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Hopes for Marijuana Criminal Justice Reform In This Congress May Be Dead – Update for December 6, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

“REEFER MADNESS” AS SENATE DEMOCRATS SELL OUT ON POT CRIMINAL JUSTICE REFORM

reefer181210It turns out not to matter that voters want cannabis reform, or that the MORE Act has passed the House and probably could have passed the Senate by a filibuster-proof majority, or even that Senate Majority Leader Charles Schumer said just a few weeks ago that he was pushing for marijuana reform this year.

On Saturday, Axios broke the news that Schumer would bring the Secure and Fair Enforcement Banking Act (H.R. 1996) to a vote, giving up on comprehensive reform that included expungement of federal marijuana trafficking convictions. The compromise legislation does not legalize marijuana on a federal level, leaving pot as a Schedule I drug, like heroin and LSD.

The MORE Act (H.R. 3617) is dead. The replacement Cannabis Administration and Opportunity Act (S. 4591) – which also included retroactive expungement of federal marijuana convictions – also appears to be dead. The only measure that could include any criminal justice reform is the National Defense Authorization Act (H.R. 8900), which the House may use as a vehicle for drug criminal justice reform.

Instead, Democrats in the Senate will push to liberalize banking access to the cannabis industry. The SAFE Banking Act would provide a “safe harbor” for regulated banks to work with cannabis firms in states where cannabis is legal.

Schumer says he will “more than likely” attach the legislation to a must-pass year-end bill like the NDAA, which gets a vote annually. The House of Representatives attached the EQUAL Act (H.R. 1693) to the NDAA last July 19 with bipartisan support, but no one is talking about the Senate doing the same.

ironyalert220523Ironically, the Schumer package also reportedly includes the Harnessing Opportunities by Pursuing Expungement Act of 2021 (H.R. 6129), known as the HOPE Act. According to a bill summary, the measure “authorizes the DOJ to make grants to states and local governments to reduce the financial and administrative burden of expunging convictions for state cannabis offenses.” In other words, Congress will authorize money to help states expunge marijuana convictions, but it won’t lift a finger to expunge federal convictions.

Yesterday, House lawmakers delayed committee consideration of the NDAA amid disagreements over key issues. Democratic leaders had hoped to see the NDAA advance with marijuana reform provisions attached.

The House Rules Committee was expected to take up the NDAA on Monday, but Chairman Jim McGovern (D-MA) deferred consideration, saying the “package is not ready yet.”

Abandonment of cannabis criminal justice reform by the Senate Democrats – who torpedoed the MORE Act to begin when Sen Cory Booker (D-NJ), Sen Ron Wyden (D-OR) and Schumer introduced the alternative CAOA – came at the end of a week in which the New York Times criticized last month’s Biden mass pardon of people with marijuana simple possession convictions. The Times reported, “And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.”

warondrugs211028The Times observed that Biden was a “champion of aggressive drug laws earlier in his career, including the 1994 crime bill that led to mass incarceration,” although “he has more recently embraced leniency for those convicted of minor drug offenses.” Biden has said he does not support legalizing marijuana, “putting him at odds with 80% of self-described Democrats and 68% of Americans, according to a Gallup poll released this month,” The Times said.

The SAFE Banking Act is an incremental change in cannabis laws, being rolled out just as Marijuana Moment editorialized for taking such an approach. “It’s time to acknowledge that incrementalism is not selling out, it is not crumbs, and it is not failure,” the website said last week. “Failure is continuing to lock up our citizens while we quibble over who gets the spoils of a post-prohibition world.”

This leaves the Dept of Health and Human Services study rescheduling marijuana as the best hope for any change leading to sentencing reform. Last month, the National Law Journal reported that a panel of consulted legal experts estimated that marijuana will be rescheduled as a Schedule II or III drug by January 20, 2025.

