Civil Survival Project Sues Washington State and Counties For Unconstitutional Simple Drug Possession Penalties

WASHINGTON:  Civil Survival Project announced today that it is suing Washington State, King County, and Snohomish County on behalf of participants wrongfully convicted of simple narcotics possession under RCW 69.50.4013. As these participants had been convicted under an invalidated and unconstitutional law, Civil Survival is pursuing the cancellation of all legal financial obligations imposed under the statute, as well as return of all funds paid to date by individuals sentenced for simple possession. Representing Civil Survival and its members are the law firms of Outten & Golden LLP and Frank Freed Subit & Thomas LLP, as well as the Public Defender Association.

On February 25, 2021 in State v. Blake, the Supreme Court of the State of Washington struck down RCW 69.50.4013, the state’s strict liability felony drug possession statute, as unconstitutional. Under this statute, thousands of Washingtonians have been unduly penalized for simple possession of drugs. Drug prohibition has historically had a disproportionate impact on communities of color, putting legally innocent individuals under the duress of crippling debt, in addition to incarceration and other adverse consequences.

Civil Survival’s suit begins the process of remediation for the impacts of criminalization of drug possession and repairing harms against those who have been unjustly punished. Fines and fees are only a part of the injury that Civil Survival members and many others have suffered, but restoring these funds and canceling outstanding debt owed from these convictions is an immediate first step.

“I’ve seen first-hand how families were torn apart in the name of a war on drugs and tough-on-crime policies starting with minor offenses like possession,” said Cory Walster, community organizer for Civil Survival. “Rather than receiving help and wrap-around services [after my first drug conviction], we were given punitive punishment and a criminal record. Since the Blake decision, I have seen people in our community break down in tears thinking about all of the ‘what if’s’ and ‘if only’s,’ imagining what they could have been had they not gotten caught up in this system. Although we cannot change the past, now is the time to begin making things right.”

“As a result of the Blake decision, I have seen hope restored to many of those in the Civil Survival community as they think about the freedom that comes with vacating felony drug possession charges,” said Kelly Olson, policy manager for Civil Survival. “We have to stop criminalizing mental health issues and substance use disorders and treat the underlying trauma people are trying to heal from.”

In recent years, King and Snohomish Counties have been leaders in reducing the number of individuals facing prosecution and conviction for simple possession. These counties have instituted alternatives to prosecution and declined to file many drug possession cases in recognition that substance use issues do not belong in the criminal legal system. Their elected prosecutors recently both testified in support of HB 1499, a legislative proposal to decriminalize simple possession of drugs and instead invest in outreach, treatment and recovery supports for people with substance use disorders. Additionally, King County supported that effort with legislative advocacy. These two counties are defendants, not because they are uniquely responsible, but because the entire machinery of the criminal legal system throughout our state has been engaged in imposition of penalties under this invalid law.  We now need a process to rapidly undo that harm, even in the jurisdictions that commendably have recently recognized that we have been on the wrong path for decades.

“The Washington Supreme Court’s Blake decision is a victory for racial justice and the rule of law,” said Adam T. Klein, managing partner for Outten & Golden LLP. “As noted by the Court, the felony drug possession statute ‘has affected thousands upon thousands of lives, and its impact has hit young men of color especially hard.’ This lawsuit is intended to restore the rights of people – and notably a disproportionate number of Black and Latino people – who were convicted of an unconstitutional and unduly harsh statute that included prison time and severe costs and fines.”

DC Council Chairman Mendelson Introduces Equitable Recreational Cannabis Legislation

DISTRICT OF COLUMBIA:  DC Council Chairman Phil Mendelson – along with Council members Kenyan McDuffie, Charles Allen, Brianne Nadeau, Brooke Pinto, Christina Henderson, and Mary Cheh – introduced the most comprehensive, progressive, and equitable legislation to regulate the sale of recreational Cannabis in the District of Columbia.

“This legislation is the culmination of over a year of work by my office and external stakeholders,” Mendelson said. “It creates a comprehensive regulatory framework for the cultivation, production, and sale of recreational cannabis and most significantly, this bill centers reinvestment and opportunity for people and communities hit hardest by the War on Drugs.”

The “Comprehensive Cannabis Legalization and Regulation Act of 2021” differs from previous iterations of recreational marijuana sales bills in that it establishes:

  1. A Social Equity program that mandates at least half of all licenses to be set aside for Social Equity applicants (defined as residents who have been previously convicted of cannabis-related offenses or have lived ten of the last 20 years in areas with high rates of poverty, unemployment and arrests);
  2. A Cannabis Equity and Opportunity Fund to provide financial assistance to Social Equity applicants. This is especially important given that traditional financing options are unavailable for cannabis and especially difficult for social equity applicants. Thirty percent of tax revenues from cannabis sales would be deposited into this fund;
  3. A Community Reinvestment Program Fund that would provide grants to organizations addressing issues such as economic development, homeless prevention, youth development and civil legal aid in areas hardest hit by the drug wars. Fifty percent of tax revenues from cannabis sales would be deposited into this fund;
  4. A robust public education campaign that will inform District residents of the law and focus on responsible use and harm reduction strategies for residents of legal age who consume cannabis;
  5. Automatic expungement of cannabis-related arrests and convictions, and opportunities for resentencing for individuals currently serving sentences for cannabis-related convictions;
  6. Protections for District residents who legally possess and consume cannabis pursuant to the Act so that they do not lose benefits, employment, or access to other critical resources; and
  7. Authorization for banks in the District to conduct business with cannabis licensees, and allowances for local tax deductions for cannabis licensee business expenses.

