Personal Cultivation Of Cannabis: Constitutional Concerns And The Cole Memo

By Bailey Hirschburg

The following is one section of a report presented by Washington NORML to the state’s Liquor and Cannabis Board (LCB) regarding their study of regulatory options for home growing. WA NORML’s full report, “Personal Cultivation of Cannabis: A look at policy alternatives” can be found here:

The study was mandated by recently by law (SB5131), and directs a “study of regulatory options for the legalization of marijuana plant possession and cultivation” by the LCB, directing the use of guidelines from a 2013 Department of Justice memorandum outlining federal expectations of state-legal marijuana policies as a guide. Written by then-deputy Attorney General James Cole, this document is widely referred to as the “Cole Memo.”

The LCB is taking public comment on their regulatory options, found here . Email your comments to rules@lcb.wa.govby October 11th to see they’re included in the study’s public response.

EXCERPT:

When Washington legalized adult possession in 2012 through I-502, only the state of Alaska had any decriminalization of personal cultivation. Today, seven states have as well as the District of Columbia have legalized not just possession and use, but some form of cultivation. All are been treated as complying with the Cole Memo, meaning a compliant policy is not only feasible, but common.

Many of the Cole Memo’s priorities are sensible and existed in the intent and language of Washington’s legalization initiative before the memo was issued, including prohibiting access to minors, stringently regulating impaired driving, and studying legalization’s social impacts. However, basing state law on this document over other arguments is untenable. It clearly reads: “This memorandum is not intended, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.” The Washington State Senate Committee Services’ published guide to legislators fails to directly address this statement in it’s summary of the Cole Memo. Combined with the abnormal size of SB5131, this means some lawmakers may not have been clear on the risks inherent in basing a study about rights on a non-binding opinion of commercial markets.

Furthermore, the memo offers a relevant example of where state enforcement typically supersedes federal action. “the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property. Instead, the Department has left such lower-level or localized activity to state and local authorities and has stepped in to enforce the CSA only when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above.”

The Cole Memo aside, a simple argument for allowing home growing is found in Washington’s Constitution “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Washington Supreme Court Associate Chief Justice Charles W. Johnson noted “The broad language in article I, section 7 will always require that official interferences with the private affairs of residents are governed by precise and predetermined legal principles. But by allowing for disturbances made with the authority of law, the framers also allowed future generations to play a role in shaping their privacy rights, provided the relevant constitutional limitations are respected.”

This right to privacy is woven into our civic fabric, and fairly extends to a plant adults can and do possess in homes across the state. The scent or appearance of marijuana is no longer a crime, and the state lacks a compelling interest in policing small gardens. The cultivation and use of cannabis doesn’t damage or block another’s rights. The state can only continue this practice with a clear explanation of why constitutional law allows this authority.

The Cole Memo guidelines are largely sensible, and based on the priorities of I-502. Some sections discuss specific issues in depth, but most would not be impacted by legal home growing. As of September 2017, those guidelines are:

1. Preventing distribution to minors. (Included in I-502, see “Impact on Youth”)

2. Preventing the revenue from going to criminal enterprises, gangs and cartels. (Included in I-502, see “Intent of I-502”)

3. Preventing the diversion of marijuana from states where it is legal to other states. (Not addressed in I-502. (Home growing poses minimal threat due to the costs in transporting and risks for arrest in distributing. Though law enforcement typically calculates seized marijuana value on final street price per individual sale, growers not distributing themselves often sell in less-profitable wholesale price. See “Academic Findings on Personal Cultivation”)

4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity. (Not addressed in I-502. Because the sight and smell of marijuana is no longer a crime, nor are cooperative or medical marijuana grows, this will be an issue of concern regardless of legalization of home grows. However, clear guidelines for police and the public assists in focusing investigatory resources on active threats to the guidelines. See “Marijuana Legalization and Nosy Neighbor States”)

5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana. (Not addressed in I-502. If all adults can grow cannabis in private it will reduce the likelihood of violent crime in/around marijuana licensees or currently illegal personal cultivation sites.)

