Federal Budget Protections for Medical Marijuana Growers

By Sean Hyde, first-year student at the University of Washington School of Law.

Image used under the Creative Commons Zero License

The barrier standing between state law compliant medical marijuana growers and prison is money, but not because they need a pricey attorney to fight back. The federal budget has been at the top of headlines the past several months as Congress fights to decide what programs get funded for the rest of fiscal year 2018. The resolutions that have kept the spending at the status quo, until the final deal reached on February 7th, upheld a safeguard in the Federal budget under the Rohrabacher amendment. The amendment, or rider, says that the Department of Justice (DOJ) can’t spend any funds to interfere with the medical marijuana laws of the named states (almost all of them). This sounds like very good news, but it isn’t technically as good as you might initially think.

The manufacture, distribution, and use of medical marijuana is still a federal crime, so it’s under the DOJ’s jurisdiction to enforce those laws. The rider has not prevented them from filing new charges against violators, but it has had some efficacy in the 9th Circuit in halting prosecution. A 2016 case compelled an evidentiary hearing to allow the defendant to show they were strictly compliant with state law (US v. McIntosh). Once outside of those laws, even on small technical details, the rider doesn’t apply, and the DOJ can continue to fund the prosecution. But if you are fully compliant with state law, then you’re home free, right?

Unfortunately, the lack of funding doesn’t necessarily require the DOJ to drop the charges against you. There is no indication that they will have to release any seized plants, or to reimburse you for the expense incurred while defending the charges. It could be argued that keeping case files, storage of evidence, and review of case management systems constitutes spending that interferes with the ability of the state to implement laws. But that argument has not come up so far as my research has taken me. And who knows, maybe this rider has kept people from being arrested.

Last week the 9th Circuit Court of Appeals in Seattle heard a post-conviction appeal requesting an evidentiary hearing under the McIntosh rule. The contention was that the lower court had expressly forbidden the use of Washington State law as an affirmative defense against prosecution, so evidence was not provided at trial to support compliance. Presumably, if the evidentiary hearing finds that the defendant was in strict compliance with state laws, then the prosecution was pursued when it should have been prohibited for a lack of funding. It’s not clear what remedy would be available if the evidentiary hearing found that the defendant was in strict compliance with state law. If the court ordered release of the defendant from prison, aren’t they just postponing his incarceration if and until Congress turns the tap on for the DOJ again?

The problem here is a temporal one. In a strictly technical sense, the DOJ shouldn’t have funding to prosecute before there is an evidentiary hearing to determine compliance. Because they have to spend money to find out if they have money to spend, this part of the process is unavoidable. This is why the rider is only a half-measure solution. What if you continue following the state laws and they add those acts to the previous charges, in a way “allowing” you to continue illegal behavior which they will later charge you for? As it is now, there is no answer to that question.

For now, the Rohrabacher amendment is in place until March 23rd. It remains to be seen what Congress will do for the rest of FY18 and beyond.

Vacating Misdemeanor Pot Convictions: Seattle’s Necessary But Insufficient Step Toward Restorative Justice Says Mayor Durkan

By Jevan Hutson, first-year student at the University of Washington School of Law.

Image used under the Creative Commons Zero License

Following similar announcements in San Francisco and San Diego, Seattle became the latest major U.S. city to vacate past pot convictions. Earlier this month, the city of Seattle moved to vacate all misdemeanor pot possession convictions that were prosecuted before the legalization of recreational marijuana in 2012.

Highlighting a report from the Drug Policy Alliance, Mayor Durkan’s office said  “[m]arijuana possession arrests in Washington rose sharply . . . from 4,000 in 1986 to 11,000 in 2010, totaling 240,000 arrests . . .” and that “[i]n Washington State, African Americans were arrested at 2.9 times the rate of whites. Latinos and Native Americans were arrested at 1.6 times the rate of whites.”

As a step toward redressing the disparate impact of the war on drugs on communities of color, Mayor Jenny Durkan and City Attorney Pete Holmes estimate that between 500 and 600 criminal convictions will be erased from court records. The cases were prosecuted between 1997 and 2009, which represents the period when Seattle’s municipal court had authority to prosecute misdemeanor pot cases. Before 1997, misdemeanor marijuana prosecutions were handled in county court, where city officials have no jurisdiction.