Oregon Cannabis Social Equity Bill Introduced

OREGON:  Repairing the harm from decades of inequity from the War on Drugs is the goal of the Cannabis Social Equity Act introduced this week by a coalition of legislators in the Oregon State Legislature. HB 3112 is the culmination of months of work led by former State Rep. Akasha Lawrence Spencer including numerous cannabis companies, the NuLeaf Project, the Oregon Cannabis Association, the Oregon Retailers of Cannabis Association, the City of Portland, Urban League, and law students from Willamette University.

“We came together with a common purpose – to undo and repair some of the harm caused by cannabis criminalization on Black, Indignenious and Latinx communities in Oregon,” said Rep. Lawrence Spence. “This legislation uses cannabis tax revenue to invest in Oregonians who have been unjustly targeted for decades by law enforcement, in an effort to repair some of the generational harm done to their communities.”

Chief sponsors of HB 3112 include Representatives Janelle Bynum, Ricki Ruiz, Mark Meek, Julie Fahey and Senators Lew Frederick and Kayse Jama. Current sponsors include Representatives Karin Power, Pam Marsh and Maxine Dexter.

Jeanette Ward Horton, executive director of NuLeaf Project, has been working with the coalition since its inception eight months ago. NuLeaf Project receives funding from City of Portland cannabis tax revenues and private donations to aid cannabis start up companies with funds, technical assistance and job placement/training.

“We’ve seen the harm to far too many families to not address this issue. Cannabis convictions bring challenges that ripple through families and cause hardship for the children of children whose parents were disproportionately arrested. The loss of jobs, education grants, housing and more that can all stem from a minor cannabis conviction have impacted communities of color for generations. Today Oregon has the chance to undo some of that harm,” said Ward-Horton.

The bill contains three major provisions:

  • Direct investment in cannabis businesses owned by Black, Indigenious, and Latina/o/x people, as well as people convicted of cannabis crimes. Creates investment in home and land ownership, job training, health care, education and other areas determined by the Cannabis Equity Board.
  • Free, automatic expungement of eligible cannabis criminal convictions paid for by cannabis tax revenues as needed. Previous legislation saw less than 200 of 28,000 eligible Oregonians successfully complete expungement.
  • Equity licenses for Black-, Indigenous-, and Latina/o/x  owned cannabis companies with reduced fees and modified requirements to initially qualify. Provides for funding of two OLCC positions to aid in the licensure process, and includes the addition of three license types beneficial for the small businesses owner.

Chief Sponsor and State Rep. Ricki Ruiz said fixing the expungement process is a critical piece of the legislation.

“Less than 200 out of 28,000 Oregonians eligible for expungement were able to successfully complete the process in the past two years. We need to do better,” said Ruiz. “This bill provides us the path and the funding we need to efficiently remove previous cannabis crimes from people’s records and provide them the opportunity to repair their lives from the harm caused by cannabis criminalization. It is a critical step toward restoring the health of these individuals and the communities where they reside.”

Gabe Parton Lee, General Counsel at Wyld, spearheaded the design of the automatic expungement process

“What we clearly see is that those left in the destructive wake of cannabis prohibition have been helped the least by cannabis legalization. Instead, we see a rapidly-growing industry that has largely left behind people and communities who disproportionately suffered under cannabis criminalization,” said Parton Lee, general counsel for Wyld. “We are advocating for the use of cannabis tax dollars to help correct some of these long standing issues of inequity and provide for direct investment into people and neighborhoods most impacted by cannabis prohibition.”

State Rep. Julie Fahey helped drive the creation of the bill when she passed legislation in 2019 calling for a work group to develop a cannabis social equity program.

“This effort has brought together a diverse group of advocates, business owners, and industry partners to develop one of the most comprehensive equity bills in the country – breaking down barriers for BIPOC Oregonians and investing in the communities most harmed by cannabis criminalization. The cannabis industry is a driver of economic opportunity for entrepreneurs in our state, and this bill will help ensure that those harmed by the war on drugs have access to those opportunities,” said Fahey.

A coalition of cannabis companies and trade groups including the Oregon Cannabis Association, the Oregon Industry Progress Association, and the Oregon Retailers of Cannabis Association have all united around this legislation as the key cannabis related bill for the 2021 session. Major sponsors include Groundworks industries, Wyld, Wana and Dutchie with dozens of other cannabis companies, law firms and others supporting the effort.

