BLOGGER HTML TEMPLATE AS OF 4/15/16 BEFORE REDIRECTION TO WORDPRESS New Amsterdam Psychedelic Law Blog: September 2014

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.

Tuesday, September 23, 2014

Cannabis legalization in New York: calm before the storm

New York is quiet for the moment but battle royale is coming in the next legislative session. People know that New York has a "medical marijuana" law but they don't know what it means. Few people know yet that there is an opportunity to create a fully legal cannabis market like what exists in Colorado but they will know soon and then things are going to get very interesting here.

Amendment of the medical use-only legislation

It is common knowledge among people who are paying attention that the medical use-only statute, the Compassionate Care Act (the "CCA"), that Governor Cuomo forced upon New York State in June, is a dysfunctional debacle. It is so obvious a disaster that the reformers are talking about amending it in the very next legislative session.

There are many problems with the CCA. Not all of them are Cuomo's doing, but most of them are. In the last two days of the legislative session in June he launched a savage surprise attack on the cannabis law reform movement, which by then prominently featured parents desperate to obtain lifesaving treatment for their children with severe epilepsy.  The purpose of a medical use statute should to be facilitate access to cannabis by sick people, i.e. to get government out of the way. Instead, the CCA in the form into which Cuomo contorted it is a set of disincentives for anyone to enter the market: among just a few examples are increased responsibilities for physicians combined with new criminal penalties, a requirement that physicians get additional licensing from the state before they can certify patients, a plainly absurd maximum of five cultivation licenses for the whole state, and the two most mind-blowing provisions - (i) the authority of the Governor to delay issuing licenses to applicants until the Health Commissioner and Police Superintendent certify that the program can be implemented safely - with no date certain by which the licenses must be issued - and (ii) the authority of the Governor to terminate all licenses immediately upon the recommendation of the Health Commissioner or Police Superintendent. This is not a statute that can create a viable medical use market. It's an illusion.

Emergency access - The current focus of certain activists is to force Cuomo to issue an executive order creating emergency access to cannabis for people who will not survive until the implementation process is completed. Following the death of several small children at the end of July, including one whose parents had advocated passage of the CCA, Cuomo requested that the acting Health Commissioner review the eighteen-month implementation timeline to determine whether it is possible to expedite the process of getting cannabis to children with epilepsy. In response, Assembly Member Richard Gottfried, the longstanding champion of rational cannabis policy here in New York, stated to the press that Cuomo himself had insisted on the removal of a provision for emergency access pending implementation from one of the last drafts of the legislation.

It makes sense that activists would want to focus on emergency access. However, there is a much bigger defect that must be corrected.

Advisory committee - The CCA as enacted omits what was the very best part of the proposed legislation: an advisory committee tasked with assisting the Health Commissioner in promulgating regulations. Creation of an advisory committee to assist in drafting regulations is a "best practice" in designing viable cannabis markets. There is no justification for eliminating the advisory committee from the statute.

The significance of the advisory committee is as follows. Assuming that the goal of passing a medical use statue is to get cannabis immediately into the bodies of sick people whom it helps (and not simply to provide a photo opportunity to a politician who has just rendered the legislation useless), then the most critical thing to do is to formulate good regulations as quickly as possible. The best thing to do is to create a highly transparent rulemaking process that gives an opportunity for all stakeholders to state their positions to each other as early as possible so that as many disputes can be resolved through negotiation as possible instead of through litigation. As drafted, the advisory committee would have consisted of a set of experts from different backgrounds, including law enforcement, substance abuse prevention, patient advocacy and clinicians, who would be able to create numerous other working groups. This is essentially the process followed in Colorado and Washington. (I was originally under the impression that such an advisory committee was also at work in Massachusetts; attorney Michael Cutler informed me that the MA Department of Public Health put together a "listening group" that included no patient advocates or clinicians and has "listened" to patients but not accepted their suggestions.) It's really something of a no-brainer. Of course you would want to bring together experts who have experience in the operation of legal cannabis markets in other jurisdictions and representatives of New York stakeholders so you can get the regulations as close to perfect as possible as early in the process as possible. Yet the advisory committee did not survive Cuomo's attack and so does not appear in the statute as enacted.

The fact that there is now a medical use statute in New York is nice but it means nothing until it is implemented and the key role of the advisory committee is to facilitate implementation.

The sponsors of the CCA are already talking about amending it in the coming legislative session. I propose that efforts to amend the CCA include the following:
- Restoring the advisory committee;
- Adding a provision that individual patients and caregivers can still assert medical necessity as a defense to prosecutions for cannabis law violations even if they are not licensed by the Department of Health;
- Eliminating the fixed list of conditions for which a patient can be certified to use cannabis and thereby restoring a physician's discretion to recommend cannabis in accordance with his/her professional medical opinion;
- Including an express statement as to the degree to which the CCA prevents ("preempts") local governments from regulating the cannabis market. A provision of this type should aid tremendously in minimizing litigation. 
Full legalization

The situation in New York is volatile. The CCA is untenable and the activists want vengeance. We can assume that one track in which reform efforts will proceed is amendment of the CCA, as discussed. However, the much more interesting track will be the effort to pass the Marihuana Regulation and Taxation Act ("MRTA"), the full legalization bill first introduced last year by Senator Liz Krueger and Assembly Member Crystal Peoples-Stokes.

Passage of the CCA did one thing if nothing else: the brutal power play that wrecked the bill showed how Cuomo operates. Last year, he began making ambiguous statements suggesting a new openness to permitting medical use of cannabis, refused to meet with reformers, and then blindsided them with impossible demands just days before the end of the session. His element of surprise is now gone. It's fair to assume that Cuomo and the Senate Republicans, having opposed the CCA, will scorch the earth to prevent passage of the MRTA. (It may be that as part of the price for defeating the MRTA they will need to allow reasonable amendments to the CCA.)  At the same time, it is a full legalization scheme like the MRTA, not the CCA, that has the potential to bring out mass support for reform.

This year new phenomena are appearing in New York City: well-attended regular monthly and weekly meetings of cannabis law reformers and Green Rush entrepreneurs in midtown Manhattan in groups such as the Marijuana Business Association, High NY, Open Cannabis and the Cannabis and Hemp Association, and an increasing number of investment/commercially-oriented events taking place here, such as last month's meeting of the National Cannabis Industry Association and the upcoming meeting of the International Cannabis Association. There is a political action committee called Legalize NY and an "Occupy Weed Street" has appeared calling on New York State to pass the MRTA and calling on NYC government to come out in favor of the MRTA.

Thus, there are three factors coming together as we head into the 2014-2015 legislative session: (a) the longstanding outrage over NYPD's practice of arresting black and brown young men for possession of cannabis in amounts that were decriminalized decades ago, (b) the obvious failure of the medical use law at Cuomo's hands and (c) the natural entrepreneurial inclination of the citizens of the capital of capitalism. I expect that these three factors are going to fuse by January 2015 and yield a new multifaceted movement reflecting the diversity of the City's population that will demand real change. After Massachusetts passed its medical use-only law, I said that the battle front had reached the outskirts of New York. It seems to me now that the battle is about to begin within the City. We're just in the last traces of the calm before the storm.