Beginning in the early 1970s, NORML increasingly began pushing politicians and legislatures across the country to at least decriminalize cannabis, if not fully legalize it. They found their first success in Oregon in 1973, who reduced the penalty for up to one ounce of cannabis to a $100 fine. This trend continued with the help of NORML, getting cannabis decriminalized in Alaska, Maine, Colorado, California and Ohio in 1975, Minnesota in 1976, Mississippi, New York and North Carolina in 1977 and Nebraska in 1978. Out of their own pockets, NORML paid for numerous decriminalization proponents, including members of the Shafer Commission, to travel to various states and testify.
In 1975, Robert Randall was arrested for cultivating cannabis at his home in Washington D.C. Randall had glaucoma, and had discovered that cannabis greatly relieved his symptoms. During this defense at trial, he employed medical necessity to justify his use of cannabis, and to his and the country’s surprise, his charges were dropped. As a result of an ongoing petition with the FDA, Randall became the first US citizen to receive cannabis from the federal government in 1976. His supply was cut in 1978, so he filed a lawsuit to get it restored, which in turn set in motion the Compassionate Investigational New Drug program (CIND). The program allowed patients with serious medical conditions to receive a consistent supply of cannabis after a complicated and drawn-out application process, though only 13 people were ever approved. This program was closed in 1992 due to a flood of new applicants with AIDS and concerns that it undercut the Bush administration’s efforts to discourage drug use. 28 recently approved applicants were denied, though the 13 previously approved were carried over. By 2016, all but 2 patients had passed away, and the 2 remaining still receive cannabis from the federal government to this day.
New Mexico became the first US state to implement medical marijuana legislature, relying on federally-approved research programs and cannabis supplied by the National Institute on Drug Abuse (NIDA). Over 30 states quickly followed suite by the end of 1982, though only 7 ended up implementing the programs. The vast majority of requests for research were denied by NIDA, whose consent was required to engage in any cannabis-related research. The few studies they did approve, they placed restrictions upon in the form of the researchers’ source of cannabis, which was a single farm at the University of Mississippi, who in turn greatly limited the number of plants grown.
As the years pressed on, the classification of cannabis as one of the most dangerous substances in the country with no medical benefit persisted in the general public’s opinion. Despite the limit on research within the US, international research remained largely unhindered. Nabiximols, a class of drug utilized in numerous European countries, were a 1:1 THC:CBD pill prescribed for numerous disorders and ailments, though most frequently epilepsy, MS, chronic pain and arthritis. The approval of this medication, as well as the continued thorough research into cannabis and its effects from Israeli researchers suddenly made their way into American news, and a renewed dialogue of cannabis legalization began. For the first time since its ban in the 1930s, state officials began publicly denouncing the federal position on cannabis, and portions of the public were taking their side as well.
In 1991, 79% of San Francisco voters approved a non-binding ballot measure called Proposition P, expressing their support of medical cannabis in their city. The board of supervisors followed with Resolution 141-92, urging law enforcement not to prosecute individuals using cannabis with a letter of approval from their physician. Following this move, Santa Cruz legalized medical cannabis as well with the approval of Measure A in 1992, prompting numerous clubs and support groups to begin supplying patients with medical-grade cannabis. The San Francisco Cannabis Buyers Club, the Wo/Men’s Alliance for Medical Marijuana and the Oakland Cannabis Buyers’ Cooperative became the first cannabis dispensaries in the US, allowed to operate by city officials despite technically being in violation of both federal and state law.
The continued approval and operation of cannabis businesses in San Francisco prompted Californian residents to turn their attention towards state legalization, and managed to get two new bills introduced in 1994 and 1995. Governor Pete Wilson vetoed both of these bills, outraging supporters who responded by getting over 775,000 signatures in support of cannabis, legally prompting a statewide ballot initiative in 1996. California swiftly became the first US state to legalize their own medical marijuana laws after the voted approval of Proposition 215 in 1998 by 56% approval. Following this state-level legalization, the House of Representatives passed the House Joint Resolution 117 in September of the same year by a 310 to 93 vote, publicly opposing “efforts to circumvent this process by legalizing marijuana … for medicinal use without valid scientific evidence and [FDA] approval.” Despite these warnings, other states quickly followed California’s model, with Washington, Oregon, Alaska, Nevada and the District of Columbia passing their own medical cannabis initiatives in the same year, with Maine following in 1999, and Colorado and Hawaii in 2000.
In 2000, the Clinton administration yet again reaffirmed the government’s stance on marijuana; no currently accepted medical use. The government threatened to revoke the prescription-writing abilities of doctors who recommended or prescribed cannabis to their patients, and even prosecute them and ban them from participating in Medicare and Medicaid. A group of physicians challenged this policy as a violation of Fifth Amendment rights, beginning the Conant v. McCaffrey case in September of 2000. The physicians won the case, though lost their ability to prescribe cannabis and instead could only recommend their patients use it.
