Officers in Maryland may stop and question an individual who smells of cannabis, a court ruled last week.
In a divided ruling, the state’s Court of Appeals said “the drug’s aroma provides police with ‘reasonable suspicion’ that the person may have 10 grams or more, thus permitting the officers to conduct a brief ‘investigatory’ stop,” the Daily Record reported.
But the ruling does not give law enforcement carte blanche in those circumstances. According to the outlet, those officers “must end the stop if they do not quickly obtain information that gives them probable cause to believe the person has at least 10 grams or has committed another criminal offense.”
And the Daily Recordnoted that, despite the ruling, “possession of less than 10 grams of the drug is not a crime in the state.”
The ruling stems from a case involving a 15-year-old who was found to have a handgun in his possession. Officers found the weapon on the juvenile’s waist after conducting a frisk that was prompted by the odor of cannabis.
Last year, the Maryland Court of Special Appeals––an intermediate appellate court––took up the case and ruled that the smell of weed does not justify a cop to conduct a search, citing the decriminalization of possessing 10 grams or less of cannabis in Maryland.
“Because possession of less than 10 grams of marijuana is no longer a crime, the suspicion required to support a stop for the crime of possession of marijuana, therefore, is that the person is in possession of more than 10 grams of marijuana,” Judge Kathryn Grill Graeff wrote in her opinion, as quoted by local news outlet WTOP. “And because the ‘odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession,’ [citing a previous case], it cannot, by itself, provide reasonable suspicion that the person is in possession of a criminal amount of marijuana or otherwise involved in criminal activity.”
But last week’s ruling from the state’s Court of Appeals undoes that opinion.
In a 4-3 decision, the majority “public interest in investigating and prosecuting criminal offenses, balanced against an individual’s freedom of movement and reasonable expectation of privacy in their person, leads us to conclude that the odor of marijuana by itself justifies a brief investigatory detention,” according to the Daily Record.
“Given the important governmental interest in detecting, preventing, and prosecuting crime, the Fourth Amendment allows a brief seizure, based on reasonable suspicion, to attempt to determine if criminal activity is afoot,” Judge Jonathan Biran wrote in the majority opinion, as quoted by the Daily Record. “An officer who lacks probable cause to arrest is not required ‘to simply shrug his shoulders and allow a crime to occur or a criminal to escape.’”
Judge Michele D. Hotten, writing for the minority, said that the “smell of odor on a person, alone, makes it impossible for law enforcement to determine whether the person has engaged in a wholly innocent activity, a civil offense, or a crime.”
“While reasonable suspicion is a relatively low barrier, law enforcement may not rely on a hunch that a person may possess 10 grams of (marijuana) odor in a non-medicinal capacity to form a basis of reasonable suspicion,” Hotten wrote in the dissenting opinion, according to the Daily Record.
Another judge in the majority addressed the particulars of the stop involving the 15-year-old, saying that the “officer in this case was justified in stopping [the juvenile] because police were responding to a call that a males [sic] were smoking a controlled dangerous substance in the basement of an apartment complex, which would indicate an amount of marijuana of at least 10 grams,” according to the Daily Record.
“The bus was busted!” HIGH TIMES Executive Editor John Holmstrom informed me as I walked into the office, only hours before my train to Toledo was scheduled to leave. It was March 28th—just four days before the Hash Bash, the main event on the spring Hemp Tour. I was planning to catch up with the bus in Toledo, Ohio, then hitch a ride to Lansing, Michigan, for a rally on March 30.
“What happened?” I asked. John had spoken to Ben Masel, the Hemp Tour’s primary organizer. “They tried to search the bus in Bowling Green [Ohio]. Someone was arrested and they towed the bus away,” John explained. “That’s all I know.”
The white Hemp Tour school bus had made the rounds during the previous fall’s Hemp Tour.
