By Mark Wolf
Los Angeles—On today's edition of NCSL Jeopardy!, the question is, "The only U.S. state that allows no use of cannabis in any form." And the answer is: "What is Idaho?"
In every other state, at least some allowance is made for cannabis use, some of it very restrictive to be sure.
Federal law continues to ban medical or recreational marijuana, which means states have to navigate carefully through any legalization efforts. However, notable developments this year might make it easier to regulate cannabis, Vanderbilt law professor Robert Mikos told a session of NCSL's Legislative Summit.
Attorney General Jeff Sessions rescinded Obama-era enforcement guidelines and suggested that the Department of Justice was going to undo all the state cannabis laws. But, Mikos said, Congress tied the department's hands by barring the feds from using funds to prosecute people who are obeying state laws. Also, he said, justice doesn't have the resources to pursue such a strategy.
Mikos also said the U.S. Supreme Court decision in Murphy vs. NCAA, which granted states the power to legalize sports gambling, might have an impact on marijuana legislation. The court ruled that forbidding New Jersey from allowing sports gambling violated the anti-commandeering rule that empowers states to legalize an activitity even when Congress forbids the same activity.
Maine Senator Roger Katz (R) sketched his state's journey to legalization, beginning with allowing limited medical use back in 1999.
"There is a general acceptance of marijuana," he said. "We all know someone who feels as if they've been helped by medical marijuana."
Katz said there was "still a fair amount of abuse in the system. Most caregivers are in it for the right reasons but there are those who grow and distribute it into the black market."
Maine voters narrowly passed a 2016 initiative to allow recreational cannabis (urban areas voted in favor, rural areas against) but Governor Paul LaPage (R) vetoed two attempts by the Legislature to pass enabling legislation; the second veto was overturned.
"We listened to a lot of stakeholders on both sides of the issue," said Katz. Maine kept medical and recreational cannabis separate (except for oversight), in part as a response to concerns about federal laws. Maine residents are favored in the licensing process through a four-year Maine residence requirement. No cartoon or animal characterizations are allowed in advertisements.
California Assemblymember Reginald Byron Jones-Sawyer (D) has long been bullish on cannabis. He famously shared a vape pipe and inhaled Pineapple Thai onstage with Melissa Etheridge in May.
"There has been decriminalization activity going on in California since 1972," said Jones-Sawyer, adding that when he was elected in 2012, his father-in-law needed cannabis for throat cancer. "I met veterans with PTSD who said this helped them, people with arthritis, cancer patients, AIDS patients."
Local control was crucial to California, he said, especially when trying to get law enforcement, which is still pushing back, especially on driving under the influence, on board. Product testing, he said, is crucial.
"Because of federal regulations, we have to get cannabis to test through U.C. San Diego and it's grown in Tennessee. I think we have some of the best weed here. I can walk outside this building and get what we need. The level we're concerned about, we're not getting from Tennessee. We need to test what people are using now in 2018," he said.
The state has not done enough to get rid of illegal sellers, he said.
"We tried to put up $75 million to create an Elliot Ness operation to shut down illegal cannabis," he said. "In this city right now there are 134 legal cannabis shops and there are 1,400 illegal ones."
Mark Wolf is editor of the NCSL Blog.