The DEA maintained their stance on cannabis as well, and began small raids on state-approved businesses in California in the following years, arresting both the employees and the medical patients of these locations. The Oakland Cannabis Buyers’ Cooperative, which originally opened in 1995, continued to provide seriously ill patients with a safe and reliable source of medical cannabis, information and patient support, gaining new support and expanding their capabilities in 1998. Swiftly following the surge of support for the cooperative, the US government sued this group for violating federal law. In May of 2001, the Supreme Court ruled in favor of the government, determining that the common-law medical necessity defense couldn’t apply because the CSA deemed cannabis to have no medicinal benefits almost 30 years prior.
This sentiment was echoed once again in 2005 during Gonzales v. Raich 545, when the Supreme Court ruled once again 6-3 that even if businesses are operating in accordance with state-level medical cannabis laws, they are still in violation of federal law and can be prosecuted. This case proved interesting however, as Gonzales made the argument that since his cannabis was grown, transported and consumed entirely within California and in compliance with its laws, it didn’t implicate interstate commerce and therefore could not be regulated by the federal government through the Commerce Clause. Despite acknowledging the validity of this defense, the Supreme Court ruled that Gonzales’ cannabis can be indistinguishable from illegal cannabis, and therefore ruled against him.
In February of 2007, DEA Administrative Law Judge Mary Ellen Bittner wrote an approval to Professor Lyle Craker to grow marijuana for research purposes at the University of Massachusetts, much to the protest of the DEA itself who reiterated one of Schedule I’s qualifiers, “no current accepted medical use.” Following this and other developments from the growing cannabis industry in legal states, such as the decriminalization of cannabis in Massachusetts in 2008, the DEA began a massively increased crackdown on otherwise legal cannabis companies, significantly increasing raids and arrests as the years pressed on. The frequency of cannabis prosecutions drastically increased in 2009 following the Ogden Memo, and again in 2011 with the Cole Memo, both of which intended for there to be less cannabis-related arrests. Seemingly intentionally, they were being disregarded entirely in favor of increased arrests by the DEA, who continued their arrests in Connecticut, Rhode Island and Vermont following their decriminalization in 2011, 2012 and 2013 respectively.
In November of 2012, Colorado and Washington each passed their own laws allowing the recreational use of cannabis after the approval of Colorado Amendment 64 and Washington Initiative 502. Each state began regulations of cannabis in a similar manner to alcohol, and began extensively building out rules and regulations surrounding its use. Adults over the age of 21 can possess up to an ounce at a time, driving while impaired is still illegal, and commercial cultivation and sales are now subject to regulation and taxes. Unlike Washington, however, Colorado allowed for the personal cultivation of up to 6 plants.
Taking into account the overwhelming public support for medical marijuana, the Obama administration was the first since Nixon to take a more neutral, independent stance on cannabis. Rather than punishing the states who chose to allow their citizens access to cannabis, the Deputy Attorney General James M. Cole released another memo in August of 2013 to all US Attorneys and law enforcement divisions of the Department of Justice (DOJ), including the DEA. Despite not technically being the first memo regarding cannabis laws from Cole, this particular memo and subsequent additions would come to be known as the “Cole Memo” within the legal cannabis industry.
It specifically directed all law enforcement agencies and attorneys to focus their prosecutorial efforts and resources to activities that violated the 8 key federal principles, and away from activities that are conducted in states where such activities are legal, so long as those state laws don’t violate the 8 federal principles. These 8 principles, the priorities in which attorneys and law enforcement would begin to focus their attention, are listed below:
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
These guidelines became the bible for cannabis businesses within legal states, and with the go-ahead from the federal government, state legislature began to build upon and strengthen the rules, regulations and expectations they had for the cannabis industry. Part of these regulations came from the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN), tasked with providing guidance to financial institutions wishing to support the cannabis industry. These institutions would need to apply risk-based anti-money laundering policies, procedures and controls, as well as conduct customer due diligence designed to identify conduct that relates to any of the 8 principles. An oft-forgotten addition to these guidelines are lengthy instructions for banks and credit unions to enter and support the legal cannabis industry as well.
