The key to understanding cannabis prohibition: an explanation of the legal arguments which the federal government uses to justify permanently prohibiting the medical use of cannabis appears in my article Madmen Rule You.

Thursday, June 18, 2015

Power to the People: cannabis legalization and the New York City Community Boards

Last night Manhattan Community Board Number 8 overwhelmingly voted to adopt a resolution concerning cannabis legalization. In essence it calls upon the state legislators who represent Community Board 8 in the Senate and Assembly to take action to cause a "serious discussion" of the Marijuana Regulation and Taxation Act ("MRTA"), i.e. the proposed full legalization statute introduced by Senator Liz Krueger and Assembly Member Crystal People-Stokes.

The vote was something like 29-5 (as related to me by someone else who was there); I started counting too late to record the exact numbers but I could tell from the consistent "yes" votes that it was a landslide.

I consider this event a very big deal. Adoption of this resolution means that part of a municipal government is calling upon part of the state government to hold a discussion of legalization. I'm not aware of anything like this happening before.

New York City Community Boards are very interesting institutions. They are the part of New York City government with the lowest barriers to entry for the public. The City is divided up into 59 Community Board districts. The Boards hold general monthly meetings that are open to the public at which members of the public can speak. There are also numerous committees, such as health, public safety, youth, economic development, and so on that meet as well and, at least according to my experience, are also open to the public.

One feature of the Community Boards is extremely relevant to cannabis legalization. Although different Community Boards may have different committees, there is one committee they have in common: the State Liquor Authority Committee ("SLAC").  A business seeking an initial liquor license in New York City or renewal of its license will first present its application to the local Community Board via the SLAC, which then presents its position to the full Board, which then presents its position on the application to the State Liquor Authority. Now, since its intent is to regulate cannabis like alcohol, the MRTA gives regulatory authority over cannabis to the State Liquor Authority, i.e. that administrative agency becomes a cannabis regulator in addition to being an alcohol regulator. (That is the basic mechanism of general legalization: regulating cannabis like alcohol means putting regulatory authority in the liquor control authority - or a new similar authority - as opposed to the Department of Health, which in New York under Governor Cuomo treats cannabis like a severe threat to public safety.) In practice, that means that persons seeking licenses to operate cannabis businesses will also need to present their applications to the Community Boards preliminary to their applications to the State Liquor Authority. Since the Community Boards will play a fundamental role in implementing cannabis market legalization at such time as the MRTA is enacted, Community Board buy-in is important and can, perhaps, best be cultivated by beginning a dialogue now with Community Boards as to how legalization would work.

Tuesday, June 16, 2015

January 5 will be Cannabis New Year's Day in New York

Yet again, it's been a long time since my last post, this time because I have been recovering from the permitting and general organizational work for the 2015 NYC Cannabis Parade and some event programming on the subject of New York City law and policy on cannabis in January and May, to be discussed more below.

A lot has happened in a very short time in New York City since this time last year, i.e. at this stage of the state legislative session. I intend to address those changes in greater detail in other posts.

The big news of the moment, of course, is the announcement of the forty-three applicants for the five cannabis cultivation and dispensing licenses to be awarded under the new "medical marijuana" law, the Compassionate Care Act (the "CCA"), followed by the possibility that there will be emergency access regulations. There is sure to be another swirl of media coverage when the next date for implementation comes around later this summer - announcement of the winners of the five licenses. New York State politics being what it is, and in light of the volatility of cannabis law reform issue within New York City, and in light of the growing media focus on the irrationality of the CCA as enacted under Cuomo's pressure, I believe that there will be a lot of interest in who gets those licenses. 

However, all of the foregoing leads only to the following. 

January 5, 2016 is going to be a big party in New York

Readers of this blog know that I believe that the CCA is a debacle that should be abandoned entirely in favor of general legalization (regulated like alcohol, as in Colorado) as soon as possible. There is no objective reason why the State of New York cannot have full legalization immediately - there is legislation (the "Marijuana Regulation and Taxation Act" or the "MRTA") pending in both houses that would put cannabis under the control of the State Liquor Authority, instead of the Department of Health.