Michigan Marijuana Regulatory Agency Announces Diversity, Equity & Inclusion Workgroup

MICHIGAN:  The Marijuana Regulatory Agency (MRA) is facilitating a standing Diversity, Equity, and Inclusion Workgroup (DEIW) to continue to advance the proposals of the ad hoc Racial Equity Advisory Workgroup, to empower stakeholders to take ownership in the programs that directly impact their communities, and to continue to guide the Agency on issues related to diversity, equity, and inclusion.

This workgroup is to be held on the last Friday of every month.  Term length will not exceed 24 months.  The terms of the members will be staggered with new members accepted every 8 months.

Individuals interested in participating in the workgroup must send an email to MRA-SocialEquity@michigan.gov with WORKGROUP in the subject line – the body of the email must contain the following information:

  • Your name
  • Mailing address
  • Email address
  • Phone number
  • Occupation
  • Job title
  • The name of the employer or organization that you are affiliated with
  • A brief explanation (no more than 250 words) describing what diversity, equity, and inclusion means to you and the perspective you believe you can bring to this group. Please do not include attachments with your email

The Agency will consider all email requests that meet these requirements, and any additional relevant information when establishing the workgroup. Requests and inquiries made via telephone or to other Agency contacts may not be accepted.

The deadline to email your request to participate in the workgroup is Friday, January 29, 2021 at 5:00 PM. Selections for the workgroup will be announced by Friday, February 12, 2021. If you are chosen for a workgroup, you will be notified directly by the Agency.

NY Governor Cuomo Announces Proposal To Legalize And Create An Equitable Adult-Use Cannabis Program As Part Of The 2021 State Of The State

Proposal to Create the new Office of Cannabis Management to Regulate State Medical and Adult-use Cannabis and Cannabinoid Hemp Programs

Equitable Market Structure to Invest in Individuals and Communities Disproportionately Impacted by Prohibition

NEW YORK: Governor Andrew M. Cuomo today announced a proposal to legalize and create a comprehensive system to oversee and regulate cannabis in New York as part of the 2021 State of the State. Under the Governor’s proposal, a new Office of Cannabis Management would be created to oversee the new adult-use program, as well as the State’s existing medical and cannabinoid hemp programs. Additionally, an equitable structure for the adult-use market will be created by offering licensing opportunities and assistance to entrepreneurs in communities of color who have been disproportionately impacted by the war on drugs. Once fully implemented, legalization is expected to generate more than $300 million in tax revenue.

“Not only will legalizing and regulating the adult-use cannabis market provide the opportunity to generate much-needed revenue, but it also allows us to directly support the individuals and communities that have been most harmed by decades of cannabis prohibition.”

“Despite the many challenges New York has faced amidst the COVID-19 pandemic, it has also created a number of opportunities to correct longstanding wrongs and build New York back better than ever before,” Governor Cuomo said. “Not only will legalizing and regulating the adult-use cannabis market provide the opportunity to generate much-needed revenue, but it also allows us to directly support the individuals and communities that have been most harmed by decades of cannabis prohibition.”

The Governor’s proposal builds on years of work to understand and decriminalize cannabis for adult use. In 2018, the Department of Health, under Governor Cuomo’s direction, conducted a multi-agency study which concluded that the positive impacts of legalizing adult-use cannabis far outweighed the negatives. It also found that decades of cannabis prohibition have failed to achieve public health and safety goals and have led to unjust arrests and convictions particularly in communities of color.

In 2019, Governor Cuomo signed legislation to decriminalize the penalties for unlawful possession of marijuana. The legislation also put forth a process to expunge records for certain marijuana convictions. Later that year, the Governor spearheaded a multi-state summit to discuss paths towards legalization of adult-use cannabis that would ensure public health and safety and coordinate programs regionally to minimize the cross-border movement of cannabis products.

Building on that important work, the proposal reflects national standards and emerging best practices to promote responsible use, limiting the sale of cannabis products to adults 21 and over and establishing stringent quality and safety controls including strict regulation of the packaging, labeling, advertising, and testing of all cannabis products. Cannabis regulation also offers the opportunity to invest in research and direct resources to communities that have been most impacted by cannabis prohibition.

Cresco Labs Publishes Inaugural Seed Annual Report

Report details meaningful contributions towards restorative justice initiatives, community business incubators and educational and workforce development programming

ILLINOIS: Cresco Labs, one of the largest vertically integrated, multistate cannabis operators in the United States, is proud to publish the first annual report for its SEED (Social Equity and Educational Development) initiative. The report highlights the Company’s many achievements over the past year to help create a more diverse and inclusive cannabis industry through SEED’s restorative justice initiatives, community business incubators and educational and workforce development programming. The 2019-2020 SEED Annual Report is available online at crescolabs.com/seed.

