Cannabis Legalization Could Make New Strides in 2023

The effort to reform the nation’s cannabis laws made new strides in 2022 with the passage of recreational marijuana legalization ballot measures in Maryland and Missouri in the November midterm elections. Success was not universal, however, as similar propositions on the ballot in Arkansas, North Dakota and South Dakota failed to gain the approval of voters. 

Looking at 2023, new milestones have already been achieved this year, with Connecticut launching regulated retail sales of adult-use cannabis on January 10, a move that was preceded by the expungement of nearly 43,000 marijuana-related convictions in the state at the dawn of the new year. And as we head further into 2023, several states across the country are likely to make new ground in the struggle to end cannabis prohibition.

A New Focus

Brian Vicente, a founding partner at the cannabis and psychedelics law firm, Vicente Sederberg LLP, says that despite spending millions of dollars on lobbying federal lawmakers in 2022, the efforts of cannabis activists were unable to result in the passage of any meaningful marijuana policy reform at the next level. With the change in the political climate in Washington, D.C., efforts this year will take a new focus.

“With Republicans taking over the House, any federal reform in the two years seems exceedingly unlikely. Fortunately, movement leaders have begun coalescing around a strategy to cut back on federal lobbying and instead push resources toward state-level reform,” Vicente said in an email. “These efforts are aiming to flip as many as 10 states to adult-use in just three years, which would not only open new markets for consumers, but also create intense pressure on Congress to pass legislation aligning federal law with the thirty-odd states where cannabis is legal for adults.”

As the new year begins, more than a half-dozen states are likely to consider legislation to reform their marijuana laws, with most activity centering in the South and Midwest regions. Outside those broad areas, Hawaii could be poised to make progress on the issue with a new governor at the helm, Democrat Josh Green, who included support for expanding the state’s current legalization of medical marijuana to include adult-use cannabis as part of his campaign for office last year. On January 11, Democratic state Rep. Jeanné Kapela announced her plans to introduce a recreational marijuana legalization bill, saying, “this year, we stand on the precipice of history.”

“We now have a roadmap for legalizing recreational cannabis in our islands,” Kapela said in a statement quoted by Marijuana Moment. “Legalizing cannabis is not just a matter of money, it is a matter of moralities.”

Snowden Stieber, a regulatory analyst with cannabis compliance technology firm Simplifya, notes that the bill has some hurdles to clear before it can get to Green’s desk, however.

“The Hawaii Senate President, Ron Kouchi, has already come out with statements expressing skepticism on any fast movement for cannabis legalization, and many elected officials are still waiting on the upcoming report from the Dual Use of Cannabis Task Force to guide their votes in the new year,” he said in an email. “While it is of course possible that the task force recommends full legalization, prior experience in other states would suggest that legislators will take their time with any report’s findings and that a sudden move toward legalization is unlikely.”

The South

Vicente believes three states in the South—Kentucky, North Carolina and South Carolina—could pass legislation to legalize medical marijuana this year. With the nearby states of Louisiana, Mississippi, Alabama, Georgia and Florida already demonstrating that a regulated marijuana industry can provide jobs and tax revenue, other states in the region are likely not far behind.

South Carolina, where Rep. Nancy Mace has become one of the few Republicans in Congress advocating for cannabis policy reform at the national level, is one of the few remaining states that still hasn’t legalized marijuana in any form. But reform is popular with the state’s residents, with a Winthrop University poll conducted before last year’s midterm elections showing that more than 75% of voters support the legalization of medical cannabis. This year, lawmakers from both sides of the aisle have pre-filed separate medical marijuana legalization bills for the 2023 legislative session. But Simplifya regulatory analyst Justin Bedford isn’t optimistic about the fate of the legislation.

“Though these may seem like promising developments, history suggests that South Carolina still has a long way to go before any form of commercial legalization occurs,” he wrote in an email. “All 14 cannabis-related bills that were deliberated during the 2022 legislative session failed to pass, with most dying in the early stages of development. Nothing has changed in the state’s sociopolitical environment that would suggest anything will be different this year.”