Unlike the San Francisco District Attorney’s Office, which will be reviewing, recalling, and resentencing upwards of  4,940 felony marijuana convictions dating back 43 years, the Seattle City Attorney’s Office does not oversee felony marijuana convictions. In Seattle, felony marijuana convictions are handled by King County Prosecutor Dan Satterberg. Despite being sympathetic to the city’s initiative, Satterberg says his office does not have the resources to vacate or reduce all past convictions:

“If a case is more than three years old, we have to go to the warehouse where we hold our old files, pull them out, and figure out if the felony was a $10 sale or a 1,000-plant grow house,” Satterberg said. “If the county wanted to make this a priority and devote some resources to it, it could be done, but I don’t want to do it at the expense of the mainline criminal cases that are coming in every day.”

Despite being at the forefront of marijuana legalization, Seattle’s latest efforts follow the lead of cities like San Francisco, San Diego, and Oakland. Although Seattle’s move to vacate misdemeanor pot possession convictions is an important and necessary step forward, Mayor Durkan highlighted how it is alone insufficient to redress the historical injustices of the war on drugs on vulnerable and minority communities:

“Addressing decades of unjust convictions – and particularly the damage wrought on communities of color – won’t happen overnight. We must provide more effective alternatives to prosecution and incarceration through drug and mental health courts, restoring rights and supporting re-entry.”

Beware Fraud in Cannabis Investment

By Jeff Bess, third-year student at the University of Washington School of Law.


State-legal cannabis is a booming business and further state-level moves toward legalization and regulation are likely on the way. Though legalization has most famously resulted in economic growth and increased state and local tax revenues, it has also come with its fair share of problems. As Seattle-based cannabis business attorney Hilary Bricken wrote earlier this month: “[L]ike any new and high growth industry with complicated and constantly changing rules and regulations, the marijuana industry is chalk full of scammers and con artists.” A recently reported, ongoing cannabis fraud investigation in Oregon – the first of its kind in the state – illustrates one way that less-than-scrupulous investment in the cannabis space can potentially present significant pitfalls for investors and entrepreneurs alike.

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On the DEA’s Decision to Not Reschedule & Open Up Research

By Sam Méndez, Executive Director of the Cannabis Law and Policy Project

At a month old, the news has already long been out. In a press release on August 11 the U.S Drug Enforcement Agency (DEA) declined requests to reschedule marijuana under the Controlled Substances Act, along with opening up an important avenue to further marijuana research. The decision to not reschedule is no surprise to me, as I had predicted this back in April. The DEA has had a singular stance on this issue for 45 some-odd years, and just because there’s been reform at the state level and a change in public sentiment towards the substances does not mean the federal government will be so quick to reform its laws. A mere 9 months ago DEA Chief Chuck Rosenberg called the idea of marijuana being considered medicine a “joke,” so predicting a lack of policy reform wasn’t too difficult.

Image in public domain

Image in public domain

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CLPP’s 2nd report for WSLCB is out, concerning cannabis-infused edibles & access to children

By Sam Méndez, Executive Director of the Cannabis Law and Policy Project

Today our second report for the Washington State Liquor & Cannabis Board (WSLCB) was released, announced by UW Today. The report is titled “Concerning Cannabis-Infused Edibles: Factors That Attract Children to Foods” and it seeks to provide WSLCB with a research foundation for regulating cannabis-infused edibles with children in mind, supporting some of their already established policies on the subject and providing the potential for new ones.

Photo: leafscience.com

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CLPP to launch fundraising campaign with Snoop Dogg at Vela

By Sam Méndez, Executive Director of the Cannabis Law and Policy Project


A lot has happened in the last couple of weeks, with the [DEA’s announcement] that they won’t reschedule marijuana but will allow new entities to produce it for research purposes, ending the University of Mississippi’s monopoly on that front. We owe at least one blog post on those issues.

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CLPP hosted delegation from Jamaica’s Cannabis Licensing Authority

By Sam Méndez, Executive Director of the Cannabis Law and Policy Project

Late last month the Cannabis Law & Policy Project had the pleasure of hosting Jamaica’s Cannabis Licensing Authority (JCLA) here at UW Law to have a conversation with a few local experts about cannabis legalization. They were brought to us by Washington Office for Latin America’s John Walsh, and we were joined by attorneys Mitzi Hensley Vaughn (Greenbridge Corporate Counsel), Christine Masse (Miller Nash Graham & Dunn), and Robert McVay (Harris Moure). The full list of the JCLA representatives are below.

