Lame Duck: WIll Michigan Cut Caregivers

 

Lame Duck: WIll Michigan Cut Caregivers

 by Ben Horner

Lame duck session is the period of time directly after elections that lasts until that legislative cycle ends and a new one begins. As reposted widely in mainstream media, the biggest concern regarding cannabis is the plummeting prices due to overproduction of pot in the licensed market and the so-called illegal one. This encourages the question: “I thought we freed the weed?”

The Michigan Medical Marihuana Act (MMMA), as defined by the people’s enacted law of 2008, allows a caregiver to grow for up to five patients. A caregiver can also be a patient, which allows a caregiver to grow up to 72 plants. Over the years, the MMMA has been amended several times, often to make non-substantive changes. A recent example is HB 5512, which only changes bits of language in the law that comports with legislative legalese and changes nothing substantive about the law. It is politically difficult to amend an initiative such as the MMMA because to do so requires a three-quarter majority vote of both house legislatures in Michigan. However, some amendments have been made to the MMMA; some miniscule and some with significant impacts. Here we examine two examples that are noteworthy.  

HB 4851 of 2011 was approved December 14, 2012, in lame duck session

Also known as the Cavanagh bills, this package of bills was an attempt by the legislature to “clean up” what some conservatives believed was a poorly crafted MMMA. Four tie-barred bills focused on doing things like requiring that patients travel with their cannabis in a secured location such as a locked box in the trunk of a vehicle. The greatest modification was an amendment to the MMMA that changed the definition of a caregiver that made it a requirement of a caregiver to not have been convicted of any felonies for ten years. 

The second major rewrite was due to concerns of people being approved to use medical marijuana who were not legitimate patients, but were milled through the program by incompetent or unscrupulous physicians. Thus, language was added to the MMMA requiring a bona fide patient–doctor relationship to be established before a physician could rightly approve a patient for medical marijuana. Activist groups exchanged this for their granted request for a board to review new qualifying conditions for approval to the medical marijuana program. 

HB 4210 of 2015 was approved September 14, 2016 

Medical marijuana dispensaries and compassion clubs sprouted up across the state shortly after the vote to legalize medical marijuana. Some were private clubs, while others were storefronts. All were supplied entirely by medical marijuana caregivers. Rep. Mike Callton was the main sponsor, and after years of negotiations, and many fundraisers, passed the Medical Marihuana Facilities Licensing Act and the Marihuana Tracking Act. Tie-barred was an amendment to MMMA that created new definitions of marijuana-infused products made by patients and caregivers, and restricted how those products should be distributed: that is, only via “provisioning centers.” 

Butane extractions, used to make shatter and wax, was also banned in this package, due to significant concerns from several home explosions caused by making “dabs.” This did little to stop the practice, however. Enforcement has its challenges.

Case Law and Prosecutorial Discretions 

Even more impactful on caregivers has been how enforcement varies widely by different county prosecutors. The first major precedent of medical marijuana case law came in 2013 from an appeals court decision pertaining to patient-to-patient transfer of medical marijuana. The McQueen decision created a narrow interpretation of the MMMA, which disallowed the exchange of medical marijuana except when directly assisting a patient with their medical use of marijuana. This case law closed many dispensaries and compassion clubs around the state. 

The “four prongs of a Section 8 defense” was next, forcing patients and caregivers to prove four separate and rather subjective things regarding the validity of being a “real” medical marijuana patient in order to use a medical marijuana defense in court. Failure to convince a judge of these four points prevented juries from being told of a defendant’s status as a medical marijuana patient or caregiver licensed by the state. This gave prosecutors and judges large degrees of latitude to convict patients and caregivers. In some counties, such as Genesee and Washtenaw, the prosecutors largely refused to charge medical marijuana patients and caregivers. In most other counties, “bad apples” were made examples of, particularly in places like Oakland County. The term “Green Zones” was used to describe where caregivers, dispensaries, and compassion clubs were tolerated by local law enforcement, becoming safe havens for people to acquire their medicine.     

Considerations

For the last two years, since cannabis has become legal and more widely available in Michigan for all adults over the age of twenty-one, the number of medical marijuana patients and caregivers registered with the state has decreased. For almost ten years, caregivers supplied dispensaries with their products. Now the commercial growers produce more cannabis than the medical and recreational pot markets require. Thousands of pounds are destroyed yearly and the prices are still falling, panicking investors in the new cannabis industry. 

So far, enforcement against “illegal” caregivers and other home cultivation operations has been minimal, but the cannabis industry is lobbying to reduce the number of patients that a caregiver can grow for and asking the state to start going after caregivers that are growing for more than personal use and use by their patients.

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Biden’s Campaign Promises Kept or Blowing More Smoke?