6. Preventing drugged driving and other adverse public health consequences associated with marijuana use. (Included in I-502 in the form of revenue directed to public education and research. Home grows offer a source of safe cannabis that doesn’t require driving after purchase of a seed/plant clone. Rates of impaired driving have never been examined based on a consumer’s sourcing of cannabis.)

7. Preventing the growing of marijuana on public lands and the environmental dangers posed by marijuana production on public lands. (Included in I-502, Washington state continues to receive marijuana eradication funding from the DEA. By licensing production and processing Washington continues to focus on larger-scale, criminally organized public grows. Cultivating fewer than 20 plants on public lands is not common, but risk of arrest means those growing for themselves are motivated to do so away from their own property. See “Impact on Law Enforcement” & “Impact on Other Issues”)

8. Preventing marijuana possession or use on federal property. (Included in I-502, as the initiative highlighted the difference between federal and state laws and created appropriate areas of possession and use it made the risk of possession or use on federal property less appealing. Home growing continues that trend.)

Finally, even with the best of intentions, legal challenges to a law based on a memorandum is potentially fatal to an entire law. It’s unclear if the state could even show the memo as evidential in court.

OLCC Approves Medical Bump-Up Canopy For Marijuana Producers

OREGON: The Oregon Liquor Control Commission today approved rules allowing growers licensed in Oregon’s Recreational Marijuana Program to grow marijuana specifically for Oregon Medical Marijuana Program (OMMP) cardholders.  Under this “medical bump-up” arrangement recreational producers will be allowed to grow additional canopy above what is allowed in their OLCC license.

The new rules allow producers to enter into agreements with OMMP cardholders, however a medical cardholder can only have one assigned grower.  Producers that decide to add medical bump up canopy can transfer useable marijuana to an OMMP cardholder.

If a cardholder allows, a producer may transfer excess to other cardholders and caregivers, and OMMP dispensaries and processors.  All production and transfer of excess product is required to be tracked in the Cannabis Tracking System (CTS).

“This will be the first medically grown marijuana in Oregon under regulations that meet the compliance guidelines of the federal Cole Memo,” said Marvin Revoal, Acting Chair of the OLCC.  “It’s important that we keep legally produced marijuana from being diverted to the illegal market, and again Oregon’s leadership shows that both medical and recreational marijuana can be regulated together.”

The OLCC already allows the sale of medical grade marijuana products by its licensed retailers and those products amount to about 14% of sales in the OLCC regulated environment.  Under the bump-up rules up to 25% of the yield grown for an OMMP cardholder can be sold to OMMP processors and dispensaries.

Addressing the concern voiced by patients, doctors, and medical marijuana advocates that the three pound limit would create a medicine shortage for some patients, Commissioner Pamela Witherspoon called on the Commission to adopt an exception process for patients who need more medicine.

Steven Marks, the Commission’s Executive Director said the agency would monitor patients’ ability to obtain their medicine – especially those with serious illnesses, and act to ensure patient access to medicine either in partnership with the Oregon Health Authority, or within the OLCC’s own rule-making authority.

“This approach strikes a balance in that it will cover the need of the majority of OMMP cardholders,” said Steven Marks, Executive Director of the OLCC.  “At the same time the OLCC wants to help patients who are seriously ill be able to obtain whatever amount of cannabis-derived medicine they need to treat their illnesses and help them maintain or improve their quality of life.”

The OLCC will monitor the implementation of the bum-up canopy rules and if necessary adjust the rules as the agency learns more from producers and OMMP cardholders who participate in the bump-up program.  The bump-up rules take effect on May 1, 2017.

NORML Responds To Jeff Sessions Being Confirmed As Attorney General

DISTRICT OF COLUMBIA: Despite historic opposition to a nominee for Attorney General, today Senator Jefferson Beauregard Sessions (R-AL) has been confirmed to assume the role of our nation’s top law enforcement official.

“Jeff Sessions’ views are out of step with mainstream America and they are in conflict with the laws regarding marijuana in over half of the states in this country. Our elected officials, now more than ever, know that marijuana policy is at the forefront of the minds of American voters and that we are willing and able to mobilize for it,” said Justin Strekal, Political Director for NORML, “We will never stop fighting for further marijuana reforms at the state level and much needed federal policy changes. With Americans throughout the country organizing and taking action, the fight for cannabis freedom will continue with renewed energy.”

