Arkansas Supreme Court Signs off on Legalization Ballot Measure

The Arkansas Supreme Court ruled late Thursday that voters in the state will have the opportunity to decide on a recreational marijuana proposal that will appear on this November’s ballot.

The decision ends a drawn-out dispute over the measure, which would legalize pot for adults aged 21 and older while also establishing a state-regulated marijuana market.

State officials, including Arkansas’ secretary of state, challenged the validity of the measure, which would be an amendment to the state’s constitution.

Activists submitted more than enough valid signatures for the proposal to qualify for the ballot, but the state Board of Election Commissioners rejected the measure, contending that the ballot title did not adequately explain the amendment to voters.

The group behind the proposal, Responsible Growth Arkansas, filed an appeal to the state Supreme Court, which made a preliminary ruling last month that the amendment should appear on the ballot, but held off on deciding whether the votes will actually count.

On Thursday, the court issued its final decision, ruling that the amendment is sufficient and rejecting the Board of Election Commissioners’ authority to deny the proposal in the first place.

As the Associated Press reported, the justices “rejected the board’s arguments for denying the measure” and “also struck down the 2019 law that empowered the board to certify ballot measures.”

According to local news station WREG, the majority opinion said that “the ballot title at issue is complete enough to convey an intelligible idea of the scope and import of the proposed amendment,” and that “Respondents and Intervenors have not met their burden of proving that the ballot title is insufficient.”

“The people will decide whether to approve the proposed amendment in November,” the opinion said.

Responsible Growth Arkansas celebrated the decision.

“We’re extremely grateful to the Supreme Court that they agreed with us and felt like it was a complete validation of everything we’ve done,” said the group’s attorney, Steve Lancaster, as quoted by the Associated Press. “We’re excited and moving on to November.”

The majority also said that the Board of Election Commissioners “has no discretion to determine whether to certify a ballot title,” according to WREG, and that “the Board had no authority to decline to certify the ballot title to the Secretary of State, and its action is without legal effect.”

“I am confident that Arkansans can read this ballot title and understand that a vote for the initiative is a vote in favor of legalizing recreational marijuana and that their decision could have a wide-ranging impact on current medical-marijuana laws and regulations and children. It is for the people—not this court—to exercise the right to amend the constitution, and our court must continue to preserve this first power of the people of Arkansas by not supplanting their decisions with ours,” wrote Justice Rhonda Wood in a concurring opinion, as quoted by WREG.

Another justice, Shawn Womack, “concurred in part with the majority’s opinion but also dissented,” according to WREG, saying that the “ballot title fails to sufficiently advise voters of the magnitude of the change and gives the marijuana industry greater leeway to operate with limited oversight in these areas.”

But Womack also said he’s “confident that Arkansans can read this ballot title and understand that a vote for the initiative is a vote in favor of legalizing recreational marijuana and that their decision could have a wide-ranging impact on current medical-marijuana laws and regulations and children.”

“It is for the people—not this court—to exercise the right to amend the constitution, and our court must continue to preserve this first power of the people of Arkansas by not supplanting their decisions with ours,” Womack said, as quoted by WREG.

The post Arkansas Supreme Court Signs off on Legalization Ballot Measure appeared first on High Times.

Oklahoma Supreme Court To Consider Whether Legalization Initiative Will Qualify For Ballot

The Oklahoma Supreme Court on Tuesday agreed to settle a dispute surrounding a recreational cannabis initiative that could appear on the state’s ballot this year, giving hope to activists that the proposal may still qualify.

Last week, the prospects for the initiative appeared grim. Although the Oklahoma secretary of state confirmed that organizers had submitted more than the requisite number of signatures for the proposal to qualify for the ballot, supporters lamented that it likely would not be certified before the August 29 deadline.

As the Associated Press detailed on Tuesday, Oklahomans for Sensible Marijuana Laws, the group behind the proposal, known as State Question 820, “gathered enough signatures to qualify…for a statewide vote, but because it took longer than usual to count the signatures, it’s not clear if there is enough time to get the question printed on ballots ahead of the Nov. 8 general election.”

Supporters of State Question 820 petitioned the Oklahoma Supreme Court to settle the matter.

“Since filing their initiative more than six months ago, proponents have done everything in their power to expedite the unwieldy Oklahoma initiative petition process so the People of Oklahoma can exercise their right to vote on the measure at the next general election,” the Yes on 820 campaign wrote in the petition, as quoted by the Associated Press. “Yet they have been stymied by state officials (or their hand-picked vendors) who are either unable or unwilling to perform their administrative duties in a timely and efficient manner.”

On Tuesday, the state Supreme Court “issued an order assuming jurisdiction to decide if the state question will appear on the November 2022 ballot,” according to Tulsa Public Radio, a decision that pleased the SQ 820 campaign.