Cresco Labs' SEED initiative conducted 13 Community Business Incubator events incubating over 250 individuals for two Illinois application periods (Photo: Business Wire)Cresco Labs’ SEED initiative conducted 13 Community Business Incubator events incubating over 250 individuals for two Illinois application periods (Photo: Business Wire)

“We are proud to have launched the cannabis industry’s first comprehensive social justice and social equity initiative and to report the significant strides the SEED program has made towards the more equitable inclusion of Black and Brown people in cannabis,” said Charlie Bachtell, CEO and Co-founder of Cresco Labs. “As we reflect on SEED’s first year successes, we recognize that this is just the beginning of a long road ahead and a tremendous amount of work is still to be done.” Our goal is to provide the time, know-how and resources to elevate more voices and foster economic opportunities for people from communities disproportionately impacted by prior drug laws. The ability of this industry to reach its maximum potential will be governed by its ability to address the social responsibility components tied to this subject matter. Our SEED team is made up of incredibly talented, hard-working individuals who are building a culture where all Cresco Labs employees are inspired to improve inclusiveness within the cannabis industry. Our SEED initiative supports our vision to be the most important company in cannabis and is helping to build the most responsible and respectable industry possible. Together, we are firmly committed to continuing the progress we’ve achieved this inaugural year into the future.”

The SEED Annual Report outlines the mission of SEED, describes its goals and initiatives, and details the efforts dedicated to the program’s success. Highlights of the 2019/2020 program include:

  • Invested over $1.5M and contributed over 2,200 Cresco Labs staff hours for more than 40 multi-tiered SEED initiatives
  • Sponsored and financially supported 22 restorative-focused events and more than 1,200 individuals seeking expungement of their records
  • Conducted SEED’s inaugural Community Business Incubator that assisted 50 businesses and over 250 individuals in total over two application periods in Illinois
  • Established 8 community and workforce development initiatives and assisted in the development of cannabis industry curriculum with 5 universities and colleges

Cresco Labs’ SEED team was the recipient of the 2020 Bill Leslie Visionary Award from Cabrini Green Legal Aid, a nonprofit established in 1973 to serve legal needs arising from the lack of opportunity, criminalization of poverty, and racial inequity experienced within the Cabrini Green community in Chicago, Illinois. This recognition reinforces the SEED initiative’s effort to build community relationships and do its part to be restorative and inclusive.

In May 2019, Cresco Labs created SEED to address the absence of people, businesses and communities disproportionately impacted by the War on Drugs in the cannabis industry. Its mission is to develop tangible pathways into the cannabis industry for communities impacted by the War on Drugs through the three pillars of SEED: Restorative Justice, Community Business Incubator, and Education & Workforce Development. SEED’s restorative justice programming includes expungement events, lobbying to change the nation’s drug laws, and working to ensure that no person remains in prison for a cannabis conviction. Established in November 2019, Cresco’s Community Business Incubator provides qualifying social equity applicants with the resources, knowledge and guidance needed to successfully apply for adult use dispensary licenses awarded by the Illinois Department of Financial and Professional Regulation. SEED develops educational cannabis programming tailored to communities disproportionately impacted by the War on Drugs, as well as builds collaborative relationships with colleges and universities to develop curriculum, teach classes and host workshops to educate and prepare students for careers in cannabis.

To learn more about Cresco Labs’ SEED initiative, visit crescolabs.com/seed.

DCFS And Illinois Courts Refusing To Follow New Cannabis Anti-Discrimination Law: Parents Risk Losing Children Over Cannabis Use Despite Legalization

By Jay Lindsay, CROSSROAD LEGAL

ILLINOIS: On June 25, 2019, Governor J.B. Pritzker signed into a law sweeping new legislation legalizing personal recreational use of Cannabis in Illinois. Under the law, Illinoisans can now use cannabis not only for medicinal purposes, but also recreationally. The law also prohibits discrimination based on cannabis in certain situations. Specifically, the anti-discrimination provision is strategically drafted to avoid cannabis users from suffering negative or adverse impacts in Illinois family and juvenile courts, including actions by Child Protective Services. Despite passage of this law, DCFS and courts remain unwilling to comply with these anti-discrimination rules.

To fully understand why this is important and how it affects Illinois parents, a little background is necessary.

The Cannabis Regulation and Tax Act of 2019

Effective the first day of 2020, Cannabis became legal for personal use in Illinois. The new law is entitled the Cannabis Regulation and Tax Act, and the personal use provisions are found in the Illinois Code at 410 ILCS 705/10-5 et seq. Under the new law, Illinois residents are legally permitted to use and possess Cannabis and Cannabis-related products. There are, of course, limitations.

POSSESSION OF CANNABIS

  • Up to 30 grams of Cannabis in raw form
  • Cannabis-infused product or products containing no more than 500 mg of THC
  • Five grams of cannabis product in concentrated form 

PRIOR INCARCERATIONS

Under House Bill 1438, which ultimately became the new law last year, the Governor has created a clemency process that will ultimately help to exonerate and clear the records of hundreds of thousands of people convicted of minor Cannabis charges. 

  • Automatic expungement for any possession charge of up to 30 grams
  • Potential clemency for possession of 30-500 grams, but only upon petitioning a court to vacate the conviction.

The Marijuana Policy Project estimates that this will result in an estimated 770,000 overturned convictions. This is perhaps the most notable part of the legislation, because it could effectively re-enfranchise almost a million Illinois residents of things like voting and gun rights. Under current law, drug-related convictions can be used as a reason for the Illinois State Police revoking or denying a Firearm Owners Identification Card (FOID).  Likewise, for felony convictions, many people lose the right to vote. Many of these rights are now likely subject to restoration.