In North Carolina, the state Senate passed a bill to legalize medical marijuana in June 2022, but the House of Representatives declined to take up the legislation. Brian Fitzpatrick, chairman and CEO of cannabis software developer Qredible Inc, notes that public support for medical marijuana legalization is strong, and if a bill makes it to the desk of Democratic Gov. Roy Cooper, he’s likely to sign it into law.

“A poll carried out in January 2021 by Elon University found that 73% of North Carolinians supported medical cannabis,” Fitzpatrick said in an email. “A subsequent poll in May 2022 showed that support had increased to 82% across bipartisan lines. I believe that the governor is aware of this and will fully support the legalization of a medical cannabis bill in 2023.”

In Kentucky, where an executive order from Democratic Gov. Andy Beshear decriminalizing medical marijuana went into effect on New Year’s Day, a bill to legalize both medical and recreational cannabis was unveiled by lawmakers on January 7. The measure, Senate Bill 51, would legalize and regulate the “possession, cultivation, production, processing, packaging, transportation, testing, marketing, sale and use of medical cannabis and adult-use cannabis,” according to a report from the online resource Business Insurance. With Kentucky being one of the nation’s largest hemp producers, industry insiders believe the legislation has a good chance of success this year.

The Midwest and Surrounding States

Several states in the Midwest could make advancements in cannabis policy reform in 2023. In Ohio, voters could get the chance to vote on a cannabis legalization measure championed by the Coalition to Regulate Marijuana Like Alcohol, which was kept off the ballot for the November midterm election after legal challenges. Last week, Secretary of State Frank LaRose reintroduced the proposal, which would legalize marijuana for adults 21 and older and levy a 10% tax on commercial cannabis products. If the state legislature doesn’t approve the measure within four months, the coalition can collect signatures to put the proposal before the votes in the fall. Trent Woloveck, chief commercial director of cannabis commerce platform Jushi, believes legalization efforts have an even chance of success in Ohio this year.

“It is very unlikely that the legislature acts on the initiated stature in the next four months, but reasonably likely that the Coalition will be able to gather the additional required signatures for the effort to make the ballot,” he says. “While polling would suggest a ballot initiative legalizing cannabis would pass, the Senate president and other legislators disagree. And, even if voters approved an initiated statute, the legislature would have unrestricted authority to repeal or materially revise legalization.”

Like Hawaii, Pennsylvania has a new governor, Democrat Josh Shapiro, who has expressed support for legalizing recreational marijuana. The issue has been stymied in years past by Republican lawmakers, but a new Democratic majority in the state House of Representatives may help the chances at success.

“While we’ve heard some interest from both sides of the aisle in previous years, conversations about legalization seem to be happening among a much larger group of legislators with increased frequency and specificity,” Woloveck says. “It also sounds like many legislators, including several previously unwilling to engage in any cannabis-related discussions, now acknowledge something has to be done about the illicit market and to stop revenue from flowing to neighboring states where people can buy legal, regulated cannabis for non-medical purposes.”

After legalizing low-potency THC edibles last year, cannabis policy experts say Minnesota could be the most likely state to legalize recreational marijuana in 2023. The state’s Democratic-Farmer-Labor Party (DFL) is now in charge of both the legislative and executive branches of government, and party leaders including Gov. Tim Walz have said that cannabis legalization will be a priority for 2023. Last Wednesday, a bill sponsored by DFL lawmakers Rep. Zack Stephenson and Sen. Lindsey Port received the approval of a legislative committee, with more hearings on the measure to come.

In Oklahoma, where 10% of adults hold cards to participate in the state’s liberal medical marijuana program, voters will decide on a ballot measure to legalize recreational cannabis in March. If passed, State Question 820 would legalize marijuana for adults 21 and older. The measure also contains provisions to expunge past convictions for marijuana-related offenses. Proponents of the measure had hoped it would appear before voters during the November midterm elections, but a delay in certifying petition signatures and legal challenges from opponents prevented its inclusion on the ballot.

Lawmakers in other states including Georgia and Delaware could also take up measures to legalize marijuana this year, although the prospects for success in 2023 seem unlikely given the political climate in those states. But progress in cannabis policy will probably continue if the trend seen over the last decade goes on.