According to the station, “the measure has to make it through the 10-day publication period before Court Justices will approve it for the general election.”

“We’re actually thrilled,” campaign director Michelle Tilley said, as quoted by local news station Fox 25. “We’re thrilled because the Supreme Court has recognized that we have enough valid signatures to go forward, and we are thrilled because they have left open the possibility that after our 10-day protest period is over, that they have jurisdiction to place this on the ballot in November.”

“We’ve done what we’ve had to do, we’ve really really worked hard,” Tilley added, as quoted by Tulsa Public Radio. “We even turned in our signatures 30 days early. We’ve done everything to try and make these deadlines, and it’s hard. We’re playing by the rules and then the rules change, so.”

The 820 campaign has been stymied in particular by a new ballot system implemented this year in Oklahoma.

The Associated Press reports that “while the Oklahoma Secretary of State’s Office has typically handled counting signatures in house, the process this year involved a contract with a company connected to a political polling firm to provide software and technical assistance to help verify the voter registration status of signatories,” and that as a result, “supporters say a signature-counting process that typically takes two to three weeks took nearly seven weeks to complete.”

“This new process differs significantly from the historical practice of merely counting the number of individuals who signed the petition without regard for their voter registration status,” Oklahoma Secretary of State Brian Bingman said in a statement, as quoted by the Associated Press. “Our office has been in constant communication with the proponents and we look forward to working with them and other interested parties as we continue to improve this new process.”

The post Oklahoma Supreme Court To Consider Whether Legalization Initiative Will Qualify For Ballot appeared first on High Times.

Legalization vs. The Constitution: Why Most States’ Cannabis Laws Are at Risk

Americans confused and frustrated by the conflicting and contradictory mishmsash of state and federal cannabis law can take solace: US Supreme Court Justice Clarence Thomas doesn’t like it either. But for argumentative types and fans of litigation, good news is here. Thanks to a recent federal court decision, anyone dissatisfied with the status quo in certain states’ cannabis regulatory schemes has more cause to sue and overturn those laws. The era of the cannabis lawsuit has arrived.

The Aug. 17 First Circuit Court of Appeals decision that invalidated a residency requirement in Maine’s medical-marijuana law won’t allow for cross-border shipments of cannabis in between states anytime soon, despite some misleading (or confused) analyses. What it does do, legal experts and federal lobbyists told Cannabis Now, is make it easier for Big Weed to take over otherwise protected state markets—while also, in a twist, putting their current business models at risk.

The decision also set state and local regulators scrambling for their lawyers to see where they’re most exposed. Unfortunately for the social justice minded, well intentioned efforts to ensure minority participation in the cannabis industry’s so-called “equity” programs may be most at risk.

Interstate Commerce vs. Shipping Weed

First, the court case. Like several other states, Maine—which legalized adult-use cannabis in 2016—had on its books residency requirements for anyone seeking a cannabis permit. That’s problematic, as any law that favors locals over out-of-staters violates what’s called the “Dormant” Commerce Clause regulating “interstate commerce.” 

As Scott Bloomberg, an associate professor of law at the University of Maine wrote, “Our nation’s current system of regulating marijuana would ordinarily be unconstitutional.”

Recognizing this flaw—one that legal experts have identified as vulnerable for years—an out-of-state Delaware company called High Street Capital that wished to buy out Northeast Patients Group, owner three of Maine’s seven medical dispensaries, sued the state to overturn the residency requirement. 

Maine regulators dropped the residency requirement for recreational cannabis but tried to defend the residency requirement for medical cannabis—and lost, twice, first in federal district court and then again Aug. 17 on appeal.

The state could try to appeal to the Supreme Court; it’s unclear if they will. A spokesman for Maine’s Office of Cannabis Policy referred Cannabis Now to the state Attorney General’s Office. A spokesperson for the Attorney General declined to comment. 

But in the short term, states with restrictions on “interstate commerce” can expect lawsuits to overturn those restrictions. “I worry,” Bloomberg tweeted, “that [the court] just opened the door to interstate trade via judicial decree.”

Other observers were more circumspect. They pointed out that the decision alone doesn’t mean that multi-state operators can start shipping bud across state lines, as the federal Controlled Substances Act is very much in play. 

This may sound like mental gymnastics, but bear with us as we walk through the kind of situation that drives Clarence Thomas up a wall: Though cannabis is illegal, Congress has also tacitly acknowledged an interstate market in marijuana. 

“They aren’t saying it’s legal,” said Shane Pennington, a New York-based attorney at Vicente Sederberg LLP, one of the nation’s foremost cannabis-focused law firms. “They’re just saying it exists.”

