Questions for @SenBooker about his Marijuana Justice Act (that cannabis journalists and advocacy groups should be asking, but aren’t’)

1 As of today, which of the 50 states have “not enacted a statute legalizing marijuana in the State”? (Sec. 3(a)(1))

The answer is somewhere between 7 and 38 right now, but I’m not sure that even Senator Booker could say which, if any, of the 38 would be “Covered states.” As far as I know, no journalist has asked him.
http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html

2 The Act defines “disproportionate arrest rate” as when the percentage of minority marijuana arrests is “higher than the percentage of the non-minority individual population of the State…” Really? (Sec. 3(a)(2))

If “yes,” in New Jersey where the percentage of whites is 58.5 %, the percentage of minority marijuana arrests would have to be higher than 58.5% to be disproportionate, which is nonsense. The definitions in the Act are riddled with this and other “errors.”

3 Why should states that have legalized marijuana but continue to have disproportionate marijuana arrest or incarceration rates be eligible for funds denied “Covered states”? (Sec. 3(b))

The answer might be that @SenBooker believes that it is far more important that that the federal government “encourage” states to legalize marijuana, whatever that means, than for a state to end its disproportionate marijuana arrests and incarceration rates, but my guess is that the Senator just didn’t give the MJA sufficient thought.

4 Did you intend to give the right to bring a federal civil suit to every “individual who is aggrieved by a disproportionate arrest rate or a disproportionate incarceration rate,” even if the offense is not a marijuana-related offense? (Sec. 3(d))

If the answer to this is “yes,” then @NORML and others missed the headline, for this seldom mentioned provision of the MJA would bring a tsunami of litigation of unimaginable magnitude.

“Marijuana Justice Act” — Problems and Solutions

The Marijuana Justice Act (MJA) was introduced in the Senate as S. 1689 by Senator Booker on August 1, 2017, and a companion House bill, H.R. 4815, was introduced in the House by Representative Barbara Lee on January 18.

The MJA has been praised in publications as diverse as High Times and Forbes. Justin Strekal, NORML’s political director, has called it “the new normal”. And Shelton Hall went so far in Folio Weekly Magazine as to call it “Booker’s Magic BULLET” and “the solution to the mass incarceration problem.”

I became interested in MJA and all current marijuana reform bills in Congress after Attorney General Jeff Sessions rescinded the Colo memorandum on January 4th. From the very beginning my attitude was that vilifying and thwarting Sessions was all well and good, but Congress is both the cause of the problem and the solution.

Is MJA that solution? What specifically would MJA do? NORML’s description is fairly typical of what has been reported and more complete than most:

The bills, S. 1689 and HR 4815 would (1) remove marijuana from the US Controlled Substances Act, thereby ending the federal criminalization of cannabis; (2) incentivize states to mitigate existing and ongoing racial disparities in state-level marijuana arrests; (3) expunge federal convictions specific to marijuana possession; (4) allow individuals currently serving time in federal prison for marijuana-related violations to petition the court for resentencing; (5) and create a community reinvestment fund to invest in communities most impacted by the failed War on Drugs.

[http://norml.org/action-center/item/the-marijuana-justice-act-of-2017-introduced]

Sounds good — right? It does, but the question is whether the MJA does what reporters and its sponsors say it does, does the text of the bill match its intentions and promises.

Sec. 3 of MJA

“Covered states” ineligible for certain funds

Sec. 3 of the MJA is mundanely titled “INELIGIBILITY FOR CERTAIN FUNDS,” but it is the most significant section, it is the section that NORML claims would “incentivize states to mitigate existing and ongoing racial disparities in state-level marijuana arrests.”

Sen. Booker gave a more complete description of what Section 3 is intended do in his press release announcing the bill’s introduction:

MJA would “incentivize states through federal funds to change their marijuana laws if marijuana in the state is illegal and the state disproportionately arrests or incarcerates low-income individuals and people of color for marijuana-related offenses…”

https://www.booker.senate.gov/?p=press_release&id=638

The words that the Senator added are the key to understanding what is wrong with the MJA and why it will never pass as written. MJA would not make every state that “disproportionately arrests or incarcerates low-income individuals and people of color for marijuana-related offenses” ineligible for certain funds; only states where marijuana is “illegal” would be punished. The bill itself accomplishes the is by defining “Covered states” as a “State that has not enacted a statute legalizing marijuana in the State” (Sec. 3(a)(1) and by making a “Covered state” ineligible for certain specified federal funds if it “has a disproportionate arrest rate or a disproportionate incarceration rate for marijuana offenses.”