“Since 2012, when Colorado and Washington became the first states to legalize cannabis, we’ve seen an average of two states per year pass adult-use laws,” Vicente notes. “I predict that 2023 will continue this trend with both Oklahoma and Minnesota looking very likely to legalize.”

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Congressional Panel Holds Key Cannabis Legalization Hearing

A US House of Representatives subcommittee last week held a hearing to explore the legalization of marijuana with testimony from a slate of witnesses who support ending the federal prohibition on cannabis. The congressional cannabis hearing, which included discussion on topics including the racial disparities in the criminal justice system, was held by the House Oversight and Reform Subcommittee on Civil Rights and Civil Liberties on November 15. Subcommittee chair Rep. Jamie Raskin, a Democrat from Maryland, began the hearing with a bold statement on the path he believes the nation should take to reform cannabis policy.

“Cannabis must be decriminalized at the federal level as a matter of basic justice in the country and, I would say, to vindicate the anti-prohibition principle that’s in our Constitution,” Raskin said in his opening statement. “We tried prohibition of liquor, and all it did was lead to the growth of organized crime in the country. The war against marijuana has ruined so many lives in our country. We can do a lot better by treating all of these as public health questions and regulatory questions rather than questions of crime and putting people behind bars.”

Rep. Nancy Mace of South Carolina, the ranking Republican member of the subcommittee, is the sponsor of the States Reform Act, a bill that would legalize and tax marijuana at the federal level. At last week’s hearing, she shared her personal experience with the therapeutic benefits of cannabis in an address to the panel. 

“It cut my anxiety,” the congresswoman said, as quoted by Marijuana Moment. “I was able to sleep better. And I stayed alive. If I can make it, anybody can, and this plant literally saved my life. I don’t know where I’d be today had I not had that kind of experience that I can share with millions of Americans today. The only place that cannabis is really controversial today is here on the Capitol.”

An 11-page memo published before the congressional cannabis hearing noted that the meeting would be a bipartisan examination of the potential benefits of federal cannabis decriminalization, including criminal justice reform, access to therapeutic cannabis for military veterans and increased access to the banking industry for regulated cannabis businesses.

Hearing Witnesses Call For Cannabis Legalization

The hearing, dubbed “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level,” included testimony from a group of witnesses who support ending marijuana prohibition, including politicians, cannabis policy reform activists and cannabis industry representatives. Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), called on Congress to respect the will of the people as expressed through the legalization of cannabis at the state level.

“Our nation’s federalist principles demand that the federal government respects voters’ decisions to legalize cannabis,” Armentano testified to the committee. “At a time of record public support for legalization and when the majority of states regulate cannabis use, it makes no sense from a political, fiscal or cultural perspective for Congress to try to put this genie back in the bottle or to continue to place its collective head in the sand. It’s time for the federal government to end its nearly century-long experiment with cannabis prohibition.”

Shane Pennington, an attorney with the cannabis and psychedelics law firm Vicente Sederberg LLP, said that the hearing is evidence that the movement to reform cannabis policy is making progress at the federal level.

“It’s encouraging to know that many lawmakers appreciate the absurdity and manifest injustice of federal cannabis prohibition,” Pennington wrote in an email to Cannabis Now. “Even better, they appear to understand that establishing a fair and effective cannabis regulatory regime at the federal level will require them to listen and learn from state regulators who are running effective regimes already and the communities who have suffered most from the War on Drugs.” 

The recent congressional cannabis hearing marks a new step in the efforts to kickstart the nation’s cannabis policy reform in the House of Representatives, which has taken the lead on ending marijuana prohibition in the US Congress. The House has passed the Secure and Fair Enforcement (SAFE) Banking Act to give regulated cannabis businesses access to the banking system six times, either as standalone legislation or as part of a broader bill. The chamber has also twice passed the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, legislation to remove cannabis from the nation’s list of controlled substances, most recently in April 2022, but the Senate has failed to act on the measures. However, cannabis policy reform is likely to become less of a priority next year when Republicans take control of the House after winning a slight majority of the chamber in the recent midterm elections.