Congress still classifies cannabis as illegal, and anyone trafficking in an illegal substance across state lines still commits a federal crime. 

Several states, including Oregon in 2019 and California this year, have passed laws in anticipation of federal legalization that would allow permit holders to ship cannabis across state lines, provided they hold permits in both states and federal law changes. But those provisions also require major, as-yet unseen changes in federal policy to take effect. 

Some legal experts did suggest that someone could try to send a few packs across state lines and then use the First Circuit decision in a defense; other experts said that anyone trying this particular gambit ought to have a very good defense team ready.

What this means is that restrictions that favor in-state residents over out-of-staters are vulnerable to lawsuits—because “interstate commerce” means companies based in other states doing business in other states. 

No More Locals Only (Or Locals First)

In this meaning, Facebook conducts interstate commerce. So do Cresco Labs, Trulieve and other cannabis companies with business in multiple states—like, as soon as their sale is approved, High Street Capital.

“What this case says, consistent with case law in alcohol… is that residency requirements passed for state protectionism aren’t allowed under the Commerce Clause,” said Randal Meyer, the executive director of the Global Alliance for Cannabis Commerce, a Washington, D.C.-based lobbying group. 

As Meyer and legal observers have said, Maine did not even attempt to find a defense for its residency requirement other than state protectionism, which the Dormant Commerce Clause specifically forbids. 

“The 50 states are a free-trade union,” Meyer added. “States simply aren’t allowed to discriminate against other states.” 

There are various ways around this prohibition in the form of tax breaks and other favors a state can dole out to companies within its borders. Still, any major cannabis company with intrastate businesses in multiple states—which may want to preserve that status quo as a way of protecting its investments; there’s not much utility in having five massive weed grows in five states unless federal law means you have to—should be prepared for their current business model to be disrupted.

However, other laws, like state and local equity laws that use zip codes of residency or other techniques to reserve equity licenses for drug-war victims who may not be out-of-state residents, are absolutely in jeopardy as a result of this ruling, experts said.

Equity at Risk

There are yet other ways that licensing may be used (or abused) in ways that give preference to local residents. These include “scoring” systems that ultimately favor locals as well as the “arbitrary” choices that local planning, zoning, or even cannabis regulatory boards or commissions may make. 

(Oh, the local good old boy who bankrolled the Chamber of Commerce’s pancake breakfast got his permit when the out-of-staters didn’t? It just came down to the merits.) 

That’s a stickier situation than a state marijuana law with an explicit residency requirement or other form of protectionism—such as some equity laws. Social equity laws are intended to fulfill marijuana legalization’s unfulfilled promise of ensuring minority participation in the industry. Many of them use residency or an upbringing in local zip codes deemed to be hit hardest by the war on drugs. 

“This isn’t necessarily because they’re trying to discriminate against out of state,” Pennington said. “They might be arguing they’re trying to help communities hurt by the War on Drugs… but a court might just say, you can’t do that anymore.”

All of these could remain if, while legalizing marijuana federally, Congress chose to suspend the dormant commerce clause, as Bloomberg wrote in a recent article, even for a short period of time while states experimented with the concept of a national weed market. Some states could opt out, others could opt in. But they can’t now under current federal law—and this spells turbulence ahead, for Big Weed as well as equity licensees.

It sure looks like cannabis lawsuits are in the industry’s immediate future.

The post Legalization vs. The Constitution: Why Most States’ Cannabis Laws Are at Risk appeared first on Cannabis Now.

Recreational Pot Question Back on Arkansas Ballot—But Will Votes Count?

The Arkansas Supreme Court this week said that a marijuana legalization proposal should be placed back on the state’s ballot, but it remains unclear whether the vote will ultimately mean anything.

It is the latest twist in what has become a messy dispute surrounding a campaign to end prohibition in the state. Earlier this month, the advocacy group Responsible Growth Arkansas filed an appeal to the state Supreme Court after the state Board of Election Commissioners rejected the group’s bid to get the proposed constitutional amendment on the ballot.

Organizers with Responsible Growth Arkansas submitted nearly 90,000 valid signatures––well above the threshold to qualify for the ballot––but the Board of Election Commissioners rejected the proposal because “commissioners said they didn’t believe the ballot title fully explained to voters the impact of the amendment,” according to the Associated Press.

“For example, commissioners said they were concerned that the amendment would repeal the state’s current limit under its medical marijuana amendment on how much THC is allowed in edible marijuana products,” the Associated Press reported.

Responsible Growth Arkansas objected to the board’s ruling, arguing that commissioners were asking for an unreasonable amount of information.

“The type of detail that the board expected, or demanded in this case, would make our ballot title thousands and thousands of words long,” Steve Lancaster, an attorney for Responsible Growth Arkansas, said after the board’s vote, as quoted by the Associated Press. “That just simply is not workable for a ballot.”