As I see it this provision has major problems, which can be simply remedied. The problems are

1.  Punishing states that have “not enacted a statute legalizing marijuana,” is a poison pill that makes the MJA politically DOA. (3(a)(b))

2.  “Statute legalizing marijuana” is so vague that it’s impossible to know what states it covers. (3(a)(1))

3.  Amending MJA to accurately define “statute legalizing marijuana” would usurp states’ rights. (3(a)(1))

4.  States that have legalized marijuana are still regulating it and still have disproportionate marijuana arrest and incarceration rates [https://www.civilized.life/articles/marijuana-legalization-does-not-fix-racial-disparity-arrests/], but those states are not punished. (3(b))**

I could go to great lengths explaining these problems, but that’s not necessary because I have GOOD NEWS — as I wrote Senator Booker:

I urge you to revise your Marijuana Justice Act by making the “Ineligibility for Certain Funds” provisions (Sec. 3) applicable to all states with disproportionate arrest or incarceration rates for marijuana-related offenses. You are no doubt aware of the published study showing that marijuana legalization does not fix the racial disparity for marijuana arrests. … Additionally eliminating the “Covered states” concept will enable you to sell the MJA to those who favor federal legalization on the basis of states rights.

Notably, among those who favor states rights on marijuana is Senator Bernie Sanders, who in the letter announcing his new legalization petition said: “Let’s have states decide the issue of marijuana for themselves like they do with alcohol.”

Defining disproportionate marijuana arrest and incarceration rates.

To put it bluntly, I believe that the definitions in Sec. 3(a)(2)-(4) were sloppily drafted. I have sent Sen. Booker a completed suggested revised version, but to illustrate compare the following two definitions:

(2) the term “disproportionate arrest rate” means–

(A) the percentage of minority individuals arrested for a marijuana related offense in a State is higher than the percentage of the non-minority individual population of the State, as determined by the most recent census data …

Or

(2) the term “disproportionate arrest rate” means–

(A) the percentage of minority individuals arrested for a marijuana-related offense in a State is higher than the percentage of the non-minority individuals arrested for marijuana-related offenses in the State, as determined by the most recent census data;

If you believe that the first version is clearer and carries out Sen. Booker’s intent more faithfully than the second version, then we will have to agree to disagree or you have some convincing to do. The same drafting problems appear throughout the definitions.

Right Of Action.

Surprisingly, NORML failed to even mention Sec. 3(e) in summarizing what the MJA would do, because it would be the most radical of the provisions. It provides:

An individual who is aggrieved by a disproportionate arrest rate or a disproportionate incarceration rate of a State may bring a civil action in an appropriate district court of the United States.

In the action, a plaintiff who prevails may be granted “all necessary equitable and legal relief, including declaratory relief” and an order declaring the state ineligible to receive certain funds.

The first thing to be noted is that this provision is not, as written, limited to marijuana-related arrests and incarcerations. Intentional or sloppily drafted? — I have no idea.

Even if the provisions were limited to marijuana-related arrests and incarcerations, I cannot begin to fathom whom the federal courts dealing with this provision would find to have been aggrieved by a “rate.” In fact, I might find it more plausible that the owner of a convenience store in a neighborhood impacted by a high incarceration rate could more easily prove that his business has been aggrieved by the “rate” than could someone who was arrested and incarcerated for committing a crime.

I have suggested to Senator Booker that this section be deleted.

Conclusion

If the Senator and Representative Lee were to adopt my suggestions by making ALL states that have discriminatory arrest and incarceration rates ineligible for “certain funds,” and if Sec. 3(e) were eliminated, I would be happy to support MJA. Otherwise I cannot.

I would be interested in your thoughts and questions.

William Bremer @ColoLegal420