For the past 10-years, the marijuana legalization process has gained traction in the United States and other Western countries. Canada and California went legal last week; 8 states have legalized recreational use of marijuana; another 20 states have legalized medical marijuana.

Yesterday, however, the other shoe fell in Washington D.C., with the United States Attorney General reversing USDOJ policy and instructing United States Attorneys to begin prosecuting marijuana violations of the Controlled Substance Act. Attorney General Jeff Sessions' policy statement rescinds the Obama-era Cole memo; a memo that included a series of enforcement directives designed to leave policing marijuana dispensaries to the individual states.

AG Sessions' personal animus against pot is well known. He has gone on record saying that marijuana users are "not good people".

Sessions' pronouncement sends a fledgling billion dollar industry into an era of uncertainty. For the past decade, banks, insurance companies and capital investors took baby-steps into the massive marijuana industry; an industry that, until the past decade, operated solely within the Wild West of the black market.

This policy shift will chill the macro moves of the major industry players. The combined markets of California and Washington, both recreational use states, were expected to eclipse the revenue of the alcohol industry. That's some big money folks.

And because it's such big money, you can bet some of the money will be spent to deploy lobbyists in a full-court-press on Congress to, once-and-for-all, remove marijuana from Schedule 1 of the Controlled Substance Act. We here at the Law Blogger are not holding our breath, as this has been tried before, and the efforts, of both lobbyists and litigants, have failed.

Unfortunately for the marijuana industry, Congress' attitude toward marijuana seems influenced by the hubris of a failed 30-year "war on drugs" that involves a series of mutual prohibition treaties with many of our trading partners to the South. This attitude does not take into account that the ganja smuggler is a thing of the past; today high-quality pot is produced in a 2x2 closet with a grow lamp and some TLC.

Seriously, it is now time to end marijuana prohibition. Marijuana should be removed from Schedule 1 and placed into its own category; a category most-closely related to alcohol. Yes there are problems, health and otherwise, that arise from chronic marijuana use.

Prohibition, however, is not the answer. Regulate the weed; tax the revenue generated from weed; just stop the prohibition of the weed.

Post Script: Some U.S. Attorneys have made ominous statements promising aggressive prosecution for pot distributors, Massachusetts, while others, Colorado, have said they will not prosecute federal marijuana cases.

Post #613
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The push toward global legalization of marijuana has taken a few lurching steps over the past month, especially here in the Americas. Two steps forward; one step back.

The Supreme Court in Mexico just ruled that 4 individual plaintiffs could legally grow marijuana for their personal use; but the ruling fell short of outright legalization in that country. Legal experts suspect that the ruling could initiate a trend, however, that would make the cultivation and distribution of marijuana legal in Mexico.

To the North, newly elected Canadian Prime Minister, Justin Trudeau, has promised to make the legalization of marijuana one of his primary parliamentary goals; medical use of marijuana is already legal across Canada.

Here in the United States, however, pot legalization continues to struggle. For example, a legalization initiative for recreational use lost in Ohio on Tuesday.

Among the dozens of presidential hopefuls in the 2016 campaign, only Senator Bernie Sanders has called for the removal of marijuana from Schedule 1 of the Controlled Substance Act. Until pot is removed from the Act, legalization really has not chance to succeed here in the U.S.

Complicating removal of marijuana from Schedule 1 are the numerous eradication treaties the U.S. has signed with Latin American countries; a legacy of our failed decades-long "war-on-drugs". That war, relative to marijuana cultivation, has truly failed.

Legalization in California would move the needle significantly. Although the legalization measure on the Cali ballot failed in 2014, it will be on the ballot again in 2016.

In Michigan, two legalization initiatives are currently working their way onto the ballot for 2016. This choice could harm the legalization effort as voters attempt to sort their way through two separate complex proposals.

Our appellate courts have issued over a dozen published opinions interpreting the Michigan Medical Marijuana Act.

 Ever since its prohibition in the 1920s, the movement for legalization has been slow and painful. Also, there continues to be legitimate debate about the true palliative features of marijuana.

Sometimes, the justification for legalization simply comes down to the argument that it is less harmful than alcohol; alcohol is legal, ergo, marijuana also should be legal. This may not be good enough for the legislatures and the electorates called upon to vote on legalization measures.

Only time will tell...

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Post #505

Michigan has two groups actively seeking the requisite 250,000 voter signatures for placement of marijuana legalization proposals on the state-wide ballot in November 2016.

The first initiative, sponsored by the cumbersome Comprehensive Cannabis Law Reform Committee  favors the "home grow" option of marijuana production and would allow a home grower to possess all of the yield from a grow cycle. The non-commercial transfer of up to two and 1/2 ounces would be permissible and a system of regulated marijuana commerce would be created.

