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The House passed a budget on Thursday that included an amendment to protect medical cannabis users through September. The measure reflects legislators’ concerns about what Attorney General Jeff Sessions’s war on marijuana means for a rapidly growing industry, the tax revenue it’s generating and, especially, the people who rely on medical marijuana.
Steph Sherer, executive director of Americans for Safe Access, notes, “it really shows that the leadership does not want to see Sessions have unfettered access to go after medical cannabis.”
The legalization of marijuana—especially medical marijuana—has seemed growingly certain for years. What we know about the medical potential of cannabinoids grows by the day, and the marijuana industry’s reaping in profits in the billions. And that’s with only nine states and the District of Columbia having legalized recreational use.
No one could have predicted the executive branch would return to the failed “drug war” policies or begin targeting marijuana indiscriminately amidst an opioid epidemic. Of course, no one expected Trump or Sessions, who is of the opinion that “good people don’t smoke marijuana.”
Sessions’s fixation on marijuana makes little sense.
At a Senate drug hearing in April [2016], Sessions said that “we need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger.” He voiced concern over statistics showing more drivers were testing positive for THC, the active component in marijuana, in certain states.
As one January Newsweek article’s title put it, “Legal Marijuana is Supported by Every Group in America Except Jeff Sessions, Republicans, and Old People.” And while fewer and fewer Americans oppose legalization, even fewer favor enforcing federal marijuana laws.
Sessions’s first shot at marijuana users came within three months of his confirmation. On May 10, 2017, Sessions issued a memo instructing federal prosecutors to charge defendants with the most serious crimes that can be proved, ensuring the harshest sentences. That's the sort of approach that results in life sentences for marijuana-related offenses.
Ordering federal prosecutors ... to crack down on drug offenders, Atty. Gen. Jeff Sessions made clear he wants the Justice Department to turn the clock back to an earlier, tougher era in the four-decades-long war on drugs.
In a memo, Sessions said federal prosecutors should "charge and pursue the most serious, readily provable offense" in drug cases, even when that would trigger mandatory minimum sentencing.
Mandatory sentencing laws for drug users have been controversial for years, and many Republicans as well as Democrats now oppose them as unfair, ineffective and too costly.
Under the Obama administration, by contrast, Attorney General Eric Holder “instructed prosecutors to reserve the toughest charges for high-level traffickers and violent criminals.”
To be clear, Sessions hasn’t just deviated from Obama-era positions: He’s up against advocates of criminal justice reform in both parties.
The new policy threatens to halt a push for bipartisan criminal justice reform that has been led by some of Trump's closest advisors and embraced by key Republicans on Capitol Hill, including House Speaker Paul D. Ryan.
Sen. Rand Paul, (R-Ky.) criticized the new policy … arguing that mandatory minimum sentences disproportionately targeted minorities because of how different drugs are categorized under the law.
The "new policy will accentuate that injustice," Paul said in a statement.
"Sessions is an outlier in his own party and even among many of his own colleagues in the administration," said Inimai Chettiar, a director at the Brennan Center for Justice at NYU School of Law in New York. "A lot of Republicans support reductions in sentencing."
In January 2018, Sessions escalated his war on marijuana by reversing the Obama administration’s policies—in the form of the Ogden and Cole memos—which respectively stated DOJ wouldn’t go after medical marijuana operators in compliance with state law and encouraged federal prosecutors not to prosecute marijuana-related federal offenses legal under state law unless other federal concerns were implicated, i.e., marijuana revenue going to gangs and cartels. Axing the memos rendered the guidance that had steered financial institutions serving marijuana operators null, alarming banks and their customers alike.
Sessions’s war on marijuana’s going to be mighty expensive, from enforcement to prosecution to incarceration. A rough estimate put the annual cost of imprisonment for federal prisoners incarcerated for marijuana-related crimes at $16 billion in 2013. These costs will increase enormously under Sessions. (Imagine how expensive it’d be to care for all those medical marijuana users receiving mandatory minimum sentences!)
Fun fact: To keep up with the anticipated increase in the prison population, Sessions is reversing the Obama-era effort to phase out the use of private prisons, which can be even costlier than public prisons. NB: People incarcerated in private prisons are more likely to be subjected to violence and less likely to have opportunities for education and rehabilitation.
Sessions has settled on a strawman argument against leaving marijuana regulation to the states. He previewed it in a letter sent to Washington state in July 2017, among other places.
