Up in Smoke: The many efforts to decriminalize cannabis in Washington seem to be going nowhere

Across the country, attitudes toward cannabis are becoming more permissive and accepting, but partisan gridlock in Congress virtually ensures that legislation to decriminalize marijuana will languish and die in the U.S. Senate.

Last month, the U.S. House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act (MORE) by a narrow 220-204 margin.

In addition to descheduling, the MORE Act would require federal courts to purge convictions for cannabis-related offenses and allow re-sentencing for individuals with federal convictions. And it includes funding for social equity programs in communities that have been hurt most by enforcement of old drug laws.

It also seeks to right some of the wrongs inflicted on American citizens by the decades-long War on Drugs. For instance, it would establish a Cannabis Justice Office to manage an “opportunity trust fund,” that would provide grants and resources for programs, from expungement to community investment to drug treatment.

And people with marijuana-related convictions would be eligible to hold dispensary licenses as part of an equitable licensing grant program. There would also be a community reinvestment grant program to fund job training, reentry services, legal aid, literacy, youth recreation and health education programs.

But it won’t pass the Senate, where previous attempts have failed.

“We see overwhelming majorities of voters saying they want to repeal federal prohibition, yet we fear we won’t be able to get to a threshold of 60 votes in the Senate,” said Mike Robinette, director of the Arizona National Organization for the Reform of Marijuana Laws (AZNORML). “That’s going against what Americans truly want. They are tired of the prohibition of cannabis and how that affects our world.”

Majority of Americans want legalization

National NORML was founded in 1970, the year before President Richard M. Nixon began the modern era of the “War on Drugs” and three years before he created the Drug Enforcement Agency. At that time, 11 states were in the process of decriminalizing cannabis and support for legalization was growing.

But starting with Ronald Reagan’s presidency in the 1980s and into the 1990s, the national policy pendulum swung the other way. Prohibition hit a bipartisan zenith with the “Just Say No” campaign and the enactment in 1986 of the Anti-Drug Abuse Act, which dedicated $1.7 billion to fight the so-called War on Drugs, establishing mandatory minimum prison sentences for many drug offenses.

As a result, nonviolent drug offenses increased from 50,000 in 1980 to more than 400,000 by 1997.

But the tide began to turn when California voters legalized medical cannabis in 1996.

Over the course of the next 25 years, California’s action sparked a trend that spread to a majority of states by 2016. In 2012, Colorado and Washington voters both legalized recreational cannabis use for adults. As of 2022, adult use is legal in 18 states, the District of Columbia and Guam.

In Arizona, the Arizona Medical Marijuana Act passed in 2010, and voters in 2020 approved Proposition 207 to legalize recreational cannabis for adults.

Still, cannabis retains its federal status as a Schedule I drug with “no currently accepted medical use and a high potential for abuse.”

Other drugs on the Schedule I list include heroin, LSD, methaqualone and peyote.

The piecemeal approach to legalization has created many conflicts with federal laws, but now that a majority of states have some type of marijuana legalization, the plant has become a major source of legitimate economic activity nationwide.

In 2020, legal sales across the U.S. totaled $20 billion and are projected to reach $40.5 billion by 2025.

The American Civil Liberties Union estimates the U.S. spends upwards of $3.6 billion a year enforcing cannabis prohibition, with the majority of more than 600,000 annual arrests largely affecting people of color, who are nearly four times as likely to be arrested as their white counterparts.

Black men receive sentences that are 13.1% longer than white men and Latinos are nearly 6.5 times more likely to receive a federal sentence than non-Hispanic whites.

Federal attempts to legalize cannabis are not taking place in a vacuum, as many polls show a majority of Americans are in favor of legalization in some form across generational and political lines.

Polling data recently released by Civiqs found a majority of voters in all 50 states support legalizing marijuana. Support levels range from 52% in North Dakota to 81% in both Vermont and Washington.

And this is hardly the latest polling to show widespread public support for legal cannabis. A 2021 Rasmussen Poll shows 62% of American adults favor legalization, up from 54% three years ago, while 23% are opposed and 14% are unsure. A recent Gallup Poll shows support at an all-time high, with 68% in support, including 83% of Democrats, 50% of Republicans and 71% of independents in favor of nationwide legalization. And a 2021 Harris Poll found 66% of adults in favor, with younger generations more inclined to favor legalization: Nearly 80% of both Gen X and Millennials backed legalizing marijuana, compared to 48% of Baby Boomers. The poll also found that overall support of medical marijuana legalization was 84%.

The American electorate, most elected Democrats and a handful of Republicans are largely in favor of legalizing cannabis. But an evenly split Senate continues to stand in the way of legislative efforts.

“There seems to be a lot of political will to talk about cannabis reform,” Derek Debus, director of military and veterans law at Stone Rose Law in Scottsdale said. “But there doesn’t actually seem to be much in the way of doing cannabis reform.”

Debus, a Marine veteran who specializes in Veterans Administration benefits, helps many veterans with issues surrounding medical marijuana use. He believes the MORE Act would not only help the general population, but would also be a boon to veterans who turn to cannabis to treat a variety of ailments from PTSD, to opioid dependency to chronic pain.

“The MORE Act would protect veteran-owned cannabis businesses from discrimination under different types of programs like the Small Business Act, and establishes Veterans Business Outreach Centers that provide support and advice and in some cases, financing to veterans,” he said. “Before, veteran-owned cannabis businesses were not eligible for any help under those programs. The MORE Act, thankfully, prohibits discrimination to an eligible small business just because it’s related to cannabis.”

Other legislative attempts

In recent years, a number of federal bills to deschedule and decriminalize cannabis have been proposed, passed the House and then run into Mitch McConnell’s (R-Ky.) wall of obstruction in the Senate.

