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Marijuana Laws Loosened

More states legalize or decriminalize marijuana, while two cities decriminalize natural psychedelics

More states took steps in 2019 to legalize or decriminalize marijuana and expunge related convictions from people’s criminal records.Jack Karp, “Turning Over a New Leaf: The Push to Nix Old Pot Convictions,” Law360, October 20, 2019, https://perma.cc/66PC-GJMJ.Still, more than a third of the 1.6 million arrests for drug offenses in 2018 in the United States were for possession of marijuana.U.S. Department of Justice, Federal Bureau of Investigation (FBI), “Crime in the United States 2018: Persons Arrested,” https://perma.cc/M2HZ-5DNH; Tom Angell, “Marijuana Arrests Increased Again Last Year Despite More States Legalizing, FBI Data Shows,” Forbes, October 1, 2019, https://perma.cc/RPH7-7JE9; and ACLU, “Marijuana Arrests by the Numbers,” https://perma.cc/KR3T-8RQR.Meanwhile, two cities are leading the effort to decriminalize another drug: natural psychedelics, which are gaining acceptance for their medical and therapeutic value.Denver, Colorado, Initiated Ordinance 301, Psilocybin Mushroom Initiative (May 2019), https://perma.cc/B7BL-SZ2A; Oakland City Councilmember Noel Gallo, “Resolution Supporting Entheogenic Plant Practices and Declaring That the Investigation and Arrest of Individuals Involved with the Adult Use of Entheogenic Plants on the Federal Schedule 1 List Be Amongst the Lowest Priority for the City of Oakland,” adopted June 4, 2019, https://perma.cc/66BS-YZPT; and Trevor Hughes, “Magic Mushrooms for Better Health? Psychedelic Drugs Are Having a Moment Across US,” USA Today, August 24, 2019, https://perma.cc/K533-JVZK.

Three states—Hawaii, New Mexico, and North Dakota—voted to decriminalize marijuana in 2019, removing the threat of jail time for those caught in possession of small amounts.Hawaii HB 1383 (2019), https://perma.cc/H56K-4KP2; New Mexico SB 323 (2019), https://perma.cc/UJ2G-77HV; and North Dakota HB 1050 (2019), https://perma.cc/F9CR-6X3E.And in June, the Illinois General Assembly voted to legalize recreational marijuana, joining 10 other states, plus the District of Columbia, that have such laws on the books.Illinois HB 1438 (2019), https://perma.cc/33P2-BQ3Y; German Lopez, “Illinois Just Legalized Marijuana,” Vox, June 25, 2019, https://perma.cc/M2HZ-5DNH; and National Conference of State Legislatures, “Marijuana Overview,” updated October 17, 2019, https://perma.cc/UT97-2SM2.Illinois, which had already legalized medical marijuana on a temporary basis in 2014, approved cannabis sales and possession for adults 21 and older, although cities and counties can still prohibit sales on a jurisdiction-by-jurisdiction basis.Sam Dunklau, “Illinois' Medical Marijuana Program Is Now Permanent, Expanded,” NPR Illinois, August 12, 2019, https://perma.cc/3FVC-UPLX; and Lopez, “Illinois Just Legalized Marijuana,” 2019.