On Wednesday, the state’s high court sided with the group, but uncertainty remains high.

According to local television station KARK, “the Arkansas Supreme Court instructed Secretary of State John Thurston to certify the ballot title for [recreational] marijuana in order to place it on the November ballot,” which “will allow voters to vote in favor or against expanded access to marijuana in the state.”

But, the station noted, “it remains to be seen if the general election votes will be counted.”

KARK explains: “At issue is the deadlines for items to appear on the November ballot. Any proposed Arkansas constitutional amendment must be certified by the Secretary of State by August 25. The Supreme Court’s schedule, however, will not allow it to hear the case filed by Responsible Growth Arkansas, the group working to put recreational marijuana on the ballot, until September.”

“What that means is that we’re going to be on the ballot. You’re going to see the Responsible Growth Arkansas measure on your ballot. You’ll be able to cast a vote,” Lancaster said, as quoted by local station 4029 News. “But what’s going to happen in the interim is the Supreme Court will make its decision, and if they agree with us that our ballot title is good, then the votes will count. Otherwise, if the court decides that our ballot title is not sufficient, they’ll just never count those votes.”

“I’m confident that once the court looks at this, they’re going to agree with us that our ballot title is fine,” Lancaster continued. “So I’m, again, confident that … votes are going to count in November.”

Arkansas voters narrowly approved a ballot proposal in 2016 that legalized medical cannabis in the state.

A poll earlier this year found that a slight majority of Arkansas voters––53%–– believe that recreational cannabis should be made legal for adults aged 21 and older, while 32% said that it should only be legal for medical purposes.

Only about 10% of those polled said that cannabis should remain broadly illegal.

The post Recreational Pot Question Back on Arkansas Ballot—But Will Votes Count? appeared first on High Times.

What the Supreme Court ruling on the EPA means for cannabis

On the surface, the Supreme Court ruling on the EPA means nothing for cannabis. On June 30th, 2022, the United States Supreme Court issued its verdict for West Virginia v. EPA. This case involves how an administrative arm of the U.S. government – the Environmental Protection Agency (EPA) – enforces its authority over greenhouse gas emissions. […]

The post What the Supreme Court ruling on the EPA means for cannabis appeared first on Cannabis News, Lifestyle – Headlines, Videos & Cooking.

Texas Supreme Court Bans Smokable Hemp Production, Sales

Hemp was classified as an agricultural product when the 2018 Farm Bill was passed, but the Texas Supreme Court banned smokable hemp in 2019. This was challenged and overturned in August 2021 by the Travis County District Court, stating that it is unconstitutional to ban smokable hemp, and in December 2021, the Texas Supreme Court agreed to hear the case.

In March 2022, the Supreme court case was held with the Texas Department of State Health Services (and its commissioner, John Hellerstedt) and four smokable hemp companies (Crown Distributing, America Juice Co., Custom Botanical Dispensary, and 1937 Apothecary).

However, on June 24, the Texas Supreme Court Judge Jeffrey S. Boyd wrote in his opinion that smokable hemp is still banned. “Considering the long history of the state’s extensive efforts to prohibit and regulate the production, possession, and use of the Cannabis sativa L. plant, we conclude that the manufacture and processing of smokable hemp products is neither a liberty interest nor a vested property interest the due-course clause protects,” Boyd wrote.

The Texas Constitution mentions the right “to engage in any of the common occupations of life” and “pursue a lawful calling, business or profession,” but in Boyd’s opinion, these rights don’t apply to hemp production. “It is enough to observe that the due-course clause, like its federal counterpart, has never been interpreted to protect a right to work in fields our society has long deemed ‘inherently vicious and harmful.’”

Dallas-based hemp company Wild Hemp was the primary funding behind this effort, but the legal battle has come to an end. The company’s CEO, Zain Meghani, spoke with Dallas Observer about the ruling and how it will affect local hemp companies.

“This ruling hurts the Texas hemp industry top to bottom,” Meghani said.

Chelsie Spencer, founding member of Ritter Spencer PLLC in Addison, Texas, represented the hemp companies. “The Texas Supreme Court has determined that the Texas Constitution does not protect the economic liberty interest of smokable hemp manufacturers and processors in the state of Texas,” Spencer said. “We are profoundly disappointed in this decision and disheartened by the continued stigma surrounding cannabis. It is telling when the Court insinuates that cannabis is ‘inherently vicious and harmful.’”

Furthermore, the effort has been defeated and according to Spencer, Wild Hemp isn’t willing to spend more money to fight it. “They funded this case entirely and are now being kicked out of their home state.”