It wasn’t exactly psychedelic, but it certainly stood out. I was worried that the bust would grind the three-month Hemp Tour to a halt. I was also concerned that one of my friends had been arrested. With this sketchy information in mind, I left the office, walked over to Grand Central Station, and boarded my train. Next stop, Toledo.
March 30
Before leaving, I call a number in Toledo that was given to me by Doug McVey, who along with Rick Pfrommer and Debbie Goldsberry (one of the Hemp Tour’s key coordinators) wrote up the Hemp Tour ’90 Organizer’s Manual. A woman named Lara answers and promises that someone from the Tour will meet me at the train station when I arrive at 7 AM. I find that hard to believe. But believe it or not, a familiar white VW van is waiting for me as I walk out of the Toledo station that rainy morning. Ben is driving, and Monica, Shan, and Kevin are crowded into the back. Sort of a guest of honor, I’m given the passenger seat.
I quickly learn that the bus is in the possession of Debbie and members of Red Fly Nation, a hot new band from Kentucky that joined the tour in Lexington a week ago. But there’s another problem: The bus won’t run. Fortunately, Amazin’ Dave (from last year’s HIGH TIMES psychedelic bus trip to Ann Arbor) is on the scene, fixing the transmission so the bus can at least make it to Ann Arbor by the 1st.
So what happened in Bowling Green? Shan Clark, a veteran of the fall Tour, explains: “We had to park pretty far away from the rally, near a school. A cop named Cowboy, who wears a cowboy hat around Bowling Green, watched us unloading our material. Paul [Troy] was asleep on the bus while the rally was going on, and two cops knocked on the door at about 2:45 PM. They said they were coming on the bus. Paul said, ‘No, you’re not. I’m afraid you need a search warrant.’ They threw him out of the bus, onto the ground, and handcuffed him—when we saw him, he had a bloody nose and his hands were purple from the cuffs. They impounded the bus and then went ahead with a search. When we got to the tow yard the next day, the bus was trashed. They ransacked our bus, went through all our bags, and found two seeds. That’s been the low point so far.” Paul was freed on $100 bail (he pleaded no contest and accepted a year’s probation); the bus was fined $10 for a crack in the windshield and charged $50 for the tow. As far as the rally on the campus of Bowling Green State University was concerned, 500 people came to hear the news about how hemp can save the world and why marijuana should be legalized.
As we drive north to East Lansing for today’s rally, the rain subsides. Somehow, Ben finds Valley Court Park, where the rally is being held. Large black-and-white banners proclaiming HEMP FOR THE OVERALL MAJORITY OF EARTH’S PAPER * FIBER * FUEL * FOOD * PAINT * VARNISH * MEDICINE AND TO LIVE LONGER, OR THE GREENHOUSE EFFECT-CHOOSE ONE and the simpler HEMP FOR VICTORY (as well as a huge American flag) are already hanging from a baseball cage. These signs can only mean one thing: Jack Herer is here.
The burly, gruff-voiced author of The Emperor Wears No Clothes preceded our arrival by half an hour. His team, which includes Maria Farrow, Willie, Nelson, J.S. and Brenda, quickly posted the signs and are already selling books, stickers, and hemp clothing. In a particularly impassioned fashion, Shan introduces Jack to the spring break crowd. Waving a copy of The Reign of Law, which was printed on hemp paper, Jack ignites sparks with this fiery commentary: “We only have to be committed to the ideal that no human being on earth will ever go to prison again for a natural substance. People aren’t aware that the government has outlawed vegetables. There should be no laws against natural things. We have to drive a stake through the heart of prohibitionism.”
NORML’S National Director, Don Fiedler, also speaks, as do Ben and several locals. A band named 47 Tyme follows the speakers. This causes a problem. Seems that just beyond the park is a senior citizen’s residence. After receiving a few calls about the noise, the police decide to make their presence felt. Ben engages in conversation with them, then is told that someone has to accept the charge of disturbing the peace. Like a good Hemp Tour trooper, Ben takes the fall instead of the local organizers. He’s driven to the stationhouse, pays a $25 fine, and returns to the rally. No big deal. But it’s another reminder that there’s always a price to pay in the rally business.