Public Support for Cannabis

Before directly addressing the issue of discrimination, it is worth noting that the majority of Illinoisans support legalization. Even in the most rural and conservative reaches of the state, Cannabis is gaining wide-spread acceptance. According to the advocacy group, Legalize Illinois, the following statistics were reported in relation to resident approval of legalization:

  • Chicago: 77% support and 22% oppose legalization
  • Downstate: 58% support and 40% oppose legalization
  • Statewide: 66% support and 32% oppose legalization

Anti-Discrimination Provision

Now that the background and legislative underpinnings are clear, we turn to the problem at hand.  Under the new law, there’s a specific provision that directly applies to family courts and actions by the Department of Children and Family Services (DCFS). The provision found at 410 ILCS 705/10-30(a) outlines the precise ways that the government may not use a person’s conduct under the statute. Below, the statute is broken into three parts for clarity:

Neither the presence of cannabinoid components or metabolites in a person’s bodily fluids nor possession of cannabis-related paraphernalia, nor conduct related to the use of cannabis or the participation in cannabis-related activities lawful under this Act by a custodial or noncustodial parent, grandparent, legal guardian, foster parent, or other person charged with the well-being of a child . . .

. . . shall form the sole or primary basis or supporting basis for any action or proceeding by a child welfare agency or in a family or juvenile court, any adverse finding, adverse evidence, or restriction of any right or privilege in a proceeding related to adoption of a child, acting as a foster parent of a child, or a person’s fitness to adopt a child or act as a foster parent of a child, or serve as the basis of any adverse finding, adverse evidence, or restriction of any right of privilege in a proceeding related to guardianship, conservatorship, trusteeship, the execution of a will, or the management of an estate . . .

. . . unless the person’s actions in relation to cannabis created an unreasonable danger to the safety of the minor or otherwise show the person to not be competent as established by clear and convincing evidence. This subsection applies only to conduct protected under this Act. 

Juvenile Court Act vs. Cannabis Regulation and Tax Act

In a landmark Supreme Court decision, Justice Sandra Day O’Connor wrote, that there is “a fundamental right of parents to make decisions concerning the care, custody, and control of their children.” See Troxel v. Granville, 530 U.S. 57 (2000).

Moreover, the Court wrote, “[t]he liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court. See id. at 65. 

It is with this context from the Supreme Court that we next must address how Illinois law treats removal of children for abuse and neglect allegations.

Under the Illinois Juvenile Court Act of 1987, DCFS is charged with protecting minors from abuse and neglect. When there is a credible report of abuse, DCFS will investigate the allegations and, if founded, may remove a child from their home, place them into emergency protective custody, then turn the matter over to the local States Attorney for the appropriate county. At this time, the prosecutor will file a petition to adjudicate the minor a ward of the court. If successful, the child will be placed into foster care, while a provider agency, such as Caritas or Lutheran Child and Family Services (LCFS), will take over managing the casework associated with the matter. A service plan is created, and parents must complete the service plan and meet all requirements of the agency before the children can be returned.

Under the Juvenile Court Act, 705 ILCS 405/2-18(2)(f), the court deciding the matter at the adjudicatory hearing may consider:

proof that a parent, custodian or guardian of a minor repeatedly used a drug, to the extent that it has or would ordinarily have the effect of producing in the user a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence of neglect.

Under the Juvenile Court Act drug is not a per se or automatic reason for removal of children. Drug use must create a “substantial” effect on the parent, to the point that the Department feels that the parent cannot properly care for a child. In practice, this is very different, however. Typically, ANY use will be enough for DCFS to remove a child. Historically, this included Cannabis. 

Breaking it Down

Since there are now two potentially conflicting laws, Courts are left to decide whether or not they will follow the new anti-discrimination provision by simply disregarding evidence of Cannabis use, or whether they will continue to view Cannabis as a drug that supports removal of minor children.

Case Examples from Practice

 The author is a former Assistant Public Defender for a rural county in downstate Illinois. In the first year since legalization, numerous cases have come before the court with little evidence of drug use except minor Cannabis possession or positive THC test results. Consider the following* examples:

  • Young mother has argument with boyfriend, and children are removed due to allegations of domestic violence. After 6 months, all services are complete. There was no evidence of illegal drug use, alcohol abuse or other substance-related issues. While under oath, a case worker testified that the sole reason why the children have not yet been returned to the mother from May 2020 to November 2020 is her positive drug tests for THC. At a hearing, one child was returned to a father, in part due to the fact that mother was alleged to have continued using Cannabis.

Rationale – According to DCFS, the mother had a service plan that required her to remain free from all drugs, including Cannabis; therefore, it is the State’s position that even though Cannabis is legal, she is prohibited from using it.

  • Judge orders young mother to receive overnight visits and have children returned within 30 days, due to minimal nature of the case. DCFS refuses to honor the court’s order, based on allegations that the mother is still using Cannabis. A single positive test for THC from several months earlier used to argue that she is unfit to have the children go home. The court allowed the matter to be continued for another 90 days and decided not to return the child.