According to Spencer, the state loses with this decision to maintain a ban on smokable hemp. “I would anticipate increased consumer costs for Texas products, simply because the state kicked them out this morning, and they all have to move now,” Spencer told the Dallas Observer. “Most telling, our economic expert found that the state will lose one million in tax revenue from Wild Hempettes alone by 2024 by kicking them out.”

Wild Hemp sells a wide variety of hemp goods, such as hemp wraps, CBD Cigarillos, tinctures, topicals, paper cones, and of course their Hempettes CBD Cigarettes. Each cigarette pack can contain up to 1,500mg of CBD and come in four flavors: Natural, Menthol, Pineapple Blaze, and Sweet.

Smokable hemp will continue to be banned for sale and production, but there are other cannabis-related efforts happening in Texas that could lead to decriminalization for consumers. But there are still opposing parties to recreational legalization, including the Texas State Republican Party, which recently issued numerous planks, or stances, on cannabis and hemp. The party endorsed decriminalization in 2018, but stances announced at the 2022 Texas State Republican Convention support classifying cannabis as a Schedule II substance, but also states that recreational marijuana should remain illegal.

The post Texas Supreme Court Bans Smokable Hemp Production, Sales appeared first on High Times.

Supreme Court Takes On Abortion, Guns, Prayer in School—But Not Weed

The United States Supreme Court last week declined to take up a pair of cases that challenged a state’s decision to not include medical cannabis in its workers’ compensation program.

Given all of the seismic activity in the high court as of late, you are forgiven if you missed that.

From abortion to guns to prayer in school, the emboldened, conservative Supreme Court has taken on seemingly every hot button issue but cannabis, issuing a series of decisions that are poised to reshape American life and deepen the country’s polarization.

No decision rendered by the court in the last week—or perhaps in the last 50 years—has inflamed passions and divided the nation more than Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and ended the constitutional right to an abortion.

In a 6-3 ruling, the court’s conservative justices effectively handed abortion policy back to the states. The result was swift, with outright abortion bans taking effect immediately in a handful of states: South Dakota, Wisconsin, Missouri, Oklahoma, Arkansas, Kentucky, and Alabama. A number of other states with their own highly restrictive abortion laws also were triggered by the ruling.

In overturning Roe, which had enshrined the right to an abortion in the United States for nearly 50 years, the court essentially laid the groundwork for a country in which abortion is widely available in liberal blue states, but severely restricted—if not outlawed completely—in conservative red states.

“Roe was egregiously wrong from the start,” Justice Samuel Alito wrote in the majority opinion. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

The court’s liberal bloc wrote a scathing dissenting opinion.

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” the three justices wrote jointly.

The decision sparked immediate nationwide protests and is poised to animate this year’s midterm elections and the 2024 presidential campaign.

A day before it announced its decision in Dobbs, the Supreme Court handed down another decision that will likely have ripple effects throughout the country.

In a 6-3 ruling, the court struck down New York’s century-old law that imposes strict limits on an individuals’ ability to carry a gun outside their home.

Writing for the majority, Justice Clarence Thomas asserted that the Second Amendment ensures “an individual’s right to carry a handgun for self-defense outside the home.”

The law, which had been in place since 1911, required “applicants for a license to carry a gun outside of their homes to have a ‘proper cause’ to do so,” according to NBC News.

Per The New York Times, the decision “is expected to spur a wave of lawsuits seeking to loosen existing state and federal restrictions and will force five states — California, Hawaii, Maryland, Massachusetts and New Jersey, home to a quarter of all Americans — to rewrite their laws.”

On Monday, the Supreme Court continued its string of contentious decisions by ruling in favor of a Seattle area high school football coach who conducted a prayer at the 50-yard-line following his team’s games.

In yet another 6-3 ruling, the court’s majority said that the coach’s ritual is protected under the First Amendment.

“Respect for religious expressions is indispensable to life in a free and diverse republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” Justice Neil Gorsuch wrote for the majority.

The coach, Joseph Kennedy, had been suspended by the school district when he refused to stop the post-game prayer.

Gorsuch contended that Kennedy’s prayers were done quietly and discreetly, a point that Justice Sonia Sotomayor fiercely disputed.

In her dissenting opinion, Sotomayor noted that “Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer.” Her opinion also included a photo of Kennedy kneeling in prayer with a large group of players. The prayer resulted in undue pressure on members of the team, Sotomayor argued.

“Students look up to their teachers and coaches as role models and seek their approval,” Sotomayor wrote. “Students also depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”

The post Supreme Court Takes On Abortion, Guns, Prayer in School—But Not Weed appeared first on High Times.