One issue intrinsically connected to the criminalization of marijuana use is race. The criminal justice system has historically unfairly targeted people of color in marijuana enforcement efforts.German Lopez, “The Case for Marijuana Legalization,” Vox, November 14, 2018, https://perma.cc/6XBG-V23W.On average, a Black person is 3.73 times more likely to be arrested for marijuana possession than a white person, even though Black and white people use marijuana at similar rates.American Civil Liberties Union (ACLU), Report: The War on Marijuana in Black and White (New York: ACLU, 2013), https://perma.cc/A8N8-F7UF.Acknowledging this biased history, Illinois agreed in its new law to give cannabis-vendor preference to owners from racial and ethnic minority groups, as well as those who have been impacted by past enforcement, and mandated that 25 percent of tax revenue from marijuana sales be used to redevelop impoverished communities.Illinois HB 1438 (2019); and John O’Connor, “Illinois Becomes 11th State to Allow Recreational Marijuana,” Associated Press, June 25, 2019, https://perma.cc/H4CH-QKTX.The move was cause for cautious optimism; Black entrepreneurs have worked nationwide to increase minority participation—and eliminate discrimination—in the burgeoning marijuana industry, joining together to launch Real Action for Cannabis Equity (RACE), in September.William J. Kole, “New Push for Racial Equity in the Marijuana Trade,” ABC News, September 5, 2019, https://perma.cc/28YS-8MZA. Also see Vivian Wang and Jeffery C. Mays, “Black Lawmakers to Block Legalized Marijuana in N.Y. if Their Communities Don’t Benefit, New York Times, March 11, 2019, https://www.nytimes.com/2019/03/11/nyregion/marijuana-legalization-african-americans.html; Max Blau, “African-Americans Missing Out on Southern Push for Legal Pot,” Pew Charitable Trusts, March 18, 2019, https://perma.cc/K8H6-QBXH; and Amanda Chicago Lewis, “America's Whites-Only Weed Boom,” Buzzfeed, March 16, 2016, https://perma.cc/97T7-SNGV.(In Massachusetts, for example, all but two marijuana business licenses have gone to white people.)Kole, “Racial Equity,” 2019.However, on the eve of the law’s implementation, every license in the Chicago area had been granted to a white licensee, causing community leaders such as the Chicago Aldermanic Black Caucus to attempt to delay local rollout by six months to give Black applicants a chance to obtain licenses as well.John Byrne, Lolly Bowean, Gregory Pratt, and Dan Petrella, “Legal Recreational Weed Sales Will Begin Jan. 1 as Planned in Chicago, Despite a Wild, Angry Debate in City Council,” Chicago Tribune, December 18, 2019, https://perma.cc/2HDE-A5FT.

The Illinois law also includes provisions to clear people’s past convictions for certain marijuana offenses. Those who currently have criminal records for purchasing or possessing 30 grams (about an ounce) of marijuana or less—estimated to include nearly 800,000 people across the state—will have those records expunged.Illinois HB 1438 (2019); and O’Connor, “Illinois Becomes 11th State,” 2019.To make the expungement process easier, Cook County, Illinois, announced in August that it would be teaming up with the nonprofit Code for America to use software that can automatically identify and process the eligible records and then generate paperwork for filing those expungements with the court—which can save time and money for both the state and the people whose records are being cleared.Alexander Lekhtman, “Code for America to Automate Expungement of Cannabis Convictions in Cook County, IL,” Filter, September 4, 2019, https://perma.cc/V92L-TVMS.The use of software to automatically expunge records is gaining steam; San Francisco was the first jurisdiction to complete an automatic expungement, clearing more than 8,100 marijuana-related convictions in February.Kyle Jaeger, “San Francisco Automatically Expunges 8,100 Marijuana Convictions Using Computer Program,” Marijuana Moment, February 25, 2019, https://perma.cc/3J3A-P8MM.San Francisco had only been able to complete 1,230 expungements manually in the prior year.Ibid.

The Illinois law contains additional provisions making nonviolent crimes involving possession of under 30 grams of marijuana eligible for automatic pardon, and those involving possession of 30 to 500 grams eligible for pardon only if a person petitions the courts.Ray Sanchez, “Illinois Governor Pardons More Than 11,000 People for Low-Level Pot Offenses,” CNN, December 31, 2019,https://perma.cc/T3F6-6XGP.On New Year’s Eve, one day before the law went into effect, Governor Pritzker pardoned more than 11,000 of the approximately 116,000 people estimated to be affected.Ibid.