Rationale – According to DCFS, there were concerns about the mother using Cannabis, because she is underage (18) at the time, and thus use would be considered illegal.

  • Young mother has a messy home and is accused of being under the influence while caring for her small child. Notably, under oath, the police officer repeatedly referred to discovering evidence of illicit drug use in the home. On closer cross-examination, it turned out the mother had an empty vape pen on her nightstand. No Cannabis was located on the property. The mother did admit to using Cannabis at times, but no evidence was provided to indicate she had used Cannabis that day or that she was in possession of Cannabis. While other reasons were used for removing the children, such as the condition of the home, this was a critical piece of evidence heard by and relied upon by the court.

Rationale – According to DCFS, simply having marijuana paraphernalia in reach of a minor child was sufficient to remove the children, as it indicated a drug addiction.

Facing the Dilemma Head-On

With these examples squarely before us, it’s important to note a few things. First, possession of 10 grams or less of Cannabis by a person under the age of 21 is considered a civil violation, punishable by a fine of between $100 and $200. See 720 ILCS 55/4. In fact, possession doesn’t even reach Class A misdemeanor status (comparable to a first-offense DUI) until a minor possesses between 30 and 100 grams of Cannabis. With this in mind, it’s difficult to understand how DCFS and the courts can deprive a parent of such a fundamental liberty as the right to raise one’s own child over such a minor offense. Likewise, the Cannabis Regulation and Tax Act clearly outlines that Cannabis use should not be considered in these court proceedings. The law makes no exception for age of the user.

Where We Go Next 

Ultimately, the problem is that although Cannabis has been fully legalized for recreational use, judges and DCFS are still very much using Cannabis as the sole reason (or at a minimum, a substantial reason) for removing children from parents. And once removed from their parents, children are often kept in foster care for years. If the parent tests positive for Cannabis even once, the courts and DCFS will invariably argue that the parent is failing to make reasonable efforts and substantial progress toward the return of the child. This key language is used to eventually terminate parental rights for good.

It is imperative that the fundamental liberties of parents in Illinois be protected at all costs. As Justice O’Connor wrote in 2000, the right to raise one’s own children is perhaps the oldest recognized liberty in our country’s history. Indeed, this fundamental right is being breached every day in courtrooms across the state, because the clear text of the law is being ignored. Despite Illinois passing a law that prohibits consideration of Cannabis use or possession in DCFS proceedings and juvenile court hearings, state agencies and judges remain completely unwilling to disregard it. In doing so, one could certainly argue that the courts are re-criminalizing Cannabis. In fact, the outcome is that one can lose their children forever for something that amounts to little more than a civil fine if done underage. Imagine losing your children for burning without a permit or littering.

It’s high time that the Illinois legislature put some teeth in the law by creating some form of penalty for state agencies that disregard the law. It also raises the possibility that some parents may have significant civil actions against the State of Illinois where DCFS and provider agencies disregard the law and remove children due to Cannabis use in the home. Illinois NORML continues to advocate and fight hard for the residents of the state every day.

*Due to confidentiality of juvenile court records, the author is unable to discuss specific cases or names of participants.


Jaye R. Lindsay is the founding attorney for CROSSROAD LEGAL, a general practice law firm based in O’Fallon, IL.

CEI Leads Coalition Letter Supporting MORE Act Provision To De-Schedule Cannabis

Dear Speaker Pelosi, Leader Hoyer, Leader McCarthy, and Whip Scalise:

On behalf of the many of Americans whose views and values our organizations represent, we respectfully urge you to support efforts to remove cannabis from the Controlled Substances Act. While we oppose many aspects of the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, we support its provision to de-schedule cannabis, which would restore the right to decide how to regulate the substance to the people and their state representatives. The undersigned organizations agree that this action is an important step toward undoing the harms caused by the misguided drug war and protecting our nation’s principle of federalism.

In the past election, voters in five states authorized medical cannabis use, recreational use, or both. In fact, every cannabis-legalization ballot measure throughout the country was approved by voters, bringing the total number of states that have legalized medical cannabis to 35 plus the District of Columbia and the number of states that have legalized recreational cannabis use for adults to 15, along with the District. In fact, all but two states have legalized or decriminalized cannabis in some form, properly adapting state policies to reflect the needs and opinions of their constituents. Yet, such responsive governance is hampered by the fact cannabis remains federally prohibited.

Congress has recognized the need to resolve this conflict for many years. Amendments to prevent federal interference in state cannabis regulation enjoy a long history of support among both House Republicans and Democrats. These measures can give states some flexibility to set policies in accordance with the will of their people. But the dual legal status of cannabis has created confusion and put the welfare of many citizens and businesses in jeopardy.

The federal prohibition has excluded small cannabis businesses from many of the financial and legal services or benefits afforded to other industries. The conflict also creates hazards for consumers of legal cannabis products, extending to issues of employment, housing, property rights, firearms purchasing, and civil asset forfeiture, among others. For example, patients who wish to participate in their state’s legal medical marijuana program must choose between their medicine and owning a gun, because the Gun Control Act of 1968 prohibits anyone who uses controlled substances from possessing guns or ammunition. Only Congress can resolve this conflict and there is strong, bipartisan public support for such action.