March 31
It’s Hash Bash weekend, and Freedom Fighters from all over the country are beginning to converge on Ann Arbor. The first sight we see when we leave our hotels is a shiny purple bus in the parking lot. We decide to investigate. Inside is the West Virginia Freedom Fighter contingent, led by Roger the shaggy-bearded driver. Kind bud they call “hackweed” is being passed around. A coughing siege ensues. Now we know why they call it hackweed.
The morning papers bring good news. “Judge OK’s U-M Pot Rally Permit-Says U-M Violated Free Speech,” reads the front-page headline of the Ann Arbor News. In October, the University of Michigan granted NORML a permit to hold the Hash Bash at its traditional location—on the campus’ Diag. But in February, the school rescinded the permit. Fortunately, Washtenaw County Circuit Judge Donald Shelton recognized the impropriety of that decision and restored the permit literally at the 11th hour. “The University’s mishandling of the NORML permit application completely undermines its contention that any danger presented by the NORML rally is ‘clear’ or ‘present,’” the judge ruled.
But first things first. Saturday’s reserved for the first annual Freedom Fighters convention. Roger’s purple bus carts dozens of FFs to the picnic-style meeting, where spliffs are smoked, state chapter heads are elected, Chef RA’s rasta-riffic eats are chowed, and networking and partying are generally accomplished.
April 1
The Hash Bash begins at noon—without amplification. But thanks to the boys in Red Fly Nation, a PA is set up. Herer, Fiedler, Masel, Hash Bash organizer Rick Birkett, and Gatewood Galbraith, who introduces himself as the next governor of the state of Kentucky (he’s running in the 1991 race), all speak. Red Fly Nation plays a few songs before the PA is cut off at 2 PM. Even a midday downpour and numerous arrests can’t dampen the spirit of the 5,000-plus ralliers.
After the rally concludes at 6 PM, the scene shifts to the Heidelberg, where the HIGH TIMES contingent stages a high-energy benefit concert for NORML, featuring the Soul Assassins, the Nozems, and anti-folk artists Bobby Belfiore and Dave Herrera. The revelry continues through the night. Once again, the Hash Bash is a blast.
Courtesy of High Times
April 2
The backdrop for the Hash Bash was today’s pot referendum in Ann Arbor. In 1972, the city established a $5 fine for marijuana use and possession. Though the $5 fine was repealed the next year, it was written into Ann Arbor’s charter in 1974. Nine years later, another attempt to repeal it was voted down by a 61 percent majority. Now, in 1990, a referendum to raise the fine to $25 for a first offense has made it to the ballot. Hopefully, the spirit of the Hash Bash will bring voters out. A vote of no on Proposal B would keep the fine at $5.
Meanwhile, Jack, Don, and Gatewood leave for Detroit early this morning to appear on the morning show Kelly & Company. A 10 AM rally at Wayne State University is next on the agenda. (Herer’s crew handles that one.) Back in Ann Arbor, we’re moving rather slowly. Our only hope is to get to Detroit in time for a 1 PM legalization debate at the University of Detroit’s Student Union. We fill up the bus and hit the road.
Everyone on the panel is wearing a suit except for Jack, who’s wearing his tan hemp shirt (he never leaves home without it) over a tie-dyed t-shirt. Zolton Ferency, a Michigan State prof who’s running for the State Senate on a legalization platform, is there along with Rep. John Conyers and several others. Ferency quotes the following National Institute on Drug Abuse figures (1988): deaths from tobacco, 346,000; alcohol, 125,000; alcohol and drugs mixed, 4000; cocaine, 2000; marijuana, 75 (HIGH TIMES would tend to question this figure). Directing himself to Conyers, Ferency says:
“Deal with the drug problem as a public-health problem. Keep it out of the criminal justice system. It is not going to be solved by police, prosecutors, criminal courts, or prisons.”