U.S. Supreme Court Rejects Cases Seeking Workers’ Comp for Medical Cannabis

The United States Supreme Court on Tuesday denied petitions to hear two cases challenging Minnesota’s refusal to allow coverage for medical cannabis through the state’s workers’ compensation program. In both cases, workers sought a review of the Minnesota Supreme Court’s decision finding that the federal Controlled Substances Act (CSA) supersedes state law, resulting in a denial of coverage for medicinal cannabis for the employees’ work-related injuries.

The Supreme Court invited the U.S. Department of Justice to file a brief in the case before making a decision. In its response, the Justice Department agreed with the Minnesota court that the CSA does preempt state law. But attorneys with the Justice Department also argued that the states have not adequately addressed the issue of federal preeminence and urged the Supreme Court to reserve judgment on evolving law.

The case was not the first time a state court had ruled on workers’ compensation coverage for medical pot. In 2014, the New Mexico Court of Appeals approved the reimbursement of claims for medicinal cannabis for work-related injuries. But rulings on similar cases in Maine, New Hampshire, New Jersey, New York and Minnesota have not been consistent. Courts in New Hampshire, New York, and New Jersey found that state law was not in conflict with the CSA and authorized workers’ compensation claims for medical cannabis. But in Maine, Massachusetts, and Minnesota, judges have ruled that federal law takes precedence.

Is the SCOTUS Decision Bad News?

Attorney Anne Davis, the co-founder of Bennabis Health, a company specializing in affordable medical cannabis access for patients, says that the Supreme Court’s decision to decline to hear the cases is not necessarily a negative outcome for patients.

“While I would’ve loved a decision by the federal government mandating that cannabis is in fact a covered benefit, [the court] deferring to the states could be good in the grand scheme of the industry,” Davis writes in an email to High Times. “The more that the Supreme Court defers to states’ rights, I think the more it helps our growing industry. If the federal government takes the hands-off approach and leaves it to states’ rights, that allows the cannabis industry to grow and expand.”

With states taking the lead on pot reform, Davis believes federal legislation that permits cannabis trade between the states would create the most favorable climate for the industry.

“The problem we’re left to deal with is interstate commerce,” said Davis. “If we can somehow navigate that, then I think state rights having control over the cannabis industry is a much better option than the federal government rescheduling and allowing big Pharma to take control.”

Some advocates for cannabis policy reform had hoped the Supreme Court would weigh in on the Minnesota cases following comments from Justice Clarence Thomas last year indicating he believes the federal prohibition on pot no longer makes sense with so many states passing legislation in conflict with federal law.

“A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the federal government’s piecemeal approach,” he wrote.

Unanswered Questions

Commentating on a case the Supreme Court declined to hear in which a Colorado cannabis dispensary challenged federal policy denying standard business deductions for weed companies, Thomas said that a 2005 high court ruling upholding the federal prohibition on cannabis possession may be out of date.

“Federal policies of the past 16 years have greatly undermined its reasoning,” he continued. “The federal government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”

This week’s action by the U.S. Supreme Court leaves many unanswered questions about the viability of workers’ compensation coverage for medical cannabis. In an analysis of the denial to grant the petitions, The National Law Review wrote that the “Supreme Court’s decision to remain on the sidelines of the debate over marijuana legalization is disappointing to many who were hoping to see the high court help to break the logjam in Congress. The decision also leaves in place the clear conflict over workers’ compensation reimbursement of medical cannabis in state court decisions and facilitates the potential for further conflict as this issue continues to percolate throughout the country.”

The post U.S. Supreme Court Rejects Cases Seeking Workers’ Comp for Medical Cannabis appeared first on High Times.

Mississippi Supreme Court Upholds Life Sentence for Weed Possession

The Mississippi Supreme Court voted last week to uphold a life sentence without the possibility of parole for a man who was convicted of possessing less than three ounces of weed. The court voted 6-3 to confirm the penalty for the defendant, Allen Russell, who was sentenced under Mississippi’s habitual offender statute.

“Because the trial judge followed the law to the letter, we affirm,” Justice Robert P. Chamberlin wrote in the majority opinion quoted by the Epoch Times. “The trial judge did not have sentencing discretion in this case.”

Russell was arrested in 2017 for possessing five bags of cannabis weighing a combined total of 79.5 grams (just over 2.5 ounces) that police discovered while executing a search warrant. Lab analysis of two of the bags determined they contained 43.71 grams (about 1.54 ounces) of cannabis, and Russell was indicted on one charge of possessing more than 30 grams but less than 250 grams of cannabis.

Normally, a conviction on such a charge would carry a sentence of up to three years in prison. But Russell was also charged with being a violent habitual offender, subjecting him to a mandatory life sentence without parole upon conviction.