Senator Sessions is a militant opponent of any efforts to reform marijuana policy who once notoriously remarked that the Ku Klux Klan “was okay until I found out they smoked pot.” He is a staunch proponent of the long-discredited ‘gateway theory,’ and has called on federal officials to return to the ‘Just Say No’ rhetoric of the 1980s.

In fact, he was one of only 16 US Senators to receive a failing grade from NORML in our 2016 Congressional Report Card because of statements including: “We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger,” and ” cannot be played with, it is not funny, it’s not something to laugh about, and trying to send that message with clarity, that good people don’t smoke marijuana.”

 

Former Deputy Attorney General James Cole Reflects Back On The Cole Memos

NEW YORK: Pot podcaster Cannabis Economy has released an in-depth interview with Former US Deputy Attorney General James M. Cole whose three memos reset Justice Department guidance regarding federal oversight of legal cannabis.  The conversation is Episode 140 on the Cannabis Economy podcast app on iTunes, Google Play or found through the iTunes Podcast App.

“You can’t prosecute every case involving a violation of federal statute that comes your way,” Cole said, explaining the rationale behind his so-called “Cole Memos.” which advocated for the Justice Department to focus on pursuing international drug cartels rather than cannabis producers in states that had legalized cannabis.

The burgeoning legal cannabis industry is an amalgam of agricultural, manufacturing, retail, medical and pharmaceutical businesses.   While medicinal marijuana has been legal in nearly half of the states in the US for years, recent ballot initiatives aim to legalize both medical and adult-use cannabis.  Many other ballot initiatives are just months away, this coming election day.  Canada has had federally legal medicinal cannabis for fifteen years and is on the precipice of federally legal adult-use cannabis.

Cannabis Economy’s host Seth Adler notes, “The Cole Memos are historic documents, specifically for legal cannabis and for commerce in general.  Jim Cole penned a three-part guidance for a nascent industry.  The guidance focuses explicitly on a working regulatory infrastructure within each legal cannabis state.  Responsible operators are working with state and provincial regulators to ensure compliance, no matter how difficult the task.”

He continues, and “no matter your opinion on Project Claudia- the Toronto dispensary raids from this past week- safe patient access to legal cannabis is paramount.”

Just hours after the Toronto dispensary raids; “Project Claudia,” Adler moderated a panel at the Lift Cannabis Expo with executives from Licensed Producers, Bedrocan and Supreme and the Executive Director of the Canadian Association of Medical Cannabis Dispensaries.  The panel is Episode 150, released today.

In Canada, unlike Vancouver and Victoria in British Columbia, Toronto does not have a regulatory framework for its dispensaries.  The federal regulatory framework- Marijuana for Medical Purposes Regulations (MMPR) does not account for dispensaries.  Thus the Toronto dispensaries are in a legal limbo, which isn’t necessarily grey.

So the Lift Cannabis Expo Roots panel had perfect timing recorded live last week just after the raids and available today.  The panelists discussed the impact of the very first Canadian Dispensary on the MMAR (Marijuana Medical Access Regulations) and subsequent MMPR.   The panelists also discussed the upcoming re-write of MMPR in August, and just what the regulatory framework will look like as Canada makes it’s way to legal adult-use cannabis next year.

Washington State Liquor Control Board Files Rule Revision For Marijuana Shop Locations

WASHINGTON:  The Washington State Liquor Control Board has announced that it will file an emergency rule revision on October 16th to make a change to the rules which specifies how far recreational marijuana shops must be from schools, child centers, and public parks. [Read more…]

Medical Marijuana Patients Need Protection NOT Policy Rhetoric. Will Congress Step Up?

CALIFORNIA: Last Thursday, Deputy Attorney General James Cole issued a long-awaited memo laying out the U.S. Department of Justice (DOJ) policy on state marijuana laws. At my office at Americans for Safe Access, we were all experiencing a kind of déjà-vu as the emails started flooding in. However, our excitement began to diminish as we read through the details. [Read more…]