Which part of the bureaucracy regulates is, of course, a crucial consideration: up until July 2014, the police alone regulated the cannabis market (since it was completely illegal) and since July 2014 there has been the promise that the Department of Health will regulate a small portion of the cannabis market under severely restricted conditions. There was a time when transferring regulatory authority from the police to doctors was a revolutionary step forward. That is no longer the case.

The Cuomo administration has taken credit for enactment of a medical marijuana law with a heart-warming photo op in July 2014 and a lot of platitudes from the Department of Health, along with a bunch of excuses as to why patients cannot have immediate access. On paper, yes, a medical marijuana law was enacted in his term as governor. My understanding from the beginning, like that of Debra Borchardt writing for Forbes, has been that the CCA was dead-on-arrival: what had been a fair though still conservative bill was mutilated so badly by the Governor in May-June 2014 that it scarcely qualifies as a "medical marijuana" law and cannot possibly create a viable market that offers any advantage over the remainder of the market, which will remain illegal.

There is a lot of interest now in New York in the economic potential of a legal cannabis market, especially in the financially-depressed upstate counties, whose press has been covering the issue much more closely than the downstate press. A lot of people put up a lot of money to compete for the five licenses - it's a logical guess that investors are interested. Many people are ready for the creation of a functional legal market.

Therefore, January 5, 2016 is a big date. That's the date on which the medical market created by the CCA is supposed to start functioning. (Don't forget, though, the part about how the beginning of operations can be delayed indefinitely until the Executive Branch says it's a go; also don't forget that the Governor can terminate the program at will at any time.)

My read of New York is that if the market is not functioning in a meaningful way on January 5, 2016 or very shortly thereafter, people are going to know that (a) they got ripped off and (b) there is a much better option - general legalization, which is immediately within their grasp. When people wake up on January 5 either they will rejoice because the medical cannabis market is functioning well under the CCA or they will rejoice because everyone will know that the time for a "medical model" in New York has come and gone and it is to design and implement general legalization. The media and even advocates who characterized enactment of the CCA as a victory are focusing on the profound, fatal defects in the statute and I expect that when January 5 comes with a sad excuse for a medical cannabis market they will tell it like it is. Many parents of children with severe epilepsy have not been kind in their reaction to the CCA. I'm looking forward to January 5 as the day on which Cuomo's jig is up. It would be a lovely irony if the extent of Cuomo's savaging of progressive drug law reform and his administration's disingenuousness and double-speak weigh significantly in pulling Cuomo into the wave of corruption investigations taking place here.

"Regulating Marijuana: What New York Can Learn from Other States" 

Readers of this blog may be interested in the audio recording of the program "Regulating Marijuana: What New York Can Learn from Other States" that took place at the New York City Bar Association on May 21, focusing on inconsistencies between federal, state, and local cannabis law

The event featured New York State Senator Liz Krueger; New York City Council Member Mark Levine,; Malik Burnett, M.D., Policy Manager, Drug Policy Alliance; William J. Caruso, Steering Committee member, New Jersey United for Marijuana Reform; Robert Raich, Esq.; Rachelle Yeung, Government Affairs Manager,Vicente Sederberg LLC.  Eric Sterling, President of the Criminal Justice Policy Foundation, was the moderator. (The official program appears here.)

This program is a continuation of the examination that began with the January 28 program "The Future of Marijuana in New York City."

Thursday, February 12, 2015

The future of cannabis law and policy in New York City

It's been a long time since my last post, in no small part because it took a few months to put together a forum that I co-moderated on January 28 at the New York City Bar Association on "The Future of Marijuana Law in New York City." The podcast is available through the Bar Association's website. (Click here to go directly to the audio link.)

The panel consisted City Council Members Stephen Levin and Jumaane Williams, Dean of Touro Law Center and Professor of Law Patricia Salkin, and Assistant District Attorney Nitin Savur from the Office of New York County District Attorney Cyrus Vance.

I believe that the event succeeded in opening a discussion on the subject of what the City of New York has done and can do to design its own optimal cannabis policy.  

Wednesday, October 8, 2014

The Utica Observer-Dispatch opens fire on Cuomo (and, by extension, recalcitrant state legislators)

Game on: the Utica Observer-Dispatch published an editorial agreeing with upstate Assembly Member Brindisi's statement that the state legislature should hold a special session to enact legislation to grant children with epilepsy immediate access to cannabis.