Competing with this is the proposal of the Michigan Cannabis Coalition which does not appear to have a personal possession limit. This proposal does, however, grant municipalities the option of passing local ordinances regulating home grown marijuana. Municipalities can ban home grown pot, or it can increase the default of two ounces of personal possession.

Both proposals envision a well-taxed system of commercial marijuana production. Both proposals have strong immunity from prosecution provisions of the type featured in our medical marijuana act.

It remains to be seen whether both proposals make it onto the ballot. According to an April poll, only 51% of Michiganders favors legalization; way too close to call. Generally, Democrats and younger voters favor legalization, while Republicans and older voters oppose legalization.

At least 7 other states likely will have marijuana legalization on their ballots next fall, including Ohio. Unfortunately, neither Congress nor the Obama Administration have been proactive in removing marijuana from Schedule 1 of the Controlled Substances Act.

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Just over a year ago, Colorado began a grand experiment with the legalization of marijuana. Unlike Washington state, which has taken the state-backed dispensary route to production, the Colorado model favors the individual pot farmer; think craft beers and spirits, and apply the concept to marijuana.

The past year has showed Coloradoans, however, that the process has become more complicated -and dangerous- in order to produce a much more potent strain of the crop. One consequence of the production process: explosions.

Marijuana at its Best.  These days, the cutting-edge in marijuana production is a concentrated, golden honey-like substance known as: wax, hash oil, or shatter.  To produce this substance, mature marijuana leaves are infused with butane under pressure. When the butane is removed, the spent plant matter yields a potent residue containing a high concentration of THC, the psychoactive ingredient found in the marijuana leaf.

Collateral Damage.  Here's a problem: when folks rush through the production of their pot wax, and do not take proper care or precaution -because they are anxious to get their product onto the street and make some money- bad things can happen. For example, the butane used in the production causes combustible fumes to build-up in any enclosed, poorly ventilated structure. If the venue used in the production process is, say, an ordinary residence, then errant sparks can happen when a furnace kicks on, or a gas stove burner is lit. Under such circumstances, a spark can lead to an explosion when the butane fumes ignite.

The Stats.  According to a recent article in the NYT, thousands of people are producing marijuana wax with butane all across Colorado. In 2013, a dozen pot-production-related house explosions occurred; last year the number rose to 32 according to the pro-law enforcement group Rocky Mountain High-Intensity Drug Trafficking Area.

Legal Consequences.  What is a county prosecutor or judge to do with an individual that blows-up a house in the production of marijuana wax? Well, so far such individuals do not just get a pass. County prosecutors are charging individuals with arson. This gives rise to some interesting criminal defense lawyering, and has led to disparate results.

In one case currently pending against a 22-year old, the county judge would not dismiss the arson charges against him on the grounds of Colorado's new pot law; the defendant is facing prison time if convicted.  In another case, a 77-year old man pled guilty to arson and was sentenced to probation.

Going Forward.  As Colorado boldly sets the pace for marijuana legalization, we see the classic disconnect between the law and the realities of human activity. Nowadays, the classic grow-your-own style of marijuana production, where plants are lovingly nurtured, cultivated and smoked in cigarettes or pipes, is rapidly giving way to a more dangerous intensive process aided by explosive materials.

If the explosion trend continues, we here at the Law Blogger look for two things to occur: first, production will shift to a more state-run or subsidized dispensary model; and second, some pot growing conduct will be regulated or criminalized either by the federal government, or via state laws and regulations.

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Tomorrow's election will once again feature a variety of marijuana-based initiatives, across both Oakland County and the nation.  Medical marijuana, legalization and decriminalization are all on the ballot.

Closest to home, Berkley and Huntington Woods have proposals that would legalize the use, possession and transfer of less than one ounce of marijuana on private property.  This type of local ordinance already passed in Oak Park, Ferndale and Detroit in previous elections.

Just down the road in Pleasant Ridge, voters will have the choice tomorrow to decriminalize the same conduct [use, possession, and transfer of less than an ounce].  This means that possession of a small amount of marijuana will result only in a small fine.

Across the nation, Florida has a medical marijuana proposal on its state-wide ballot which, if passed, will put states that do not have medical marijuana laws in the minority.  Meanwhile legalization initiatives are on the ballot in Alaska, Oregon, and the District of Colombia; these states could join Colorado and Washington in the legalization of recreational use.

