DemDaily: The Status of Cannabis

March 9, 2023

On Tuesday, Oklahoma voters overwhelmingly rejected a referendum -- by 24 points -- to fully legalize marijuana in what appears to be an about-face for a state that backed medical marijuana legalization by double-digits in 2018.

Since Oklahoma legalized medical cannabis five years ago, it has earned the nickname “Tokelahoma,” with roughly 12,000 licensed marijuana businesses and nearly 370,000 patients -- in a state with less than four million residents.

The special election results reflect what may be a backlash to the rapid expansion of an industry that has exploded in the last decade. Similar referendums in Arkansas, South Dakota and North Dakota supporting full legalization were all voted down in November.

Status of The States: The medical use of cannabis is legal in 37 states, the District of Columbia (DC) and four Territories. The recreational use of cannabis is legal in 21 states, DC, Guam and the Northern Mariana Islands. Marijuana is still officially illegal at the federal level, however, which requires an act of Congress to change.

Regardless, the drive to legalize marijuana has continued nationwide, with Maryland and Missouri passing adult-use referendums in the 2022 midterm elections. Colorado also legalized psychedelic mushrooms by initiative vote.

Although traditionally seen as a Democratic issue, some Republican lawmakers have embraced the issue in recent years as red state voters signal their approval of medicinal and recreational use of the psychoactive substance.

Since California became the first state to legalize medical marijuana in 1996, a majority of states have passed legislation or ballot initiatives allowing residents to legally light up on some level.

The Administration
In October of 2022, President Joe Biden delivered on his campaign promise to decriminalize marijuana, signing an executive order pardoning thousands of convicted felons on federal charges of simple marijuana possession.

The order clears the records of those convicted under federal law since marijuana was criminalized in 1970. It also applies to the records of thousands more convicted under District of Columbia drug laws.

While the order does not apply to the millions more convicted at the state level, 24 state governments have enacted laws providing pathways to either expunge or set aside records of those with low-level marijuana convictions.

After several months of delay, the Justice Department last week opened the online application process for persons eligible to receive presidential pardon certificates for their marijuana-related convictions. The Office of the Pardon Attorney estimated that as many as 20,000 people may be eligible for pardon.

In December, Biden made history when he became the first American president to sign marijuana-specific reform legislation into law. The bipartisan Medical Marijuana and Cannabidiol Research Expansion Act passed by Congress makes it easier for scientific researchers to study the plant, including its potential therapeutic benefits.

Co-sponsors of the bill included Senators Chuck Grassley (R-IA) and Dianne Feinstein (D-CA), as well as key advocates of marijuana reform in the House, Congresspersons Earl Blumenauer (D-OR), Nancy Mace (R-SC) and Dave Joyce (R-OH).

Congressional leaders have proposed more ambitious marijuana reform measures but have so far been unable to overcome a mostly partisan deadlock.

The administration is also reviewing marijuana's current classification as a Schedule 1 substance under the federal Controlled Substances Act, which puts it in the same category as heroin. The category is reserved for the most tightly restricted drugs which are considered highly addictive and have "no currently accepted medical use."

On March 1, US Attorney General Merrick Garland told a Senate committee that the DOJ is still working on the review, but expects the agency to ultimately issue a policy document “very close to what was done in the Cole Memorandum.”

The memo, issued in 2013 by former Deputy Attorney General James Cole under President Barack Obama, formally adopted a hands-off approach to federal marijuana prosecutions in states with marijuana-friendly policies. It was rescinded in 2018 under the Trump administration by then-Attorney General Jeff Sessions.

A November 9-15, 2022 Data for Progress survey found that 74% of likely voters backed federally legalizing marijuana, including 65% of Republicans, 76% of independents and 81% of Democrats.

Measures to legalize marijuana for recreational use have been introduced through legislation or may be on the ballot in 2023 in Delaware, Hawaii, Iowa, Kansas, Kentucky, Louisiana, Minnesota, New Hampshire, Ohio, Pennsylvania, Tennessee, Texas and West Virginia.

Vote!: Where Your Members of Congress Stand on Cannabis Reform
Check Out: Marijuana Laws in Your State
Apply for: A Presidential Pardon Certificate

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Kimberly Scott

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Sources: NORML, MJBizDaily, CNN, National Law Review, Cannabis Business Times, Nat'l Cannabis Industry Assoc

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