According to a November 2020 Gallup poll, 68 percent of all Americans believe the use of marijuana should be made legal, including 52 percent of Republican voters. There is even greater support for allowing states to make the decision without federal interference. A 2017 CBS News Poll found that 64 percent of Republican voters, 76 percent of Democrats, and 72 percent of independents opposed federal attempts to stop states from legalizing cannabis.

The undersigned organizations vary in our opinions on the specifics of cannabis legalization, but we are in strong accord when it comes to whether the federal or state governments should have the power to make such decisions. Our Constitution limits federal power and leaves most issues of law enforcement to the individual states for good reason. We are a nation of diverse backgrounds, opinions, and values. State authorities are best placed to understand the needs of their populace and must be free to decide how best to protect public health and safety and direct limited resources toward those priorities. What works for California may not be appropriate for Utah and vice versa. The federal government need not endorse one approach or another nor condone cannabis use; it needs only to respect the states’ authority to choose how best to regulate cannabis.

As a coalition of groups and individuals supporting free market solutions and the protection of essential constitutional principles, we strongly urge you to respect our nation’s federalist structure and support the MORE Act’s provision to de-schedule cannabis.

Sincerely,

Michelle Minton
Senior Fellow
Competitive Enterprise Institute

Andrew Langer
President, Institute for Liberty

David Williams
President
Taxpayers Protection Alliance

Arthur Rizer
Director of Criminal Justice & Civil Liberties Policy
R Street Institute

Curio Wellness Launches Investment Fund To Combat Diversity And Inclusion Challenges Within Cannabis Industry

$30 Million in Capital will Provide 50 Diverse Entrepreneurs with Up to Ninety-Three Percent of the Capital Needed to Open a Curio Franchise in any one of eight states.

MARYLAND: Curio Wellness today announced a new funding program that will provide start-up capital for minority business owners to open their own Curio Wellness franchise location. Created for women, minorities and disabled veterans, Curio Wellness’s investment fund (the Fund) will allow the medical cannabis and wellness company to further its goal of serving patients with safe, effective and reliable cannabis-based medicine in multiple states through its unique Wellness Center retail business concept. A legally separate but affiliated entity from Curio Wellness, the Fund will connect diverse investors with up to 50 aspiring women, minority and disabled veteran entrepreneurs, providing $30 million in capital funding.

“In looking at the systemic barriers that women, minorities and disabled veterans face in accessing capital, we decided to develop a solution that directly addresses this massive economic disparity,” said Michael Bronfein, CEO. “The Fund provides qualifying entrepreneurs with the investment capital they need to become a Curio Wellness Center franchisee, while ensuring their success through our best in class business operations.”

Banks and other traditional financing sources generally do not provide equity, capital or loans for cannabis start-ups. While this hurts all potential cannabis business owners, it disproportionately impacts women, minorities and disabled veterans. Through the support of committed and diverse investors, the Fund will eliminate the most significant barrier preventing diverse participation in this burgeoning, rapidly growing industry: a lack of capital in concert with a proven business model and brand.

The Fund will invest in up to 50 women, minority and disabled veteran entrepreneurs seeking to open a Curio Wellness franchise location in states with thriving medical cannabis programs. The $30 million Private Equity Fund will expand diversity and enable economic empowerment by providing up to ninety-three percent of the start-up capital needed to launch a branded dispensary. Eligible entrepreneurs, through partnership with the Fund, will be enabled to launch a franchise as the majority owner from day one and enjoy a clear pathway to full ownership as a franchisee.

“The Fund will expand diversity and enable economic empowerment for entrepreneurs who otherwise would be locked out of the rapidly growing field,” said Jerel Registre, Director of Business Development at Curio Wellness and Managing Director of the Fund. “Our diverse set of entrepreneurs will repay the startup loans with their portion of the dispensary earnings, resulting in 100% ownership as a franchisee over time.”

The application process to become a Curio franchisee is expected to open in early 2021 as Curio is approved to establish franchises. The Fund will soon announce its first closing and is expecting to have a final closing before year end.

Massachusetts Cannabis Control Commission Approves Final Adult Use, Medical Use of Marijuana Regulations and Rescinds Colocated Regulations

MASSACHUSETTS: The Cannabis Control Commission (Commission) today approved new medical- and adult-use regulations and phased out 935 CMR 502, Colocated Adult-Use and Medical-Use Marijuana Operations, after bringing sufficient parity to the medical- and adult-use regulations.

“I’m excited that the revised medical- and adult-use regulatory revisions poise the Commission to make significant progress in our mission and statutory mandates on equity, patient access, and public health and safety,” Chairman Steven J. Hoffman said. “While we’ve made tremendous headway over the past three years, we now turn to critical work to implement new provisions, including; the increased caregiver/patient ratio, development of guidance documents, rollout of the Delivery Operator application, and a host of provisions establishing a more equitable and safe industry.”

In the coming weeks, the final regulations will be filed with the Secretary of State’s Regulation Division for promulgation and published on the Commission’s website.