 

Biden’s Campaign Promises Kept or Blowing More Smoke?

by Amy Wilding-Fox

Two years ago, our nation was facing a choice. A heated and contentious election cycle, Americans found themselves even more polarized than ever, choosing yet again who would be president for the next four years. The Republicans had their man in Trump, but the Democrats had to find the person who would run against the incumbent. 

Cannabis legislation and legalization had been gaining momentum the previous decade or so, but 2020 found cannabis issues to be front and center. With many states having legalized or decriminalized cannabis, several democrats on the debate stage vying for the nomination were asked their stance. Early on a question was asked by show of hand, who would support de-scheduling cannabis, in other words removing it from The Controlled Substance Act completely like cigarettes and alcohol. All prospective nominees raised their hand except for Joe Biden.

When asked why he was the only one who did not support the idea, Biden responded by saying that he supports the rescheduling (not de-scheduling) to a Schedule II Narcotic or lower, thus removing it as a Schedule I. In other words, Cannabis use would still be illegal at a federal level, but it is also shown to have medical purposes. As it stands, the Schedule I placement calls marijuana highly addictive with no medicinal purpose, lies created a century ago as Reefer Madness spread across the country. It would also open the flood gates of federal funding for testing cannabis for medicinal purposes. Along with the plan to reschedule, Biden also appealed to the cannabis vote and young vote at the time by promising to end federal prosecution and expunge previous offenders of simple possession. 

Two years later, Americans are finding themselves in a heated mid-term election. Yet again, the cannabis voters are being wooed by those yielding power or vying for their votes. From that perspective, it is not very surprising that now President Biden is mentioning his promises from the last presidential election and his plans to keep them. 

Exactly a month before the November Mid-terms, Biden announced that he is using his presidential powers granted to him by the US Constitution to pardon and expunge any Americans that have or have had simple possession charges at the federal level. From there, he urged all states and governors to follow suit, regardless of partisan lines. He stated that too many American lives have been negatively impacted by archaic marijuana laws, some of which he had previously helped to enact at the height of the War on Drugs, and this is one step in righting those who have been wronged by them. According to the White House, over six thousand people will be impacted by this decision. This does not include anyone found trafficking or those with other felony charges attached. 

Biden did not stop there. He then went on to discuss his fast tract plan to have cannabis rescheduled from a Schedule I to a Schedule II. While this does not make cannabis legal at the federal level, it is a crack in the door to the ultimate prize of removing marijuana completely from the Substance Abuse Act. He is asking the Department of Health and Human Service and the Attorney General to “initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.” This announcement immediately prompted a bi partisan bill to re-schedule marijuana to regain its momentum in the Senate.

Some advocates feel that this step is not enough to fulfill the promises. They feel Biden is simply blowing smoke to win votes during this important mid-term election, yet this election will determine who will have control of the House and Senate for the remainder of Biden’s first four-year tenure.

The timing of his announcement is not by chance. The is a strategic play made by the democrats, there is no doubt. While it may be a plea to win votes, this announcement at the federal level is the grandest example yet of the change in basic assumptions revolving around cannabis use and cultivation. Cannabis use and its benefits are now spanning generations. Grandparents are now educating their grandchildren about the history of this fight to “legalize it”. All of whom are now at voting age.

 Instead of a counterculture once looked down upon, politicians see the opportunity in the numbers of those who are now a sub-culture. There is a new green thread that is now woven tightly within the fabric of the United States. Politicians can no longer ignore such a large population of voters.

Of course, Biden is taking this moment to seize the opportunity to remind voters that he is the first president to truly attempt to change federal laws surrounding marijuana. While previous administration on both sides have had opportunity to do so, the most that they did was tell their AGs not to prosecute or focus on marijuana crimes in states where laws had already been changed. 

While his plan is not perfect, this serves voters, in particular the cannabis vote, a reminder. Cannabis voters are no longer seen as “the lazy American.” There is a power in our multi-generational votes that we did not have just a couple of generations ago. Therefore, it is time to show them their changes in assumptions are correct. The Cannabis vote is not the lazy American vote, but a pro-active one. 

Cannabis voters need to be mindful and research where each candidate truly stands. It is no longer simply red or blue, but which candidates understand the power that the once demonized plant will have in reshaping our lives and world moving forward? Which candidates best understand not only the positive economic impact in selling weed for consumption, but the benefits cannabis legalization has on our environment as a renewable resource? Which candidates are going to fight to ensure the cannabis industry will be equitable and not benefit only those with the most dollars? 

These are just some of the questions that need to be asked when filling out ballots. Now more than ever it is important to be an educated voter. While presidential elections get the best turnouts, mid-terms truly affect your local municipalities and day-to-day lives of Americans more. The choices made this November across the country will determine just what will be accomplished in your hometown and nation. Will the door to federal change be opened, or at the very least cracked? Or when the smoke settles, will the nation remain stagnant because of bickering between partisan lines? 

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