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Sen. Booker Open to Hybrid Cannabis Bill

Democratic Sen. Cory Booker said last week that he is “open to compromises” on federal cannabis policy reform, indicating he would support a hybrid bill pairing social equity provisions with legislation to provide traditional banking services for legal cannabis businesses. The suggestion of a compromise follows previous assertions from Booker that he would block the Secure and Fair Enforcement (SAFE) Banking Act from passing before legislation to decriminalize marijuana and address harms caused by the War on Drugs is signed into law.

The junior senator from New Jersey said in an interview with NJ Spotlight Newsposted online on July 29 that SAFE Banking is “very important” legislation, and that he is a “supporter of that.” He added, however, that he wants the bill to be “balanced with us having some restorative justice as well.” 

Booker’s talk of compromise legislation came only days after he and Senate Majority Chuck Schumer of New York and Senate Finance Committee chair Ron Wyden of Oregon, both fellow Democrats, introduced the Cannabis Administration and Opportunity Act (CAOA), a bill to legalize cannabis at the federal level. Under the legislation, marijuana would be removed from the nation’s list of banned drugs under the Controlled Substances Act, leaving the states to set their cannabis regulatory policies. The comprehensive also includes provisions to tax regulated cannabis businesses, with revenue dedicated to funding economic development and restorative justice programs.

Booker told NJ Spotlight News that the CAOA is a “gold standard bill” for national marijuana legalization. But he added that he is also receptive to a more measured pace of cannabis policy reform.

“I’m open to compromises that are going to achieve my goals of safety, of investment opportunities that are equal for business communities and, finally, to make sure we do something for all of these people right now who have marijuana possession charges that deserve some relief from the impact that it’s having on their economic and family wellbeing,” Booker said.

Both Schumer and Booker have acknowledged that they might not have the 60 votes necessary to get the comprehensive CAOA passed in the Senate, where it will be a hard sell with many conservative Republican senators and some moderate Democrats. As an alternative, the majority leader has reportedly been holding bipartisan talks with members of both houses of Congress on an incremental approach to reform, including the banking bill that could get enough support in the Senate to pass this year. 

Booker’s Reservations About Cannabis Banking Bill

Booker’s suggestion of a compromise contrasts with his prior opposition to the SAFE Banking Act. When the legislation was introduced in the Senate nearly three years ago, Booker noted that the bill did not include social equity provisions to address the harm caused by generations of cannabis prohibition and the War on Drugs.

“As the SAFE Banking Act now heads to the Senate, we can and we must do more. With this legislation, we can both address the pressing need for cannabis businesses to access financial institutions and provide real restorative justice for those most harmed by the failed War on Drugs,” Booker said in a September 2019 statement. “It’s simply not enough as it stands without reinvestment in communities most hurt by the failed drug war and while people of color are left to languish in federal prisons for marijuana-related offenses. Low-income Americans and communities of color have been devastated by the War on Drugs—we should be repairing the damage inflicted on these communities. The end we seek is not just legalization or access to financial institutions, it’s justice.”

Booker reiterated his opposition to passing cannabis banking legislation without social equity provisions in July 2021 when the trio of Democratic senators released what was characterized as a discussion draft of the CAOA.  The senator said that passing the SAFE Banking Act alone would take pressure off lawmakers to pass broader reforms.

“I will lay myself down to do everything I can to stop an easy banking bill that’s going to allow all these corporations to make a lot more money off of this instead of focusing on restorative justice aspects,” the senator said at the time. 

Booker clarified the comments the following week, saying, “Don’t get me wrong, I support the SAFE Banking Act. I think it’s a phenomenal bill,” he said. “For me, a good bipartisan bill like the banking bill is a necessary sweetener to get people to move along on the equitable justice elements that are really critical.”

After signaling that he is open to a compromise, Booker said the deal would likely include the banking bill with legislation to expunge federal marijuana convictions.

“It would have to be a SAFE Banking Plus bill” to receive his support for comprehensive legislation like the CAOA, Booker told Cheddar News on August 3. “I know there’s a lot of small businesses that are really suffering right now. They can’t access the financial industry to get loans for it. They can’t find a way to get out of using enormous sums of cash, which end up making them targets for criminal activity.”

“I know the urgency for SAFE Banking for the little woman or little guy in terms of getting this done,” he added. “But I also know that if we get that done—which is being pushed by large corporations and other large financial interests—we will leave behind the millions of Americans who had themselves or their families been affected by these low-level drug charges.”