New York State attempted to fully legalize marijuana this past year (it had already legalized medical marijuana in 2014), but the bill could not garner enough support in the state Senate.New York SB S6579A (2019), https://perma.cc/SRR2-M63P; and New York SB S7923 (2014), https://perma.cc/WY2M-L7JB. Also see Jesse McKinley, “New York Assembly Passes Medical Marijuana Bill,” New York Times, May 27, 2014, https://www.nytimes.com/2014/05/28/nyregion/assembly-backs-use-of-marijuana-for-illnesses.html; and Vivian Wang, “Final Push to Legalize Pot Fails in New York,” New York Times, June 19, 2019, https://www.nytimes.com/2019/06/19/nyregion/marijuana-legalization-ny.html.Instead, in June, the legislature passed a bill decriminalizing the possession of marijuana—treating possession of up to two ounces as a violation, instead of a crime, punishable with fines between $50 and $200—and, like Illinois, agreed to automatically expunge records of low-level marijuana convictions, affecting about 160,000 people.Jesse McKinley and Vivian Wang, “Marijuana Decriminalization Is Expanded in N.Y., but Full Legalization Fails,” New York Times, June 20, 2019, https://www.nytimes.com/2019/06/20/nyregion/marijuana-laws-ny.html; and Andrea Salcedo, “Where New York Stands on Marijuana,” New York Times, August 29, 2019, https://www.nytimes.com/2019/08/29/nyregion/nyc-marijuana-legalization.html.

Also in June, Texas lawmakers legalized hemp—a popular ingredient in clothing, twine, and protein powder, as well as cannabidiol, known as CBD.Texas HB 1325 (2019), https://legiscan.com/TX/bill/HB1325/2019. See also Healthline, “CBD vs. THC: What’s the Difference?” https://perma.cc/892R-3ZUK; and Stephen Young, “Texas Gov. Greg Abbott Signs Law Legalizing Hemp, CBD Products in Texas,” Dallas Observer, June 12, 2019, https://www.dallasobserver.com/news/texas-legalizes-hemp-11685229.Although both hemp and marijuana plants are the same species—Cannabis sativa—hemp describes strains of the plant that appear identical to marijuana but have a low or unmeasurable THC content.7 U.S.C. § 1639p(a)(1) (hemp production); and Leif Reigstad, “Here’s What Texas DAs Think of the New Hemp Law that Effectively Decriminalized Pot,” Texas Monthly, July 30, 2019, https://www.texasmonthly.com/politics/heres-what-texas-das-think-of-the-new-hemp-law-that-accidentally-decriminalized-pot/Shortly after the law went into effect, and despite pushback from state leaders, district attorneys began dropping low-level marijuana possession charges and declining to pursue new ones because, they said, their labs didn’t have the capacity to distinguish between legal hemp and illegal marijuana.Letter from Greg Abbott, Governor of Texas; Dan Patrick, Lieutenant Governor of Texas; Dennis Bonnen, Speaker of the Texas House of Representatives; and Ken Paxton, Attorney General of Texas to Texas District and County Attorneys, July 18, 2019, https://perma.cc/DD2S-W3EP; Jolie McCullough, “Texas Leaders: Hemp Law Did Not Decriminalize Marijuana,” Texas Tribune, July 18, 2019, https://www.texastribune.org/2019/07/18/greg-abbott-texas-leaders-hemp-marijuana-law/; and Nicholas Bogel-Burroughs, “Texas Legalized Hemp, Not Marijuana, Governor Insists as Prosecutors Drop Pot Charges,” New York Times, July 19, 2019, https://www.nytimes.com/2019/07/19/us/texas-hemp-marijuana-legalization.html.Police and prosecutors in Florida faced the same problem after the state’s law legalizing hemp went into effect in July.Kathryn Varn, “In Florida, a Haze Builds Around Pot Law Enforcement as Technology Catches Up to Policy,” Tampa Bay Times, July 12, 2019, https://www.tampabay.com/news/publicsafety/in-florida-a-haze-builds-around-pot-law-enforcement-while-technology-catches-up-to-policy-20190712/.

