This week brought the largest step forward in national level marijuana law reform since 1970 as the House Committee on the Judiciary passed the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (MORE Act). First and foremost, the Act removes marijuana from the Controlled Substances Act (CSA), decriminalizing the plant. A near party-line vote will see the legislation through the House, but passage through Senate is dodgy.
Key provisions of the MORE Act:
- Removes marijuana from CSA.
- Applies retroactively to prior and pending convictions.
- Requires federal courts to expunge all prior convictions obtained under the CSA.
- Requires courts to conduct re-sentencing hearings for those still incarcerated or otherwise under the supervision of the federal criminal justice system.
- Authorizes the assessment of a 5% sales tax on marijuana and marijuana products.
- Forbids federal government from using a past marijuana conviction.
The committee vote was 24-10 for passage, with only two Republicans crossing lines to vote yes with the Democrats. No Dems voted against the measure, but two, including Eric Swalwell(D-CA), did not vote. Presumably, Speaker Pelosi would not have allowed the measure to pass if she were not ready to see it through the House. If the Republicans vote yes in the same percentage in the Senate as they did on the House committee vote, that would mean six R votes for passage, and enough to pass it if Democrat senators support it as expected. That, of course, presumes it will see a vote at all in the Senate, which is not a sound presumption, given that Mitch McConnel will likely prevent one.
Senate Leader McConnell (R-KY) surprised many with his support of removing prohibitions on industrial hemp earlier this year. The Farm Bill took it off the federal list of controlled substances and allowed it to be sold as an agricultural product. McConnell, however, spoke against allowing legal marijuana, saying, “[i]t is a different plant. It has an illicit cousin, which I choose not to embrace.” McConnell will face Bluegrass state voters in 2020, and how they feel about the issue will no doubt matter. Kentucky allows for no legal marijuana use or possession, medical or otherwise.
How Things Stand
Curiously enough, the current federal disposition regarding marijuana crimes is rather lenient thanks to a Republican Senator. Our nation’s current rules on federal enforcement actions on marijuana can be directly attributed to Cory Gardner (R-CO). Gardner held up judicial nominations for months and threatened to maintain the blockade for as long as necessary. He started that after then-Attorney General Sessions revoked the Cole memo, opening up a new front in the drug war against marijuana.
The Cole Memorandum was issued by the Obama administration and carried over into Trump’s term until Sessions rescinded it on January 4, 2018. It directed U.S. Attorneys, who authorize federal criminal charges, not to initiate prosecutions in cases where state and local laws had been obeyed. This instituted a practice of non-prosecution, but also no guarantees. One reason new federal legislation is necessary here is that the current status keeps the marijuana industry on shaky ground, and having to engage in business practices all would call unhealthy. Such as dealing with huge amounts of cash for payroll and expenses because they are denied access to banks, including reports like this:
The [California] state Board of Equalization says some dispensaries have settled tax bills with duffel bags stuffed with up to $150,000.
President Trump blinked in the face of the judicial logjam, promising no new prosecutions for those obeying state law. Will he move on marijuana federally? You could make a solid case either way based on his past ambivalence. Trump was all-set to ban flavored nicotine e-cigarette products this month but was swayed by opposition by a most important group – 2020 battleground state voters. Michigan treats marijuana like alcohol, allowing it for adults. Donald Trump won Michigan’s 16 electoral votes by less than 11,000 votes. How will he weigh that if the bill lands on his desk?
Read more from Scott D. Cosenza.