Conyers, who is black, explains that he’s “against the way William Bennett runs the anti-drug strategy because it’s racist. When you focus on crack, you focus on blacks, by and large. The profile of the average drug user is white, middle class, and suburban. I want to change the laws that deal with the prosecution of drugs. Why don’t we get a justice system that really works—in which we get the drug dealers and the government out of it, rather than making it legal? I put treatment as a higher priority than making it all legal.”
Herer hammers away with the hemp argument. “The greatest tax on earth is the harm to the environment that the fossil fuels and synthetic fibers are causing to this planet,” Jack offers. “There is one single plant on earth that replaces 100 percent of our need for any of those—something that can be grown by American farmers, not mined by oil companies. We’re talking about hemp—the safest therapeutically active substance known to mankind.” At this point, Conyers picks up a copy of The Emperor Wears No Clothes and leafs through it.
From the audience, Ben issues his chess challenge to Drug Bizarre William Bennett or any prosecutor, narcotics officer, or anyone else who believes that marijuana is harmful to the intelligence. “I’ve been smoking it for 23 years,” he says. “If it causes permanent brain damage, I must be in bad shape—so prove it.”
Fiedler walks to the podium and addresses Conyers, who serves on several House committees that deal with drug issues. “We’re not asking you to legalize marijuana at this point, but if you’re holding hearings…”
Conyers interrupts. “Would you like to be a witness?”
“I’d love to,” Fiedler says.
“I would love to discuss the matter with you—here and in Washington,” Conyers adds.
Afterwards, Ferency tells me about his plan to legalize pot. “I’m not for taxing it. We don’t tax liquor, we sell it. In Michigan, you’re allowed to make 200 gallons of wine for personal use; I’m suggesting the same thing for marijuana. You want to grow your own pot, fine—it’s the same as wine. I deliberately came up with a plan that deals with merchandising marijuana in Michigan.
“I did that in response to our Drug Czar’s suggestion that it couldn’t be done. It can be done—very easily.”
Ferency ran for governor in 1966. He headed the state’s Democratic party for five years and was the liquor commissioner 30 years ago. He’s a lawyer by trade. “I’m the state’s best known liberal. I’ve been all over the road. I’ve been at this for 40 years. I know how it goes. I was in the anti-war movement, all the movements. What you need is middle-of-the-road presentations. People are convinced that we’re losing the War on Drugs by just reading the daily papers. They’ll listen to anybody who comes along and tells them, ‘Here’s one way we might be able to get out of this mess.’ That’s been my experience.”
Ferency’s opponent has the support of the governor. “It’s a tough struggle, it’s uphill. The governor wants that seat. All my opponent will have to do is sit in it. The governor’s raising $400,000 for her. Four hundred grand for a state legislative seat? Unheard of!” If you’d like to contribute to Zolton Ferency’s campaign—the primary is in August—send a donation to: Ferency for Senate Committee, PO Box 6446, East Lansing, Ml 48826.
Following the debate, we’re invited back to an off-campus party house. That evening, Herer is feted at a book reception at Alvin’s, a club near Wayne State.
April 3-4
Tuesday’s a rare off day for the Hemp Tour. I’m hanging out with Jack, who usually goes his separate way from the bus. He spends hours on the telephone, doing radio interviews, taking care of business. He’s a bundle of creative energy and never seems to relax.
Jack loves to see himself in print, whether he’s doing the writing or is being written about. Today’s Detroit Free Press runs a profile of Jack entitled, “Rebel With an Illegal Cause.” He’s pleased. Reporters seem to be gravitating toward the hemp issue; Jack’s book and his tireless efforts to promote the plant are the primary reasons why.
But there’s bad news, too; Ann Arbor voters, by a 53 to 47 percent majority, have decided to raise their town’s pot fine to $25.
A call from Fiedler, who’s returned to Washington, swings the mood back in a positive direction. Rep. Conyers has asked that Jack testify before the House Judiciary Committee. It’s cause to celebrate. Jack lights up a bowlful and kicks back for a few moments.
