Post updated by CDE staff on May 9, 2016
By Brooke Jenkins, J.D.
It’s an exciting, historic time for Cannabis law and policy in Vermont and New England. Every state in the region has medical marijuana laws on the books. Meanwhile, the laws in the Northeast are rapidly changing as Vermont, Rhode Island, Massachusetts and Maine could legalize marijuana for adult use in the future.
The Vermont House rejected in May 2016 an amendment that would have decriminalized the growing of two plants by a vote of 77 to 70. Lawmakers earlier defeated a Senate plan for commercial marijuana sales.
But the House did approve language calling for a special commission to examine issues surrounding the full legalization of marijuana. The commission is to report its findings in December 2016, according to Vermont Public Radio.
History of Marijuana Law in Vermont
Let’s start with the history of marijuana law in Vermont. After increasing penalties for marijuana in the 1950s and early 1960s, Vermont dropped simple possession to a minor misdemeanor in 1967, however there was a failed movement in the state to decriminalize marijuana in 1978.
In 2004, Vermont became the ninth state to approve medical marijuana. The state enacted legislation allowing four dispensaries to provide marijuana in 2011. Marijuana was decriminalized in 2013, and possession of an ounce or less by a person 21 years or older became subject to a civil penalty, similar to a traffic ticket.
Vermont currently has a tightly regulated medical marijuana program with 1,700 patients and 200 caregivers. There are also four dispensaries in Montpelier, Brandon, Burlington, and Brattleboro. The dispensaries are required to be vertically integrated, meaning they cultivate, test, manufacture, and dispense marijuana and marijuana-infused products to registered patients or caregivers. The Vermont Marijuana Registry is recognized as one of the best-run programs in the country.
The Future of Vermont Marijuana Law
There were hopes that Vermont would be the first state in the nation to legalize marijuana through the legislative process this year. There had been significant momentum in the legislature recently to tax and regulate marijuana for adult use. During the 2014 legislative session, lawmakers requested the Secretary of Administration to produce a report about the various benefits and consequences for legalizing marijuana. The RAND Corporation Drug Policy Research Center presented their findings on legalizing marijuana in January of 2015.
Following the Rand Report, state Sen. David Zuckerman introduced S.95, an act relating to the regulation and taxation of marijuana. The bill continued the conversation, but will not be used as the vehicle for legalization.
In February of 2015, a nine-member Vermont delegation that included law enforcement officials, drug treatment experts, marijuana supporters and detractors traveled to Colorado to gather information on that state’s experience with marijuana legalization.
With strong opinions being expressed on all sides of the debate, the legal controversy over marijuana will surely continue.
Marijuana Federal Law and Policy
Federal Preemption
Any discussion of marijuana law must begin with the Controlled Substance Act and federal preemption. Our Constitution says that federal law is the supreme law of the land. In 1970, Congress passed the Controlled Substances Act creating five schedules (classifications) for substances. Marijuana was “temporarily” designated as a Schedule I Drug meaning it has a high potential for abuse and no medicinal value. Federally speaking, marijuana remains a Schedule I drug, in the same category as heroin, LSD, ecstasy, and bath salts.
Supreme Court Response to State Marijuana Law
In 2001, and again in 2005, the U.S. Supreme Court upheld the Controlled Substance Act and the federal government’s authority to criminalize and regulate cannabis (even when it is allowed under state law). In Oakland Cannabis Buyers Coop v. U.S., the Court refused to let a nonprofit marijuana dispensary assert a medical necessity defense to the Controlled Substances Act.
In Gonzales v. Reich, DEA agents raided a sick woman’s home and seized six marijuana plants. The court held that Congress can prohibit local cultivation and possession of cannabis for personal use, even when a person is complying with state law. The court’s reasoning relied on Congress’ Commerce Clause authority.
A Movement to Legalize
Congress’s general authority to prohibit medical or recreational marijuana is beyond dispute. However, this has not stopped many states from reforming their marijuana laws. The movement to legalize medical marijuana began in California in 1996 with the passage of the Compassionate Use Act initiative amending the California Constitution.
Twenty-three states now allow qualified individuals to possess and use “medical marijuana.” In 2012, Colorado and Washington states went further when they legalized the “recreational” use of marijuana. In 2014, Alaska, Oregon, and the District of Columbia followed suit legalizing the “recreational” use.
Other Legal Issues Resulting From Continued Federal Prohibition
The threat of criminal prosecution is more remote that it has been in years for those operating marijuana businesses compliant with state law. However, there are many other legal problems that result from marijuana’s categorization as a Schedule I narcotic.
Banking is one of the most profound and well-documented consequences of marijuana’s prohibited status at the federal level. Also, a little-known provision of federal tax law called 280E makes the operation of a successful marijuana business an incredibly expensive proposition. Marijuana businesses are not able to deduct many normal business expenses because of 280E. Lastly, medical patients and legal consumers, can face obstacles regarding employment, probation, and family law.
Pros and Cons of Legalizing Marijuana
Proponents argue that prohibition does not prevent people from consuming, producing and selling marijuana – it only creates an underground market. Marijuana legalization restores personal freedom and creates tax revenue for the state. Opponent worry that legalizing marijuana will send a message to children that it is safe to use. They are also concerned about public health and safety. Strong opinions are expressed on both sides, and the legalization debate will surely heat up in the press and the legislature next session
For more information on the Cannabis Speaker Series, visit learn.uvm.edu.
Brooke Jenkins is the Dispensary Director at Vermont Patients Alliance, the medical marijuana dispensary in Montpelier where she works on regulatory compliance and policy. She graduated Magna Cum Laude from Vermont Law School in 2015. She has worked with the Vermont Office of Legislative Council, the Necrason Group, and the Vermont Defender General’s Office during her academic career, focusing on legislation and criminal justice policy.
Photo: Flickr Creative Commons