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President Biden ‘Working On’ Releasing Cannabis Prisoners

President Joseph Biden recently said that his administration is “working on” his goal to release federal marijuana prisoners, although he failed to provide details or set a timeline to enact a cannabis clemency plan for those behind bars for marijuana convictions. Biden made the comments after Marine 1, the presidential helicopter, landed on the south lawn of the White House on July 16. During brief remarks to the press, a reporter asked the president if he’d be honoring his campaign pledge to release all the marijuana inmates in prison?

Biden replied that he doesn’t think that “anyone should be in prison for the use of marijuana.  We’re working on the Crime Bill now,” according to an official White House transcript of the exchange. It’s unclear which legislation the president was referring to, however.

While campaigning for the presidency in 2020, Biden said that “anyone who has a [marijuana] record should be let out of jail” and pledged to “broadly use his clemency power for certain non-violent and drug crimes.” Biden has also said that while he doesn’t plan to end the federal prohibition on recreational marijuana, he’d support the decriminalization of possession of small amounts of cannabis.

Only two days earlier, just before Biden reiterated his cannabis policy, the cannabis clemency advocacy group The Weldon Project and the National Cannabis Roundtable announced the launch of the Cannabis Clemency Campaign, an initiative that will encourage the Biden Administration and Congress to advance policies that would grant cannabis clemency to qualifying individuals who have been convicted on federal marijuana charges.

“Through cannabis clemency, President Biden has an opportunity to deliver justice for the thousands of Americans who have been impacted by federal marijuana prohibition and punitive sentencing practices,” said Weldon Angelos, co-founder of organization. “This would fulfill one of President Biden’s campaign pledges and send a powerful message about this Administration’s dedication to criminal justice reform. I’m proud to formally launch this campaign alongside the National Cannabis Roundtable and look forward to working together to redress the harm done by federal marijuana prohibition.”

Pardons Issued in April

In April 2022, the president issued three pardons and commuted the sentences of 78 nonviolent drug offenders, although only nine cases were related to cannabis, according to a report from Marijuana Moment. But so far, the administration has yet to announce a comprehensive plan to release cannabis prisoners. Ellen Mellody, vice president at cannabis public relations agency Mattio Communications, is a former spokesperson for the 2008 Obama-Biden campaign. She said that the president is “dropping the ball” on the issue of cannabis clemency.

“It’s easy to get caught up in the politics of the issue and forget that what we are really ‘debating’ is a policy that is based on lies,” Mellody wrote in an email to Cannabis Now.

“The American people continue to be far ahead of President Biden and their elected officials when it comes to supporting the overturning of outdated policies. However, Biden hasn’t put his full weight behind expungement, legalization or even doing the very basics such as bringing back the Cole memo,” a federal policy that protected medical marijuana companies operating legally under state law from interference by federal law enforcement agencies. In 2018, the Cole memo was rescinded by then-Attorney General Jeff Sessions.

“It’s extremely rare to have 68% of Americans agree on a policy, but today, that’s how many Americans support legalization in the US. Yet, Biden and other elected officials on both sides of the aisle have often ignored or laughed off their constituents largely due to education gaps about what these policies mean for Americans and their families,” Mellody said. “What we’ve found is that the more educated the elected official is on cannabis, the more they see how cruel criminal cannabis prohibition is. While this step is better than no action at all, Biden should start asking hard questions and stand up for the rights of Americans. If he did that, he’d be guaranteed to stand on the right side of history.”

Khari Edwards, head of corporate relations for Florida-based cannabis multistate operator Ayr Wellness, said that it seems natural for President Biden to follow through on his promise of cannabis clemency, noting that support for “cannabis and criminal justice reform has never been higher.” He added that he believes that the legal cannabis industry has a moral obligation to help those who have been disproportionately affected by cannabis prohibition and enforcement.

“With licensed businesses now able to legally engage in the cultivation and sale of cannabis, we find it wrong that others continue to sit behind bars for doing the same thing we do legally today,” Edward wrote in an email. “We believe the cannabis industry should collectively stand together to help others and be part of the solution.”

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