Sentenced Under Mississippi Habitual Offender Law

During his trial, prosecutors presented evidence that Russell had three prior felony convictions, two for burglary and one for possession of a firearm by a convicted felon. Under Mississippi state law, a burglary is considered a violent offense, even if no evidence of actual violence against a person is presented in a case.

Russell had pleaded guilty to the burglary charges in 2004 and was given two concurrent 15-year sentences. He spent a little more than 8.5 years in prison and was released in 2014, the same year that Mississippi law was changed to classify burglary as a violent crime, even if no evidence of violence is presented in court.

A jury found Russell guilty of the possession charge in 2019 and the court found that he was a violent habitual offender under the law, sentencing him to life behind bars. Russell then sued to overturn the sentence, arguing it violated his right to be protected from cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution and his constitutional right not to be subjected to ex post facto laws.

Chief Justice Michael Randolph wrote in a separate concurring opinion that Russell’s life sentence was not solely for cannabis possession and that he had been treated leniently by the courts in previous criminal cases, noting that the defendant “is no stranger to the criminal justice system.”

“Russell has received a harsh punishment not because he possessed a small amount of marijuana, but because he has repeatedly refused to abide by the laws enacted to protect all the citizens of our state,” Randolph wrote.

The chief justice added that it is “pertinent to note that the arrest came while law enforcement was attempting to serve another drug-related warrant on Russell as well as execute a search warrant on his premises.”

Justice Josiah Coleman wrote in a dissenting opinion that Russell has been poorly treated by the courts. He noted that there is uncertainty regarding Russell’s criminal history, writing that “burglary was not considered a per se crime of violence until” state law was changed in 2014. The defendant “pled guilty to two counts of burglary in 2004,” 10 years after the change. But “burglary was only considered a crime of violence if actual violence took place during the burglary” before the law was changed. The dissenting judges questioned if Russell actually had a violent criminal history.

“Prior to July 1, 2014, burglary was only considered a crime of violence if actual violence took place during the burglary,” reads the dissenting opinion. “We do not know whether Russell’s burglaries involved actual violence, but the fact that he was allowed the opportunity by the sentencing court to participate in the Regimented Inmate Discipline Program tends to indicate they did not.”

Appeals Court Confirmed Sentence Last Year

Last year, an appeals court voted 5-5 in Russell’s case, with the tie vote not enough to overturn the sentence. In an opinion upholding the penalty, the judges wrote that the sentence is in accordance with state law. But several dissenting judges wrote that courts can and should make exceptions when warranted.

“The purpose of the criminal justice system is to punish those who break the law, deter them from making similar mistakes, and give them the opportunity to become productive members of society,” appeals court Judge Latrice Westbrooks wrote in the 2021 dissenting opinion. “The fact that judges are not routinely given the ability to exercise discretion in sentencing all habitual offenders is completely at odds with this goal.”

The case was then appealed to the Mississippi Supreme Court, which upheld the sentence in last week’s decision.

A petition on Change.org organized by the group Check Your Privilege is calling on Mississippi Governor Tate Reeves to commute Russell’s life sentence. As of Tuesday, the petition had garnered more than 100,000 signatures.

“There is no amount of cannabis that should land someone a life sentence,” reads the petition. “Allen Russel was found guilty of possession in 2019 over just an ounce of weed, meanwhile laws around recreational use are softening all across the US.”

Mason Tvert, a longtime cannabis activist and partner at cannabis policy firm VS Strategies, criticized the sentence, suggesting it should be reviewed by the U.S. Supreme Court.

“It is tragically ironic that this man’s life is being taken away from him for possessing a substance which, used alone, has never taken a life,” Tvert wrote in an email to High Times. “This case certainly warrants further review and ought to be reversed.”

The post Mississippi Supreme Court Upholds Life Sentence for Weed Possession appeared first on High Times.

Will the Supreme Court Legalize Cannabis?

A great dark cloud hangs over the bright and sunny success of marijuana legalization in the US: federal law, which still declares cannabis an outlaw plant. This status quo causes great distress to American cannabis businesses and those still in federal prisons for marijuana offenses. Despite all the progress at the state level, this front of the drug war seems locked in a stalemate. Here’s a question: Can the Supreme Court legalize cannabis?

Of course; the US has three branches of government, and if Congress won’t legalize cannabis federally, and if President Joe Biden can’t, what about the Supreme Court? As long as the conservative majority on the John Roberts court is overturning long established precedent such as Roe v. Wade, could it overturn precedent related to cannabis prohibition? Or even the Controlled Substances Act itself? 

That’s the strategy Abner Kurtin, the CEO of Ascend Wellness, one of the smaller publicly traded cannabis companies operating in multiple states, recently announced he’ll try. Already successful in generating headlines—and, possibly, satisfying investors upset with recent losses and impatient with the stalemate in Congress—the strategy could work as legal experts consulted for this article told Cannabis Now, perhaps as a mechanism to pressure Congress into action, even if the Supreme Court never touches the Controlled Substances Act.