The editorial board understands the situation. I quote (emphasis added):
Come on. This isn’t rocket science.
“I’ve heard from parents who have children suffering from seizure activity and there is a form of treatment out there, which they don’t have access to because government bureaucracy is standing in the way,” Brindisi said. “We should be moving heaven and earth to try and get this done so these parents and children don’t have to suffer.”
Politicians claim they’re trying. That’s just not good enough. Bulldoze the bureaucracy.
Try harder.
If there is really is a therapeutic use for cannabis then the appropriate response for the government is to declare that the lack of access to quality-assured cannabis is a public health emergency. However, this is a public health emergency caused by the government.   

Tuesday, September 30, 2014

Cannabis war in the Empire State: transparency is victory

The newsmedia is abuzz with reports that both of New York's US senators have requested that the Department of Justice favor Cuomo's request to purchase high-CBD products from other states for use by children with severe epilepsy until New York's program is operational. The New York Daily News rightly reported criticism from advocates that the request for federal permission to move cannabis in interstate commerce is a long shot and that Cuomo could just license someone to manufacture in New York State now.

The stories coming out now corroborate my statement yesterday that Cuomo appears to have chosen the most complicated option for getting cannabis immediately to patients.  The "problem" is not very difficult to solve:

A. Let patients and their caregivers cultivate cannabis. That was the intention of the original "medical marijuana" laws of the 1990s and 2000s - allow patients to grow and use cannabis without fear of prosecution. It's that easy. Cannabis grows out of the ground with little difficulty.

B. For patients who need or want a low-THC/high-CBD strain allow specialists with the necessary experience to open up shop here and begin manufacturing immediately.

All of the "obstacles" that exist are of human invention and can be resolved easily if Cuomo wishes to do so. However, the record of Cuomo's conduct as to cannabis law reform is a consistent pattern of sabotage dating back to last December when instead of engaging in an honest and open negotiation over the provisions of the proposed Compassionate Care Act he proposed an obviously ludicrous alternative (reimplementing the defunct and hopelessly obsolete Oliveiri research program). [fn]

I believe that Cuomo's goal is to prevent implementation of a legal cannabis market (medical or otherwise) as long as possible and by any means necessary.

I have discussed at length on this blog how the New York medical cannabis legislation sickened and died in the course of becoming law. None of what is happening now should be any surprise.

Indulge me with a proposal for starting at a more productive point.
New York State does not need a waiver from the United States government for anything.
For immediate purposes, it does not need anything more complicated than (a) a directive from the Governor that state administrative agencies are to take no punitive criminal or civil action against New York citizens for cultivating and/or possessing cannabis as patients or caregivers for patients and (b) issuance of regulations yesterday - if not three months ago - governing emergency access, pending full implementation of the CCA, to specialized strains of cannabis (e.g. high-CBD/low-THC) that cannot be easily cultivated by amateurs, including expedited procedures for applying for a license.

Solving the problem of emergency access to cannabis is not really very complicated. In fact, it's a decoy issue...a non-issue. What the voters and taxpayers of New York State really need is transparency.

Cuomo's modus operandi from the beginning has been subterfuge and concealment. As discussed above, instead of engaging in an open and conversation with the bill sponsors in 2013 and 2014, he made vague statements through his spokesman Larry Schwartz suggesting that he would support a medical marijuana program that "made sense." He kept silent the entire time that Senator Savino struggled to force the CCA out of the Health Committee in which Republicans had pinned down the bill for years and into the full Senate for a vote. Then he attacked and crushed the cannabis law reform movement - a collection of sick people, including young children, seeking legal, quality-controlled access to relief. Having reduced the CCA to a useless pile of rubble, in part by eliminating the advisory committee that would have ensured that the new system would have the most patient-, industry- and local government-friendly rules, he has proceeded to keep the entire program a mystery.

People who want to see implementation of a successful medical cannabis regulatory system in New York need to know the following:
- who in the Department of Health has been tasked with creating the office that will regulate cannabis
- what budget has been allocated to the task of creating the office
- who in DOH has been tasked with drafting regulations
- what resources does DOH plan to consult when drafting regulations
- does DOH intend to hold public hearings in the course of preparing the first full draft of regulations and if not why not
- what is the date certain by which DOH will issue its emergency access regulations
- what is the date certain by which DOH will issue its first draft of the full regulations
The optimal form of regulation is one conducted in the open, transparently, with maximum stakeholder participation and maximum regulatory deference to the needs of the stakeholders and the experience of other states. To date, the Executive Branch has been acting in a manner commensurate with this state's official designation as the "Empire State." The faster and farther the Empire is ejected from the cannabis market the sooner there will be a well-functioning legal medical cannabis market in New York.