Sessions claims concerns about the outcomes of Washington's regulatory experiment, culled from a report by the Northwest High Intensity Drug Trafficking Area (HIDTA), a federally funded drug task force. Those concerns include diversion of legal marijuana from Washington to other states, an increase in drivers testing positive for past marijuana use, and an increase in marijuana-related calls to the state's poison control center. “This report raises serious questions about the efficacy of marijuana 'regulatory structures' in your state,” Sessions concludes.
Even if Jeff Sessions hasn’t changed, the landscape has. Twenty-nine states and D.C. have legalized medical marijuana, there’s a robust marijuana industry and we know more about what happens when marijuana is legalized, more about marijuana’s uses and benefits.
More than 80 percent of Americans favor legalizing medical marijuana. According to some polls, approval may even be around or above 90 percent. Pollsters likewise agree that there’s majority support for legalizing recreational use.
Civiqs, which surveys opinion via a nationally representative online panel, consistently finds more than 60 percent of Americans favor legalization. Fewer than 30 percent oppose it.
Gallup has been asking respondents about legalization for 49 years. Last year, 65 percent of Americans reported that they support legalization. For perspective: In 1969, when Gallup first asked a marijuana question, just 12 percent favored legalization.
In 2017, Gallup also found that even a slim majority of Republicans favor legalization. Granted, Civiqs and Pew find a slightly different picture. Civiqs shows 40 percent of Republicans favor legalization with 50 percent opposed. Pew finds 43 percent in favor, 55 percent opposed.
Whether a majority support legalization or not, Republicans (other than Sessions) don’t hate pot the way they used to. Except the 65+ crowd: 69 percent of them oppose legalization, and just 21 percent are in favor of it.
Since California first legalized medical marijuana in 1996, 28 other states have joined. Nine states have legalized marijuana for both medical and recreational use—Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont and Washington. Maryland’s expected to join their ranks soon.
Reader, this is what we call a trend.
There’s now a whole marijuana industry. In 2017, national marijuana sales came to $9 billion. They’re set to soar in 2018: With California issuing recreational marijuana retail licenses, which began in January, sales are estimated to reach $11 billion in 2018; they’re projected to rise to $21 billion in 2021 even if no other states legalize marijuana. And that’s a conservative projection, given others have projected revenue will reach $25 billion by 2020.
State legalization has created jobs.
In 2015, a year after Colorado legalized recreational cannabis sales, the legal marijuana industry created 18,000 full-time jobs and $2.4 billion in economic growth in the state, according to the Marijuana Policy Group. New Frontier suggested this trend could be sustainable on a national level.
There are even marijuana law firms.
Loosening federal restrictions on cannabis research alone would spur the creation of additional jobs, not to mention revenue. Jeff Chen, director of UCLA’s Cannabis Research Initiative, says that current restrictions on cannabis in the United States “has given other countries a leg up. Everything from academic cannabis research to private research and development can proceed faster” in other countries, he notes, which means that “all of those jobs, intellectual property, etc., are being generated in countries like Canada and Israel, and not the US.” The opportunity cost? “We are talking about tens of billions of dollars at stake here,” Chen says.
Legalizing recreational marijuana has also provided a tremendous source of tax revenue for states. Over just the first six months of recreational marijuana sales, Nevada collected $30 million in taxes. Both Nevada and Colorado, which saw $119 million in marijuana-related tax revenue in 2017, set aside some portion of those funds for education. New joiner California is imposing a 15 percent excise tax on recreational marijuana.
Backlash
Sessions’s push for federal enforcement threatens the now $6.7 billion marijuana industry. It’s already chilled banks’ interest in involvement and could certainly discourage investment in U.S. marijuana operators and industry, which has until now been increasing year to year. In 2016 alone, investors put $500 million into the cannabis industry.
The threat to industry’s part of why Sessions met early high-level resistance even within his own party.
Senator Cory Gardner of Colorado, a Republican, is among the most vocal defenders of legalization. Last year, Colorado marijuana sales revenue totaled $1.5 billion. The intra-party fight could get ugly: Gardner promised to block nominees if Sessions reversed the Cole memo. Since Sessions’s turnabout—he promised not to reverse policy initially—Gardner’s done exactly that.
If we’re applying an ideological lens, Gardner’s the one holding the legitimately conservative position.
“As you know, I opposed the legalization, but the fact is, this is a states’ rights decision, and that’s the message I delivered very clearly ... to the attorney general.”
Although there can’t be many single-issue marijuana voters, Sessions’s move nonetheless comes at a political cost with the public. Overwhelming support for legalization, particularly for medical marijuana, means that the administration’s crackdown will only exacerbate the sense that it’s out of touch.