Approved policies include:

Medical Use of Marijuana Program

  • Optimizing Patient access and preserving public safety by:
    • Allowing Caregivers to care for up to five Patients with a Canopy not in excess of 500 square feet;
    • Clarifying that Caregivers may seek a waiver to care for more than five Patients but cannot exceed the 500-square-foot limitation;
    • Preventing perceived risk of diversion by requiring Caregivers to create a log-of-growing and make that log available to the Commission upon request;
    • Broadening the types of physicians who can serve as the second physician making the recommendation for pediatric patients;
    • Requiring Certifying Health Care Providers (Providers) to have a plan to provide discounts to low-income Patients;
    • Allowing Patients with certain hardships to renew every two years instead of one year;
    • Permitting Patients to cultivate up to 12 flowering plants without hardship cultivation, and if more are needed, requiring hardship cultivation;
    • Allowing certain out-of-state Patients to be certified and registered as a Patient in Massachusetts; and
    • Restricting Caregivers from participating in paid advertising.

Equity Programming

  • Promoting a more inclusive and diverse industry by:
    • Waiving all Delivery application and license fees for Certified Economic Empowerment Priority Applicants (EEA) and Social Equity Program (SEP) participants in their first year of licensure under the exclusivity period;
    • Reducing annual license fees by 50%, or to $2,500, for EEAs and SEP participants upon renewal and all subsequent years for applicants;
    • Expanding SEP eligibility to certain categories of individuals and EEAs;
    • Requiring majority ownership by SEP participants in order to access license-related benefits, and potentially expanding these program benefits to microbusinesses and minority-owned, veteran-owned, and women-owned businesses; and
    • Clarifying that individuals who are EEAs, whether on their own or as part of a business entity, can apply as part of a new entity with EEA status so long as it continues to meet three or more of the six criteria, at least one of which shall be a majority-equity-ownership criterion.

Delivery

  • Increasing adult-use access and evolving the Delivery license type by:
    • Approving the Delivery Operator license type, which allows licensees to purchase wholesale Finished Marijuana Products with stringent requirements to warehouse;
    • Clarifying the statutory allowance of up to three Retail licenses and the regulatory allowance of up to a combined total of two Marijuana Courier and/or Delivery Operator licenses;
    • Extending the initial exclusivity period to three-years;
    • Allowing Third-Party Technology Platform Providers to contract with an unlimited number of Delivery Licensees;
    • Authorizing Delivery Operator Licensees to white label, or affix a product label that includes the branding (name and logo) of a specific Marijuana Establishment (ME) to a finished marijuana product that was previously produced and packaged by a licensed Product Manufacturer, Cultivator, Microbusiness, or Craft Marijuana Cooperative for sale to consumers;
    • Allowing Delivery Licensees to sell marijuana accessories and ME-branded goods and non-edible items directly to consumers; and
    • Automatically converting existing Pre-Certified “Delivery-Only” applicants to Delivery Courier Applicants.

Ownership & Control

  • Tightening stringent ownership and control measures further by:
    • Requiring EEAs to report to the Commission all changes of ownership and control and upon renewal and certifying to the Commission that the requisite ownership and control has been maintained by the requisite class of people identified on the EEA’s certification;
    • Preventing monopolies with the addition of safeguards between Third-Party Technology Platforms and Delivery Licensees by explicitly prohibiting:
      • monopolization or attempts at monopolization;
      • inducements;
      • direct or indirect investments from Third-Party Technology Platforms; and
      • restricting determinations of product and licensee placement on an app to objective, customer-oriented criteria.
    • Updating the definition of Persons or Entities with Direct Control by encompassing the equivalent of a Director in a business entity such as a Limited Liability Company, which has Managers in lieu of a Board of Directors, and setting a specific dollar amount with respect to what the Commission considers “significant contracts;” and
    • Confirming that EEAs hold majority ownership (51% or more) over the license to maintain priority status.

Product Database

  • Ensuring that the public is knowledgeable of the hallmarks of legally sourced products, preventing underage access, and lowering the risk of purchasing illicit products by adopting a requirement that Marijuana Establishments, including Delivery Operators, and MTCs comply with the Product Database requirement, just as adult-use licensees must.

Advertising and Branding

  • Modifying advertising and branding regulations by:
    • Allowing of branding sponsorships at certain events, with continued prohibitions on activities that target underage participants or entrants; and
    • Approving targeted advertising through mechanisms such as geofencing, provided they retain documentation of audience composition data related to these marketing activities.

Testing

  • Increasing testing accountability for licencees by:
    • Allowing marijuana products that fail initial contaminant screens to be:
      • Reanalyzed;
      • Remediated and retested by at least the original Independent Testing Laboratory, and a different Independent Testing Laboratory; or
      • Licensees may attempt remediation of a batch that has failed a second test prior to disposal or destruction.
    • Adding new pesticides to the list of pesticides currently required of Independent Testing Laboratory protocols; and
    • Requiring continued testing for vitamin E acetate and a secondary screen for heavy metals from finished vapes.

Video recordings of the Commission’s previous policy discussions and public hearings regarding the new regulations are available on Facebook and YouTube.