Axios, Scoop: Senate plots pro-pot move for lame-duck (December 3, 2022)

Guardian, Senate Democrats to reportedly push banking reforms for cannabis industry (December 3, 2022)

Fox Business News, Senate aims to attach major marijuana legislation to end-of-year ‘must-pass’ bills: report (December 3, 2022)

Catholic News Agency, Bishops urge passage of bill that would give same sentences to crack and powder cocaine offenders (August 11, 2022)

Marijuana Moment, Democrats’ Focus On Social Justice Marijuana Bills Has Blocked Achievable Progress On Reform (December 2, 2022)

National Law Journal, Editor’s Roundtable: A New Biden Doctrine? (October 31, 2022)

Marijuana Moment, Fate Of Marijuana Banking Reform Uncertain As Lawmakers Delay Defense Bill Consideration Amid Disagreements (December 5, 2022)

– Thomas L. Root

Election Leads to Legislative Uncertainty for Pot Reform – Update for November 11, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HOPE FOR MARIJUANA REFORM IN CONGRESS DIMS, BUT POT PROGNOSTICATORS SEE A TWO-YEAR HORIZON FOR RESCHEDULING

marijuana-dc211104The Republicans own the House, the Democrats own the Senate. That seems to be the likeliest scenario right now. In the House, the Republicans need seven more seats of the still-contested seats, the Democrats need 26. In the Senate, the Republicans and Democrats each need two of the three yet-undecided races.

A divided 118th Congress is the likeliest outcome. Even so, Marijuana Moment reports, “there would still a range of legislative possibilities for cannabis reform, including (most optimistically) descheduling.”

Because key players like Senate Majority Leader Chuck Schumer (D-NY) and Senate Finance Committee Chairman Ron Wyden (D-OR) are likely to retain their positions and are dedicated to marijuana reform, “they have pretty good leverage over the House if they want to bring them to the table on the issue,” Marijuana Moment reported.

But the Senate is even more unlikely to force a Republican-controlled House to take up a comprehensive legalization bill such as the Cannabis Administration and Opportunity Act (CAOA), S.4591, that the Democrat-controlled House has been to convince the Senate to take up the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, H.R. 3617.

marijuana220412There still could be some Congressional action in the upcoming lame-duck session – which begins on Monday for 17 legislative days before the end of the year – but it’s likely President Biden will want to ramrod as many as his initiatives as he can while he still owns both houses of Congress.

Nevertheless, marijuana advocates among the House membership has scheduled a hearing for Tuesday to discuss bipartisan marijuana reform issues at the federal and state level.

The House Oversight Civil Rights and Civil Liberties Subcommittee posted a notice of the meeting on Tuesday, as voters in states across the country head to the polls to decide on cannabis legalization ballot measures.

The congressional meeting, titled, “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level,” will take place on November 15. Witness have not yet been announced.

It’s not clear if the hearing will focus on any specific pieces of federal marijuana reform legislation, but Rep. Nancy Mace (R-SC), who serves as the GOP ranking member on the panel, previously told Marijuana Moment that she had received a “promise” from leadership that her States Reform Act (SRA), H.R. 5977, would be taken under consideration in the panel.

marijuana221111That legislation would end federal marijuana prohibition while taking specific steps to ensure that businesses in existing state markets can continue to operate unencumbered by changing federal rules. National Law Journal reported last week that a panel of legal experts it consulted marijuana will be re-scheduled as a Schedule II or III drug by January 20, 2025.

Early last month, President Biden ordered government agencies to study removal of marijuana from the Controlled Substances Act drug schedule.

One expert said it is unlikely cannabis will be descheduled altogether. “I don’t think the federal government will be ready by then to relinquish control over a drug it has categorized by the CSA as one of the most dangerous drugs on the streets for over 50 years.”

Marijuana Moment, Here’s What The Midterm Congressional Election Results Could Mean For Federal Marijuana Reform (November 10, 2022)

Marijuana Moment, Congress Will Hold A Marijuana Hearing One Week After Five States Vote On Legalization Ballot Measures (November 8, 2022)

National Law Journal, Editor’s Roundtable: A New Biden Doctrine? (October 31, 2022)

– Thomas L. Root

A Tale of Two Bills (Part 2 – Up in Smoke) – Update for April 12, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

… MARIJUANA REFORM IS SUFFERING FROM TOO MUCH INTEREST

Politico was just one of several news outlets last week admitting that the MORE Act – far-reaching marijuana legalization bill passed two weeks ago by the House – still has “no real path to President Joe Biden’s desk.”

MORE’s passage marks the second time in less than two years that the House passed legislation to decriminalize pot, but the Democrats have “passed a party-line bill that has little chance of getting the necessary Republican support to pass the Senate.”

senatemarijuana220412“You’re not going to be able to get Republicans on board… the way that the MORE Act is done,” said Rep Nancy Mace (R-SC), who introduced a bill last year that decriminalizes marijuana and expunges some records but does not create federal grant programs. “You’ve got to have Republicans on board if we’re going to have any chance of getting it done in the Senate.”