The MORE Act, proposed originally in September 2019 by Rep. Jerrold Nadler (D-N.Y.), was the first cannabis law to find success on a federal level. It sought not only to legalize and deschedule cannabis, but also legislate remedies for the damage done by the War on Drugs.

It passed in December 2020 by a 228-164 margin before dying quietly in the Senate.

In addition to MORE, other measures to legalize and deschedule marijuana have been proposed, as have bills addressing different aspects of legalization from banking to veterans access to research.

One, the Veterans Medical Marijuana Safe Harbor Act, was introduced in April 2021 by Hawaii Sen. Brian Schatz. The legislation has gained broad support, including Arizona Sen. Mark Kelly, who also supports the SAFE Banking Act, which would allow cannabis businesses access to banking services that are now illegal due to federal prohibitions.

“Senator Kelly has supported the Veterans Medical Marijuana Safe Harbor Act and the SAFE Banking Act, both commonsense efforts that would improve lives and livelihoods,” Kelly spokesperson Arielle Devorah wrote in an email to the Arizona Mirror. “Kelly continues to closely evaluate any legislative proposals to nationally de-schedule or decriminalize marijuana and will make decisions based on what’s in the best interest of Arizonans.”

The Veterans Medical Marijuana Safe Harbor Act would allow veterans to “use, possess, or transport medical marijuana and to discuss the use of medical marijuana with a physician of the Department of Veterans Affairs as authorized by a state or Indian tribe, and for other purposes.”

Veterans who qualify for medical marijuana on a state level are currently caught between federal and state law, and are often stigmatized with a “cannabis use disorder” diagnosis that can put them at odds with the VA health care system.

The Veterans Medical Marijuana Safe Harbor Act has not had a hearing or a vote since it was introduced last year.

The Secure and Fair Enforcement (SAFE) Banking Act has been around in one form or another since 2013. In a change of tactics last year, Democrats attached the bill to the National Defense Authorization Act for FY 2022, but it was stripped out before final passage.

In an attempt to move it forward again this year, the SAFE Act has been attached to the America COMPETES Act, an unrelated bill that addresses technology and trade in the U.S.

The legislation would allow licensed cannabis businesses to operate like any other legal business, with access to banking services, including the use of ATMs, credit cards, access to loans and the ability to make deposits and write payroll checks.

Despite the actions of the Senate, the SAFE Act enjoys broad support from business groups, cannabis activists and large swaths of the banking industry, including the American Bankers
Association.

On April 11, the Credit Union National Association (CUNA) sent a letter of support to House leaders Nancy Pelosi (D-CA) and Kevin McCarthy (R-CA), asking that the bill remain attached to the America COMPETES Act.

“A 2015 analysis found that, in the absence of being banked, one in every two cannabis dispensaries were robbed or burglarized—with the average thief walking away with anywhere from $20,000 to $50,000 in a single theft,” wrote CUNA President and CEO Jim Nussle.

Hoisted by their own petard

There may be a point where political triangulation and maneuvering hurt federal attempts, as competing bills receive varying levels of support and those proposing bills seek credit to burnish their electoral possibilities or support members of their own party.

Sens. Chuck Schumer (D-N.Y.), Cory Booker (D-N.J.) and Ron Wyden (D-Ore.) are crafting a long-awaited Senate bill similar to the MORE Act, the Cannabis Administration and Opportunity Act. The bill was supposed to be introduced earlier this month, but Schumer last week said it likely wouldn’t be finalized until August.

The competing bills may see a split in Democratic support. Complicating matters further, Rep. Nancy Mace (R-S.C.) has proposed her own version of cannabis legalization, the States Reform Act.

Mace’s bill relegates much of the control to states, proposes a 3% excise tax, regulates cannabis “like alcohol,” and offers protections to veterans and cannabis business owners.

“In the Senate, they’re not going to get 60 votes,” AZNORML Political Director Jon Udell said. “Especially now that there’s a competing Republican proposal, that’s probably going to make it even less likely that the CAOA or the MORE Act attracts Republicans, because they’re going to want the Nancy Mace version instead of the Democratic version.”

Maybe an easier way

On Oct. 6, 2021, Sen. Elizabeth Warren (D-Mass.) and Booker sent a letter to the Department of Justice asking the agency to use its authority to deschedule and decriminalize cannabis under the Controlled Substances Act of 1970 “in consultation with the Secretary of Health and Human Services.”

“Decriminalizing cannabis at the federal level via this descheduling process would allow states to regulate cannabis as they see fit, begin to remedy the harm caused by decades of racial disparities in enforcement of cannabis laws, and facilitate valuable medical research,” they wrote.

“We urge the DOJ to initiate the process to decriminalize cannabis. Doing so would be an important first step in the broader tasks of remedying the harmful racial impact of our nation’s enforcement of cannabis laws and ensuring that states can effectively regulate the growing cannabis industry, including by assisting small business owners and those most harmed by our historical enforcement of cannabis laws,” the letter concluded.

One month later, Warren appealed directly to President Joe Biden, this time with Sen. Jeff Merkley (D-Ore.), to encourage Biden to “pardon all individuals convicted of nonviolent cannabis offenses, whether formerly or currently
incarcerated.”

“Our country’s cannabis policies must be completely overhauled, but you have the power to act now: you can and should issue a blanket pardon for all non-violent federal cannabis offenses, fulfilling your promises to the American people and transforming the lives of tens of thousands Americans,” Warren and Merkley said in a written statement. “As a candidate for President, you argued that ‘we should decriminalize marijuana’ and ‘everyone [with a marijuana record] should be let out of jail, their records expunged, be completely zeroed out.’ The first and simplest step in the process is a blanket pardon.” 

This article originally ran on arizonamirror.com

This article appears in May 19-25, 2022.