“I want to emphasize this is politically shrewd,” said Douglas Berman, a law professor at Ohio State University and executive director of the school’s Drug Enforcement and Policy Center. “It’s useful to have a two-front war, you might say. Maybe the legislature is more likely to respond when the courts are breathing down their necks.”

But this gambit isn’t without risks. The courts could reject the challenge, resulting in more lost money at a time when legal cannabis businesses are burning cash. Or the court could impose a vision of legalization that isn’t in anyone’s best interest.

Key details, including when the lawsuit will be filed or exactly what claims it’ll make, remain to be seen. Through a spokesperson, Kurtin declined to comment. 

But as he and Michael Bronstein, the president of lobbying group American Trade Association of Cannabis and Hemp explained to Marijuana Moment last month, at least six major cannabis companies will join in the suit. They will argue that the CSA is unconstitutionally applied to state-legal cannabis businesses. 

And doing the arguing for them will be attorneys from prominent white-shoe law firm Boies Schiller Flexner LLP, chaired by the $1,950-an-hour SCOTUS veteran David Boies, who has famously argued several prominent cases before the nation’s top bench.

Bring on the Lobbyists

Shelling out a few million dollars on lawyers—on top of spending a fraction of that on lobbyists to change Congress’s minds—is a tactic familiar to old-school legalization advocates. This has all been done before, with varying levels of success that, in binary terms, all failed.

Various parties including federal prisoners, cannabis researchers, an ex-NFL player-turned-businessman and legalization advocacy groups have all tried to sue the federal government before—to reschedule cannabis, to deschedule cannabis. All have failed, and all but one failed to even reach the august bench of the Supreme Court. 

That one, Gonzalez vs. Raich, held that Congress’s powers under the Commerce Clause—the federal government’s Constitutional ability to regulate trade between the states—“includes the power to prohibit the local cultivation and use of marijuana in compliance with” state law. 

That was the “best set of facts to overturn the Controlled Substances Act you could hope for,” observed Sam Kamin, a professor of law at the Denver University Sturm College of Law and a cannabis law expert. “And they didn’t do it.”

It stands to reason that the federal government isn’t really wielding this power at the moment, at least not insofar as it did with litigant Angel Raich, a severely ill cannabis patient in California whose backyard garden was raided by DEA agents. But what Kurtin and other cannabis executives want is relief from the pressures that do exist—on the banks and the taxman. 

If cannabis were descheduled, banking and taxation reform would be handled without need for Congress to legalize tax deductions and banking services. (Both the SAFE Banking Act as well as more ambitious federal legalization appear hopelessly stalled in the Senate, where 60 votes are required to even get a vote on the topic.) And companies could start shuttling cannabis in between states (although some companies don’t want that, at least not right away).

For MSOs such as Ascend Wellness, the “best possible outcome” will be a ruling that removes the federal government from cannabis entirely and leaves everything up to the states, Kamin said. The problem is that a ruling like that would also remove the federal government from any national standards around minority participation or other questions of equity—which means the legalization-minded social-justice advocates would hate it.

But again, overturning the CSA at the courts may not be the lone goal. “I think it’s part of a consistent and decades-long approach to critiquing and criticizing the CSA as not based in science, not based in the Constitution, and inconsistent with the will of the vast majority of the states and voters,” Kamin said. 

So, would the courts simply leave everything up to the states, or would the courts deschedule cannabis and hand the industry over to pharmaceutical companies with the resources to get Schedule II substances through the onerous Food and Drug Administration (FDA) approval process? All are possible. “Everything is on the table right now,” Kamin said.

That includes striking down other federal powers to enforce other laws. In this, there’s a strange and dangerous irony.

Obamacare Beware

In another life, a decade ago, the bugaboo of self-avowed libertarians, Ascend Wellness’s Kurtin, was the Affordable Care Act. While the Obama Administration’s Justice Department used the logic in the Raich decision to defend Obamacare from conservative challenges, Raich herself signed onto amicus briefs seeking to overturn the federal healthcare mandate. Arguments limiting the federal government’s power are more likely to be welcomed by conservative judges. 

And so, if the Raich precedent is put into the dustbin of history, so could other federal powers.

“They’ve got to figure out a way to bring down federal marijuana prohibition and regulation without bringing down the whole universe of federal health and safety laws,” said OSU’s Berman. No pressure.

So, will the Supreme Court legalize cannabis? As always, time will tell.

The post Will the Supreme Court Legalize Cannabis? appeared first on Cannabis Now.