In New York, while nothing is on the ballot tomorrow, last July, Governor Cuomo passed the Compassionate Care Act, authorizing the NY Department of Health to promulgate regulations for the dispensation of medical pot.  Folks in Gotham are scrambling for position in the high-stakes, tightly-regulated medical marijuana industry.  While significant revenues are a certainty for the lucky few selected to join the New York pot industry, entry onto the playing field may cost seven figures [for the application].

Amazing how fast the legal landscape sometimes changes.  New York's marijuana laws have long been the toughest in the nation until last summer.  And after tomorrow, the streets of our capital may start displaying the green leaf of marijuana dispensaries.

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Great Grandfather
and Lifer Jeff Mizanskey

Missouri, like several other states, has a three strikes and you're out law.  That means on your third offense, the sentence is life without parole.

In the case of Jeff Mizanskey, all three of his convictions involved possession and distribution of marijuana.  In 1996, he was sentenced by a circuit court judge in Missouri on his last case -possession of 7-pounds of pot- to life without parole; the bullet, as we say in the industry.

Now, approaching two decades later, even the prosecutor who put him away is calling for his release.  As applied to Mizanskey, when Missouri's 3-strikes law is predicated on all-marijuana convictions, his life sentence does not seem fair.

Much of the perception of unfairness in Mizanskey's case stems from the evolution of our marijuana laws.  With two states legalizing recreational use and nearly half the other states, including Missouri, legalizing medical marijuana, a pot-related life sentence takes on a draconian flavor.

On the other hand, as my prosecutor friends would point out, this is the law that the Missouri legislature put on the books; federal sentencing guidelines are also very harsh.  When the legislatures pass the laws, there should be an obligation to follow them; typically, sentencing judges do.

Yet some sentences are so harsh, their inherent unfairness forces change.  This happened in Michigan to the so-called drug lifer laws of the 1980s.  Governor John Engler not only signed a law nullifying the drug lifer laws, the nullification included retroactive application to all inmates sentenced under the revoked law, making each lifer eligible for parole.

In Mizanskey's case, there is momentum for Missouri Governor Jay Nixon to grant his clemency petition.  There are believed to be approximately 20 people sentenced to life terms for marijuana-related convictions.

As the legalization of marijuana unfolds over time across our nation, these individuals stand-out as markers of a failed prohibition policy.  Following the letter of the law vs doing what is right under the circumstances is an age old struggle in our free society governed by laws.

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By:  Timothy P. Flynn

Last year, former DEA Supervisory Special Agent Patrick Moen jumped from the federal law enforcement ship he was on his entire career.  He swam aboard Privateer Holdings, a Seattle-based private equity firm dedicated to the development of the emerging North American cannabis market, where he currently serves as the Managing Director of Compliance.

Readers of this blog will recognize the recurrent theme embedded in this post.  Put simply, although marijuana has become much less criminalized over the past decade, its persistence on Schedule 1 of the federal Controlled Substance Act significantly compromises the trajectory of the legalization process.

During his career at the DEA and the Department of Justice, former agent Moen was immersed in all aspects of the illicit drug industry.  He developed expertise in forensic accounting, electronic surveillance, undercover operations, and intelligence.

Recognizing the trend toward legalization of marijuana, Moen kept an eye on the industry players along the West Coast from his home in Portland, Oregon.  He was underwhelmed until he saw an interview with Brendan Kennedy, the Yale-educated CEO of Privateer Holdings.

As the compliance director, Moen navigates the network of money-laundering and conspiracy statutes and other state drug laws to maintain 100% compliance for Privateer.  Check out the firm's website, linked above; they truly have it going on as far as the pot industry is concerned.

We here at the Law Blogger have followed the federal court challenges the pot lobby has made to the Schedule 1 classification; we have followed the international relations involved with our sudden shift in the quarter-century "war-on-drugs", and the effect this recent about-face has had on Latin American regional treaty states that have accepted our international aid dollars for decades to eradicate pot and criminalize drug cartels.

As former agent Moen fully understands, state pot laws and medical marijuana acts are designed to facilitate the hippy farmer "grow-your-own" business model.  But enterprising profiteers are pushing the bounds.

The pot industry, however, need banks and insurance companies to get involved in the business plan for these, er, budding companies to take the next steps.  The big boys have shied away due to the continued federal illegality, leaving company owners to carry boxes of cash to banks every day, wasting time counting out paper money.

Neither are banks and insurance companies reassured by the present administration's "hands-off" approach to the federal marijuana laws.  AG Eric Holder will not hold his post forever; political winds can change overnight.

We here at the Law Blogger believe it is time to truly decriminalize marijuana by removing it from Schedule 1.  The case brought by the pot lobby currently under consideration by the SCOTUS will not get the job done; that is a task for Congress.

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