in the federal budget preclude the deployment of resources to shut down legal pot businesses… But the key is LEGAL businesses so, in theory, illegal markets should continue to feel pressure from fed intervention.

As it can be appreciated, black market sales accounted for only 1/3 of sales in Colorado, and half of sales in Washington.

 “The successful reduction of the illicit markets in Colorado, Washington, and Oregon provides evidence that legalization works, and continues to support the assertion that ‘more legalization is better.’ Colorado has been most successful, licensed most liberally, and taxed the least; its legal market has grown the most and done the most damage to the illicit market. With the addition of California and Canada to the ranks of adult-use markets, it can now be expected that the overall North American illicit market will continuously decline throughout the forecast period and beyond,” it reads.

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