FN. This tactic is equivalent to a tactic that NJ Governor Christie used in 2011 as part of his strategy of delaying operation of a medical cannabis market there: unilaterally deciding that the already-enacted statute should be changed so that only Rutgers University - an entity dependent on federal funds - would cultivate cannabis. Rutgers refused. It wasn't a serious proposal anyway, just a delay tactic. Likewise, Cuomo's outreach to the federal government is just a delay tactic.

Monday, September 29, 2014

Cuomo plunges his sword into the mainline of state-federal cannabis conflicts and sets the President on a collision course with the DEA

The Buffalo News reported that the Cuomo administration has requested that the federal government grant a "waiver" to allow the state to import CBD-high cannabis strains from other states for use by children with severe epilepsy. (I note that the article says that it obtained copies of the letter; I would love to see them.)

If so, this development is quite incredible.  Of all the possible solutions Cuomo could pick, asking for a waiver from the federal government seems the most complicated and least likely to yield prompt results. The state legalization laws are all premised to some extent on the idea that states should be able to determine for themselves whether to allow the use of cannabis for medical purposes within their borders, presumably under the Tenth Amendment.  However, instead of allowing cannabis cultivation by individual patients or caregivers or allowing manufacturers from other states with relevant experience in manufacturing high-CBD strains to open up here on an expedited basis, New York is asking the federal government to allow it to obtain cannabis from across state lines. The federal government's authority to regulate interstate commerce is explicitly stated in the Constitution and is the exact Constitutional basis for federal drug laws. In other words, Cuomo has just thrust his sword directly into the very heart of the conflict between state and federal law by asking the federal government to recognize that cannabis has a currently accepted medical use in treatment in the United States - which the United States Drug Enforcement Administration has refused to do for forty years.

What would be the basis for requesting that the DEA allow a cannabis manufacturer located in Colorado, Washington, Oregon or California to send cannabis flower, an extract or a cannabis-infused product across state lines?  Only because the purchaser seeks to use the cannabis/cannabis product for medicinal purposes, I must assume. What then does the DEA say? The DEA steadfastly maintains that cannabis has no medical use, no matter what the states say, so its response must be to deny the request for a permit interstate traffic in cannabis. It seems to me impossible that the DEA could (a) permit cannabis to travel in interstate commerce for the intended purpose of being used as a medical treatment but also (b) maintain that cannabis has no medical use and must remain in Schedule I.

(Not having seen the letters I assume that New York State is the proposed purchaser. Perhaps if a state government itself wishes to purchase cannabis from a source outside of the state the DEA must apply some different standard to the application - e.g. perhaps the State need not justify its acquisition of cannabis. I don't know.)

Cuomo's application for permission to import cannabis will likely require that the federal government restate its basis for denying that cannabis has any use in medical treatment - or acknowledge that it must defer to a state government's determination that cannabis has a medical use and grant permission. The last attempt to challenge the DEA's classification of cannabis ended in failure but Cuomo has potentially reopened this issue from a different direction.

In his second term Obama has made it abundantly clear that he is ready to let cannabis legalization go forward if given the political cover. The fact that technically the DEA Administrator and other agency employees work for the President of the United States is not really significant - the DEA is essentially a domestic intelligence agency that answers to no one. If the President uses this opportunity to order the DEA to stand aside and allow cannabis to travel in interstate commerce it will be the most radical evolution in the history of United States drug control to date. If the DEA denies the application and the President doesn't countermand it there may be a new opportunity to challenge the DEA's position in Court without the need to bring a new petition to reschedule cannabis.

Wednesday, September 24, 2014

Regime change in the government of consciousness

Further to my post yesterday about the remaining moments before the storm hits New York City, I had a flash of understanding this morning about what's happening.

The entire conceptual foundation of drug control, which is to say mind control (which is to say controlling/restricting the scope of the thoughts and perceptions a human can experience), is wrong, at least as applied to cannabis. The conceptual foundation of the dominant form of drug control is opiate regulation. That is true simply as an empirical historical matter, I believe, but also as a matter of thought structure.