State and local action on marijuana follows public opinion on this issue. Americans support marijuana legalization in record numbers. A Pew Research Center survey released in November found that 59 percent of Americans say marijuana should be legal for medical and recreational use; 32 percent say it should be legal just for medical use.Andrew Daniller, “Two-Thirds of Americans Support Marijuana Legalization,” Pew Research Center, November 14, 2019, https://perma.cc/3XQV-NKY3.Only 8 percent want to keep marijuana illegal in all circumstances.Ibid.Thirty-three states—plus the District of Columbia—have legalized the drug for medical purposes.German Lopez, “Marijuana is Legal for Medical Purposes in 33 States,” Vox, May 10, 2019, https://perma.cc/5TTS-ST7Q.But despite a bill making its way through the U.S. House of Representatives at year-end, marijuana remains illegal under U.S. federal law—although most of the leading Democratic presidential candidates want to legalize it or, in the case of former Vice President Joe Biden, decriminalize it.Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, H.R. 3884 (2019), https://perma.cc/J5JN-BPZD; Berkeley Lovelace, Jr., “House Committee Approves Landmark Bill Legalizing Marijuana at the Federal Level,” CNBC, November 21, 2019, https://perma.cc/L6GE-7F4T; and Katie Park and Jamiles Lartey, “2020: The Democrats on Criminal Justice,” The Marshall Project, updated December 3, 2019, https://perma.cc/K8RE-56YT.

Marijuana was not the only drug making legislative news in 2019. Psychedelics have been banned under federal law since 1970, but two cities—Denver, Colorado, and Oakland, California—passed regulations this year decriminalizing the use and possession of psilocybin mushrooms and other natural psychedelics, which have been shown to help those battling depression, post-traumatic stress disorder, and addiction.Denver, Colorado, Initiated Ordinance 301, Psilocybin Mushroom Initiative (May 2019), https://perma.cc/8Q3J-KS6K; Gallo, “Resolution Supporting Entheogenic Plant Practices,” 2019; and Hughes, “Magic Mushrooms for Better Health?” 2019.

In May, Denver became the first city to decriminalize psilocybin mushrooms after voters narrowly approved a ballot initiative.Denver, Colorado, Initiated Ordinance 301; and Esther Honig, “In Close Vote, Denver Becomes 1st U.S. City to Decriminalize Psychedelic Mushrooms,” NPR, May 9, 2019, https://perma.cc/WDY5-LCKC.Although the policy does not legalize the mushrooms, it bars the city from arresting adults who possess them.Honig, “In Close Vote,” 2019.Then, in June, the Oakland City Council unanimously voted to decriminalize “entheogenic plants”—plants and fungi that produce psychedelics traditionally used in spiritual practices.Gallo, “Resolution Supporting Entheogenic Plant Practices,” 2019; and Jon Blistein, “Oakland Decriminalizes Magic Mushrooms, Other Natural Psychedelics,” Rolling Stone, June 5, 2019, https://perma.cc/228M-UN2Z.

Other jurisdictions are eyeing similar policies. Organizers in Oregon and California are circulating petitions to put decriminalization of psilocybin on the state ballot, and advocates in Portland, Oregon; Chicago, Illinois; Berkeley, California; and Dallas, Texas, are pushing various decriminalization measures involving psychedelics either through city council action or ballot measures.Kyle Jaeger, “Most Oregon Voters Favor Legalizing Psilocybin Mushrooms for Medical Use, Poll Finds,” Marijuana Moment, January 22, 2019, https://perma.cc/KB55-7MEF; Kyle Jaeger, “California Activists Take First Steps to Decriminalize Psilocybin Mushrooms Statewide,” Marijuana Moment, May 6, 2019, https://perma.cc/GY4B-G6S9; Katherine Kisiel, “Petitioners Trying to Decriminalize Psychedelics in Portland,” KATU-2, October 31, 2019, https://katu.com/news/local/petitioners-trying-to-decriminalize-psychedelics-in-portland; Vincent Caruso, “Chicago Council Member Calls for Decriminalization of Magic Mushrooms,” Illinois Policy, October 22, 2019, https://perma.cc/2X6T-UTX9; Alexander Lekhtman, “Berkeley, CA May Be Next the City to Decriminalize Natural Psychedelics,” Filter, August 22, 2019, https://perma.cc/MJ2A-ENF3; Tiney Ricciardi, “Will Dallas Decriminalize Cannabis and Psychedelics? New Local Grassroots Group Thinks Now Is the Right Time to Ask,” Dallas Morning News, October 24, 2019, https://www.dallasnews.com/news/public-health/2019/10/24/will-dallas-decriminalize-cannabis-and-psychedelics-new-local-grassroots-group-thinks-now-is-the-right-time-to-ask/; and Jaeger, “Four More Major Cities,” 2019.