In February of 2014, another addition to the Cole Memo was released, reiterating the 8 principles and acknowledging and supporting the new guidelines by FinCEN. Following this reiterated approval, the DEA began to crack down once more on their raids, and began a new wave of arrests in California, Oregon and Washington. Though they maintained their stance that these businesses had shady dealings, public opinion was staunchly negative, and apparently so was the government’s. In disregard of the DEA’s intentions, the District of Columbia, Maryland, Missouri and the US Virgin Islands decriminalized cannabis, while Oregon, Alaska and Washington D.C. fully legalized the recreational use of cannabis following the Cole Memo. Later in 2014, the Justice Department also ceremoniously gave American Indian and Alaska Native tribes the right to legalize the use and sale of cannabis on their own lands, though they already had this ability as they’re considered sovereign nations and are not directly subject to federal law.
In May of 2014, the House of Representatives passed the Rohrabacher-Farr Amendment by a vote of 219-189, effectively blocking the DEA’s ability to use federal funds to conduct these raids. It was originally introduced in 2003, but had failed 7 times before finally moving on. This marked the first time Congress had backed measures to prevent the government from taking action against businesses in states with cannabis laws. The bill moved to the Senate and was rolled into the H.R. 5016 Budget and Appropriations, which passed with bipartisan support by a vote of 231 to 192. This amendment also blocked the Department of Treasury from using federal funds to target financial institutions providing banking services in the cannabis industry.
The 2015 Budget Appropriations Act was passed by the Senate and House of Representatives in December of 2015, and among its lengthy contents was language that few expected to see. Section 538, “None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” After being named specifically in the act, Delaware, Illinois and New Hampshire decriminalized cannabis in 2015, 2016 and 2017 respectively.
Interestingly enough, the passage lists 32 states instead of the 23 at the time who had approved state laws relating to cannabis. Seemingly intentionally, it remains under the 38 states required to amend the United States Constitution. Though this language doesn’t technically address the issue of prosecuting a cannabis business, it instead prevents the DOJ from interfering in state law matters, and coupled with the guidance of the Cole Memo effectively ended the criminal investigation and prosecution of businesses that are operating in accordance with their state laws. Also of importance, however, is the law only addressing medical marijuana establishments; recreational establishments do not technically have this guarantee.
Despite this, the DOJ continued to prosecute medical cannabis providers across the country, choosing to use a new interpretation of the amendment that supposedly allowed them to do so. US District Judge Charles Breyer ruled against the DOJ in October of 2015, however, stating their interpretation “defies language and logic,” “tortures the plain meaning of the statute,” and was “counterintuitive and opportunistic.” The Ninth Circuit Court of Appeals similarly rejected the DOJ’s arguments in a 2016 ruling. Around the same time, California, Nevada, Massachusetts and Maine joined the list of US states with legalized recreational cannabis.
In January of 2018, Attorney General Jeff Sessions, popularly known for the quote of “Good people don’t smoke marijuana,” officially rescinded the 2014 Cole Memo, essentially allowing US attorneys to continue prosecuting state-legal cannabis entities. The impact of this rescission on the DOJ was largely unclear, and as Sessions lost his position as Attorney General later in 2018, the ambiguity of the situation only increased. Seemingly, however, this move was widely disregarded by the budding cannabis industry, and Vermont became the first state to legalize recreational marijuana through an act of legislature as opposed to a ballot initiative.
In June of 2018, CBD was federally reclassified from a Schedule I substance akin to heroin to a Schedule V substance, the least restrictive category. CBD products were still required to be approved by the FDA before they could be sold commercially, and as such only one medication was ever approved, a synthetic form of CBD called Epidiolex, developed by GW Pharmaceuticals for the treatment of childhood epilepsy.
Swiftly following this, however, by the end of December in 2018, the Agriculture Improvement Act of 2018 was signed into law by Mitch McConnell, officially reclassifying hemp and CBD away from any drug scheduling and allowing the Department of Agriculture to manage it as a crop rather than the Department of Justice managing it as an illegal substance. This bill also allows interstate commerce of hemp and hemp products, including CBD, hemp farmers to purchase crop insurance, and additional research from pharmaceutical companies.
Despite the new risks associated with operating a cannabis business in the US today, the industry continues to grow and get stronger than ever. What we are seeing today surrounding the passing of so many cannabis laws is the most significant constitutional conflict over states’ rights versus federal rights since the Civil War.
Despite numerous state’s steps to legalize cannabis on their own terms, marijuana still carries a mandatory federal minimum, and prosecutions still occur for recreational and medical consumers in states without legalization. First offenses can land you in prison for 2 to 10 years in some cases. According to the FBI, marijuana accounts for nearly half of all drug arrests to date. Over 659,000 US citizens were charged with marijuana law violations in 2017 alone, with 90.8% of those being possession only, despite the majority of US states having legalized medical marijuana. Despite the fact that white people are statistically more likely to consume marijuana, black people and Latinos make up 46.9% of those arrested for marijuana charges, even though they make up just 31.5% of the US population.
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