The newest model of cannabis market regulation is what we saw in fine form in New Jersey and what is being reprised in New York: instead of explicit statutory prohibition it's death by over-regulation. In NJ, the statute had already been enacted when Christie came in so when he killed the market it was infanticide. In NY, Cuomo was able to kill the market prior to birth so it was abortion.

It is a model of a substance that is, yes of course, crucial to saving life and alleviating ruinous discomfort - but it is so dangerous that there must be an artificial market of scarcity. That's how opiate regulation works. Opiates were a miraculous appearance during the American Civil War, allowing Union soldiers to have their wounded limbs amputated (to avoid gangrene) while they were under the influence of something more effective than the Bourbon whiskey available to the Confederates. However, you can also die from too much opiates. You can reach the "lethal dose," i.e. the measurement of the dose of opiate that will kill a person or animal by suppressing its cardiovascular functions. And when people start taking it, they can't stop. It's a nightmare image. The consequence is lockdown: it is necessary to keep opiates literally behind lock and key, behind multiple levels of gatekeepers under the watch of a specialized police force.

My understanding is that cannabis has no "lethal dose." It can't kill you. It got caught up in the dragnet in the decades when the federal government first began prohibiting psychoactive substances, first opiates then alcohol. Unlike both opiates and alcohol, cannabis prohibition is absolute: no one may ever use cannabis legally under federal law for any purpose [fn].

We live in a narcocracy, a government of the drug police, whose guiding ideology and methodology date back no less than one hundred years to 1914, the year in which the US passed its first federal psychoactive "drug" law, the Harrison Narcotics Act that criminally-controlled opiates.  Cannabis is the cutting edge of a different model of psychoactive substances. If you will indulge me, cannabis is actually a low-intensity psychedelic (hence the name of this blog).   Opiates are well-integrated into our society. They are the pain relief of choice. There is a long history of regulation by European authorities - indeed wars were fought over its supply dating back to the 1800s. However, (a) the psychedelic model differs from the opiate model and (b) the integration of psychedelics into industrialized, post-Enlightenment "Western" civilization stopped no later than 1970. (Rick Doblin has dedicated almost thirty years of his life to resurrecting it.) The current dominant paradigm is characterized by the artificially-induced absence of psychedelic therapy. In other words, we are in a "pre-psychedelic" stage of civilization.

New York just passed a cannabis "legalization" statute that has no relationship whatsoever to the guiding principle of medical cannabis law, which first appeared in caselaw from the 1970s-1990s in which DC and then state criminal court judges recognized medical necessity as an affirmative defense to criminal prosecution on cannabis-possession and -cultivation charges. In a basic sense, all that Californian voters did in 1996 when they passed Proposition 215 was to make that defense part of the statutory law of their state. The CCA turns that idea on its head: it extends the right to cultivate to corporations and gives nothing to patients until such time as the state, which operates in an opiate-control mentality, gets it together to pass some regulations - with a minimum of participation by patients (we don't need an advisory committee, thank you) - that will allow them, in a year and a half, maybe, to apply for the right to buy cannabis, which they and their designated caregivers could grow easily enough themselves, perhaps with some help from professionals, from a handful of stores operated by huge corporate interests at prices set by the state.

All indications are that a cannabis legalization statute, the MRTA, will be introduced in the New York state legislature again this coming session. Cannabis legalization is part of a regime change, a supplanting of the narcocracy. The bureaucracy that comes next should be rooted in local community government to the greatest extent possible. Because this is regime change in the government of consciousness, it is necessary to understand it deeply. The current discourse in the media is insufficient because it does not address why this area of the law is so subtle and therefore why what Cuomo did to the CCA [fn 2] and likely will do in response to the MRTA is so wrong.

Some people don't like regime change. Some people do.

FN 1. Except for the four surviving members of the federal government's Compassionate IND program, to whom the federal government provides cannabis directly for medical purposes (while maintaining that it has no accepted medical use in treatment in the United States). 

FN2.  In fairness to Cuomo, the sponsors of the CCA ceded the individual right to cultivate several years ago, so the bill was already badly-compromised when it reached him in June. He just finished it off.