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Adam Sulkowski: California's Pot Biz "Wild West" May End, Massachusetts Could "Head It Off At The Pass"


Legal marijuana commerce – to some extent a reality in 24 states and the District of Columbia – may be the fastest growing industry in the United States. Regardless of what we think about pot use, these facts beg the question: if voters continue to push for legalization, what is the best way to end prohibition of a popular business activity?

Should government tax-and-regulate cannabis as we do alcohol and tobacco? Or is it better for the pot trade to exist in a regulatory vacuum with no oversight? And should we continue to pay to keep people imprisoned for non-violent pot-related convictions after legalization?

News of the last few days and impending events in the next 14 months, especially in California and Massachusetts, should be making us all pause and give these questions some thought.

As I write this, California may be ending almost two decades of their “Wild West” approach to marijuana businesses. Californians voted in 1996 to legalize pot for medical purposes, but as of September 2015 there is still no state regulatory framework for its share of what could be a $3 billion national industry.

In Massachusetts, our elected representatives have the chance to proactively act on a bill that would make us the first state to fully legalize (but tax and regulate) use of marijuana through a detailed and coherent piece of legislation rather than direct citizen action on a ballot initiative.

In both Massachusetts and California, voters may see a ballot question on legalizing recreational marijuana use in November of 2016.

This piece focuses on Massachusetts, with the aims of highlighting some features of Bill No. 1561 and catalyzing some thought about what is our best way forward. The 35-page proposed law is actually quite readable, clearly and thoroughly thought-out, and the first pages lay out the logic for why the 15 listed sponsors see the legalization, regulation, and taxation of the marijuana industry as a more pragmatic public policy. While it may not presently appear likely to pass and be signed into law, these features of the Bill are nonetheless noteworthy:
– Establishment of a Cannabis Commission to provide oversight.
– Licensing of retail and café locations (the latter of which would not be allowed to serve alcohol).
– Comprehensive labeling that includes, among other things, the strength (measured in 10-mg units of THC content known as “K units”), locations of cultivation and processing, cannabinoid profile, statement of whether the package contains genetically-modified organisms, and a health-and-safety warning.
– Legalization (under Massachusetts law and that of its political subdivisions) of cultivation, processing, having, and using marijuana for personal use, plus the transportation of up to ten ounces of marijuana.
– Protection from discrimination under state law for having consumed or having been convicted of a marijuana-related offense, except when such failure to discriminate in a proceeding would result in someone losing a monetary or other benefits under federal law, or unless there is clear and convincing evidence of the endangerment of a minor.
– A ban on any entity or person holding more than three licenses.
– Detailed requirements of license applications (including, for example, security plans, a residency requirement, a tax delinquency check, and proof of permitting and/or compliance with local zoning ordinances).
– Allowance of municipalities to establish a role for themselves in, for example, the review, suspension, and revocation of licenses and oversight of cannabis operations.
– A taxation plan, with the payment and proof-of-payment being the duty of processors.

However, of all the Bill’s provisions, perhaps the most provocative are saved for almost the end:
– A plan for the expungement of records of arrest, detention, conviction, and incarceration related to marijuana; the plan specifies that candidates on employment applications may enter “no record” and that similarly state officers will report “no record exists” when asked by employers screening job candidates.
– A plan for the prompt review of all state and county prisoners to identify those held for conviction or probation violation and their release if there can be shown no reasons for their detention other than those connected with marijuana.

This deliberate plan to free – and expunge records of – those involved in purely marijuana-related incidents would put Massachusetts ahead of all other state governments that have been following-up on popular referendums. Colorado has not freed its prisoners serving time for marijuana charges, nor has Washington (though it seems to have come close) nor Alaska (which ranks surprisingly high in terms of pot-related incarceration rates). The Bill would even put Massachusetts ahead of recently updated Oregon law, which will still characterizes certain marijuana-related offenses as criminal misdemeanors.

The one other obvious precedent for ending the criminalization of a popular business activity in the US – the end of Prohibition – does not provide a better model to follow. Apparently, it was largely left to the discretion of governors to grant clemency at the state level (federal incarceration was not common for purely alcohol-related crimes).

In comparison with these alternative approaches – including the 19-year “Wild West” era in California – Massachusetts’ Bill 1561 has the key advantage of being proactive (hence the title of this piece) and coherent: a thoroughly thought-out, logical, pragmatic, fair, and comprehensive framework for bringing a common-but-illegal business activity out of the shadows and into the realm of permissible-but-taxed-and-regulated commerce.

When invited to comment, one of the lead sponsors of the proposed Massachusetts law, State Senator Patricia Jehlen, confirmed the reasoning above and offered the following statement: “H.1561 creates a framework for Massachusetts to legalize, regulate, and tax marijuana. There are two ballot questions for the 2016 election to fully legalize marijuana in Massachusetts. The Commonwealth has already seen two separate ballot questions on marijuana pass overwhelmingly. A ballot question is too blunt an instrument to establish the complex system necessary to legalize marijuana in a transparent, responsible, and safe manner. H.1561 will allow a full and open legislative debate on this subject, providing an opportunity for policymakers to receive input from a wide variety of stakeholders. Additionally, Senate President Rosenberg created a special committee to investigate how and if the state should legalize marijuana, establishing a structure for the legislature to examine the issue in depth. If marijuana is going to be legalized in Massachusetts, we should craft the law properly through an open and deliberative legislative process.”


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