There’s an opioid epidemic killing 115 people a day in the United States, but Jeff Sessions wants to go after marijuana. Marijuana overdoses, by the way, have killed zero people.
Aggressive enforcement of federal prohibitions on marijuana doesn’t make sense, not as a matter of cost savings, public health or safety. In fact, it’s legalizing marijuana that carries benefits for all three. Legalizing marijuana at the federal level would create 1.1 million jobs by 2025. It’d also result in about $125 billion in tax revenues.
It’s not just a matter of opportunity costs in states where marijuana is legal. Even if Sessions just focuses on recreational marijuana use, he’s depriving those states of tangible, quantifiable benefits. A study has found a reduction in opioid usage where marijuana is legal. Legalizing marijuana also decreases violence and shrinks the criminal market. Note that regulated marijuana is also safer than unregulated marijuana.
Cracking down on recreational use also has repercussions for medical marijuana users, some of whom rely on cannabinoids to keep life-threatening conditions at bay. Sherer, Americans for Safe Access’s executive director, points out that “in states that have legalized recreational marijuana, many dispensaries do both [recreational and medical marijuana].” The way that Washington state’s laws are crafted, Sherer says, means that every operator will be equally vulnerable in the event of a crackdown on recreational use. Patients there would lose access to medical marijuana altogether.
What happens next?
The amendment to the budget protecting medical marijuana, alternately referred to as the Commerce, Justice, and Science (CJS) and the Rohrabacher-Blumenauer amendment, is a welcome but temporary solution. The long-term fix requires amending the Controlled Substances Act, or CSA, the basis for marijuana’s illegality, passed in 1970.
The CSA categorizes substances I-V; marijuana’s been classified as a Schedule I substance.
Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are:
heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote
Consider that any number of opioids responsible for overdoses across the country are only rated Schedule II.
Schedule II drugs, substances, or chemicals are defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence. These drugs are also considered dangerous. Some examples of Schedule II drugs are:
Combination products with less than 15 milligrams of hydrocodone per dosage unit (Vicodin), cocaine, methamphetamine, methadone, hydromorphone (Dilaudid), meperidine (Demerol), oxycodone (OxyContin), fentanyl, Dexedrine, Adderall, and Ritalin
Marijuana’s classification has been formally disputed since at least 1972, yet it remains in Schedule I hinterland.
Cannabis’s Schedule I classification has constrained research. Despite state-level policy changes, Chen notes, “researchers throughout America are still bound by federal rules when it comes to cannabis research.” There’s little leeway to lose: “For the last half century, cannabis has been one of the most difficult compounds to study in the US,” per Chen. While the federal government Devotes $200 million to cannabis research annually, he tells me, “the vast majority ... goes towards harm and abuse research as opposed to therapeutic research.” Try as Sessions might, “there's not much more they could do to restrict cannabis research,” observes Chen. “It's already incredibly restricted!”
We’re not likely to see any federal progress for proponents of recreational marijuana legalization or even research under this administration, and in this Congress, but medical marijuana access is—as the budget amendment proves—a different matter.
The Compassionate Access, Research Expansion, and Respect States Act, or CARERS Act, wouldn’t change marijuana’s classification, or lighten restrictions on research, but it would exempt all parties involved in the production and use of medical marijuana in compliance with state law from the CSA.
Proponents hope that it’s maybe—just maybe—possible that Sessions’s efforts will backfire and spur Congress to pass CARERS.
While the bill's proponents know their proposal faces an uphill battle, they also say they believe the effort is quickly picking up steam, especially because many red states have now passed some form of legal weed. "I believe things are changing and they're changing fast," Sen. Gillibrand tells Rolling Stone. "I think we will get the support we need."
“I’m extremely optimistic and heartbroken at same time,” says Sherer. “The good news is that during this time states are still moving forward to improve their laws and the world isn’t standing still under this administration.”
In 2013, Americans for Safe Access created the International Medical Cannabis Patient Coalition, or IMCPC, with patient groups in 13 countries. IMCPC now has members in 45 countries, Sherer reports, and it’s proof that medical cannabis is moving forward worldwide in countries without barriers to research.
“All of the research that’s happening internationally—for example, the World Health Organization is now looking at the scheduling of cannabis—all these things are moving,” Sherer notes. “If this administration isn’t prepared to look at truths about cannabis, then hopefully a subsequent, more rational administration will have tools at their fingertips when they come in.”