© Cannabis Law & Policy Project

© Cannabis Law & Policy Project


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Our Canopy Report’s Data Available + A Few Reflections

By Sam Méndez, Executive Director of the Cannabis Law and Policy Project


Our report titled “Estimating Canopy Size for the Washington Medical Marijuana Market” was released back on May 12, 2016, and yesterday the anonymous survey data was made available on our website (see the heading on the right titled “Canopy Study Data”). We received a request via email to provide this data, and provided that person with the data. At that time, in the interest of transparency we figured it best to make the data available for all and easy to obtain, thus we have done so.

To recap, the report estimated that between 1.7 and 2 million square feet of canopy space (meaning, square footage of marijuana plants) would satisfy the current medical marijuana demand in Washington State. The LCB currently has allotted 12.3 million square feet of canopy for the entire regulated marijuana market, so we concluded the current allotment is enough to satisfy the current demand for marijuana, both medical and recreational, for the time being. Continue reading

Big Changes to WA MMJ Rules Come Online July 1

By Jeff Bess, third-year student at the University of Washington School of Law.

File:Discount Medical Marijuana - 2.jpg

Say goodbye to the familiar green cross.

Big changes are coming to medical marijuana in Washington state beginning tomorrow, July 1st. That is when the Cannabis Patient Protection Act (CPPA), passed by the state legislature in 2015, will come into full effect. The law, which has been gradually rolled out since its passage, is the culmination of efforts to fold Washington’s medical marijuana program – established in 1998 – into the recreational system created following the passage of I-502 in 2012. The changes mark a profound shift in the regulation of medical marijuana in Washington that will result in a fundamentally different marketplace with significant ramifications for medical marijuana patients, producers, and dispensaries.

In the short-term, the transition will likely be rocky. The most immediate effect of the new rules will be the closure of nearly all existing medical dispensaries in Washington. This is because medical marijuana dispensaries were largely unregulated under prior law and not required to be licensed by the Liquor and Cannabis Board (LCB). Now, in order to reopen, medical marijuana dispensaries will have to go through the licensure process and conform to the same strict regulations as recreational dispensaries – a potentially significant hurdle for medical operations used to the informal status quo and unfamiliar with the process. Though LCB has already issued a number of licenses to “medically endorsed dispensaries” (a new term of art found in the CPPA), it will take time before they are up and running and even longer to match the output of the previous system. In the meantime, medical marijuana patients will have to go to licensed recreational dispensaries or continue to produce their own marijuana in accordance with state law.

Once the dust settles, here is what to expect:

New limits on medical marijuana sources and suppliers:

  • Medically endorsed marijuana stores must be licensed by the LCB
  • Additional restrictions on collective gardens authorized under earlier law

New marijuana taxes. Medical marijuana patients should note that, while they may be exempt from sales and use taxes, they will still be subject to the 37% excise tax on all marijuana products. Customers of medically endorsed marijuana stores are, however, exempted from certain taxes as follows:

  • No sales tax is due on medical marijuana purchases of products purchased by patients with a Washington medical marijuana card and a condition approved by the Department of Health (DOH)
  • No sales tax is due on medical marijuana purchases of low-THC products purchased by patients with a Washington medical marijuana card
  • No sales tax is due on medical marijuana purchases of high CBD products purchased by any patient

For more information on the Cannabis Patient Protection Act, check out Governor Jay Inslee’s FAQ and LCB’s information page on the law.


Photo by O’Dea, used under Creative Commons License.

New Bill Proposes to Streamline Medical Cannabis Research

By Jeff Bess, third-year stu­dent at the Uni­ver­sity of Wash­ing­ton School of Law. 

Photo by Laurie Avocado , used under Creative Commons License.

Photo by Laurie Avocado , used under Creative Commons License.

Despite how you slice it, medical marijuana is on the rise: as of earlier this month, 25 states and the District of Columbia permit medical use of cannabis and a recent US News poll shows 89% support among the public for medical marijuana programs. Additionally, Washington, Oregon, Colorado, Alaska, and the District of Columbia have voted to legalize recreational use of cannabis by adults, and there is a strong probability that list will grow this November. Even among those states that have not formally adopted a medical or recreational program, numerous jurisdictions have decriminalized possession of the drug.  Continue reading