Ironically, Republican complaints about MORE relate to federal funding of pot programs. No one is critical of the expungement and retroactive sentencing reforms.

The Senate — where Senate Majority Leader Chuck Schumer (D-NY), Sen. Cory Booker (D-NJ) and Sen. Ron Wyden (D-OR), are working on the Cannabis Administration and Opportunity Act — is even tougher ground for weed.

Booker and Schumer have refused to even hold a hearing on a cannabis banking bill the House has approved six times because it does not address criminal justice reform. But Democrats’ pursuit of a perfect comprehensive pot bill worries some lawmakers and advocates, who do not see a clear path forward for sweeping drug policy changes under Republican leadership in either chamber — especially the Senate. Given that Democrats may not control both houses of Congress next year, the window for federal cannabis policy port reform may not be open much longer.

MORE faces significant hurdles in the Senate. First, not all Democrats are in favor of marijuana legalization; conservative Democrats, represented by a few senators such as Sen Joseph Manchin (WV), stand in the way of reform. In order to pass the Senate, the bill needs to secure 60 votes to be safe from a Republican filibuster. Because not all Democrats are expected to vote in favor of the MORE Act, ensuring its success would require more than 10 Republicans voting in favor of it.

marijuana220412But the future of marijuana legalization does not rely solely on the success of the MORE Act. Schumer intends to introduce  CAOA later this month. If CAOA gets a vote in the Senate, it will be the first time in 50 years that the Senate voted on cannabis reform. The downside, according to the National Law Review, is that “the competing interests of these two bills could create an unnecessary deadlock, potentially leaving the cannabis industry with another year of failed reforms.”

MORE Act (H.R. 3617)

Politico, House passes marijuana legalization bill (again), but with no clear path forward (April 1, 2022)

Shepherd’s, Marijuana Legalization Act Passes the House, Likely to Die in the Senate (April 7, 2022)

National Law Review, The House Does It Again: MORE Act Ready for Senate Action (April 4, 2022)

Cannabis Administration and Opportunity Act (not yet introduced)

– Thomas L. Root

Weed, Yes; Washington, No? – Update for November 4, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BUT WAIT, THERE’S MORE…

An opinion piece in The Hill last week (admittedly written by the political director of NORML, who certainly has no particular point of view) argued that because marijuana is popular, but Congress is not, the Senate should quickly take up and pass the Marijuana, Opportunity, Reinvestment, and Expungement (MORE) Act, H.R. 3617, which would repeal marijuana prohibition by removing cannabis from the Controlled Substances Act, ending the existing state/federal conflict in cannabis policies.

marijuana-dc211104

The bill passed the full House in the last Congress with a bipartisan vote of 228-164, but died at the end of December when the two-year Congress ended without a Senate vote on the measure.

The Hill piece argued, “Given that Senate Majority Leader Charles Schumer (D-NY) along with Sens Cory Booker and Ron Wyden (D-Ore) have released their own draft proposal to repeal prohibition, which largely includes the MORE Act, it would be prudent for House Speaker Nancy Pelosi (D-CA) along with Leader Steny Hoyer (D-MD) and Whip James Clyburn (D-SC) to again pass the act and demonstrate to the American public that congressional leadership can be responsive to the public’s overwhelming desire to see cannabis legalized.”

potscooby180713That may be overly rosy. Morgan Fox of the National Cannabis Industry Assn, said last week that while the House will probably pass MORE this year, “it doesn’t look like any sort of comprehensive de-scheduling and regulation bill is going to be able to get through the Senate this year, just because of the politics at play. Democrats want something that’s very robust and contains a very strong social and restorative justice provisions. Republicans are not on board with that, even the ones that are pretty staunch supporters of ending federal prohibition.”

He said that watering down the bill would be required to get the 10 Republican votes needed to pass a filibuster in the Senate. “So I think that at this point, we’re really just trying to feel out where lawmakers are and see where we can compromise in terms of bigger legislation,” he said.

The Hill, Reforming marijuana laws before the holidays: A three-pronged approach (October 27, 2021)

Cannabis Administration and Opportunity Act (July 2021)

Insurance Journal, Takeaways from Our Conversation on Federal Legalization (October 26, 2021)

– Thomas L. Root