“We’re gonna win this thing, Bloom,” he barks. “No fucking way we’re gonna lose.”
Jack takes particular pleasure in converting people to his hemp message. One convert is David Hamburger, an otherwise conservative fellow who met Jack last November at the “Just Say Know” rally in Athens, Ohio. Marvin Surowitz, the organizer of the Detroit events, invited him to Athens. “Before I met Jack, I was totally on the other side—talk about quick political conversions,” says David, who is a private investor and former Bush supporter. “After the conference, I saw things differently. Cannabis, used in reasonable amounts, is an excellent natural relaxant and should be legalized. I smoke pot to increase my productivity and to take away tension headaches. But, to be honest, I find marijuana politics much more stimulating than marijuana.”
Around midnight, Jack begins mobilizing his troops for an early-morning trek to Cleveland—the next stop on the Hemp Tour. He’s scheduled to appear on The Morning Exchange TV program at 8 AM. Jack designates me as the driver. It’s an excruciating ride, but we make it right on time. A middle-aged man named Bernie Baltic is responsible for setting up the morning debate. He deposits us in a hotel and rushes Jack to the studio. Except for a change of tie-dyes, Jack’s dressed the same as he was two mornings ago. We turn the TV to channel 5 and await the debate.
The first question asked is: “Can hemp really reverse the Greenhouse Effect?” Jack rattles off all the glorious uses for hemp. The anti-drug advocate weakly challenges Jack’s hemp information and then begins reciting the standard litany about marijuana: it kills brain cells, it’s a “gateway drug,” and so on. Jack flicks these arguments away like so many marijuana ashes. From my point of view, the debate’s not even a contest.
There’s hardly any time to catch a few minutes sleep before the noon rally at Cleveland’s Public Square. Surrounded by tall office buildings and buffered by traffic, the location is perfect: No one can complain about the noise. And no one does. The rally runs five hours—Red Fly Nation plays for nearly two—without a hitch. What makes this event special is the turnout—not so much the numbers (about 400 total), but the mix of people who stop by for a quick listen. “In many ways, this has been our most successful date yet,” Ben says. “We were in front of the whole city, not just a student crowd—we had business people coming through, it was a much more mixed reception.” Even blacks, who are notably absent on the Tour, were in attendance. Thank Red Fly Nation’s funkadelic sounds for that.
John Hartman, Ohio NORML’s North Coast coordinator, who along with Ohio NORML leader Cliff Barrows organized the rally, is also excited about the “variety of people” who turned out. So where do people who attended the rally go from here? “I want them to write their representatives, take some of our literature and xerox it, pass out 100 copies here, 100 copies there—just get it out,” John says. “There’s nothing illegal about going door-to-door or standing on a street corner and handing pamphlets out. It’s a standard way of soliciting people—and the cheapest. Right now we don’t have the dollars, so it just comes down to getting out in the streets and informing people—leafletting or making calls or taking opinion polls, any contact with people.”
John invites the Hemp Tour back to his house to party and spend the night. Without people like John, the Hemp Tour would be forced to run up some pretty high hotel bills. Considering that the Tour runs on whatever it makes in sales of t-shirts and assorted products, this hospitality is invaluable.
Courtesy of High Times
April 5
Today’s headline in the Cleveland Plain Dealer reads, “Hemp is Given a New Twist—Fair Promotes Pot’s Many Uses.” In the article, a botanist from Case Western Reserve University admits he doesn’t know much about hemp other than its fiber is tough and it grows at a phenomenal rate. He suggests Flax, which is used to make linen and linseed oil, has similar properties to hemp.
During the ride down to the next stop—Kent State University—with Ben and Cliff, Ben says, “I want to reach the farm press and the farm researchers on this tour—make a particular effort to touch base at the agriculture schools, find the professors who might be motivated to take a closer look, and meet the kind of people who can convince the agriculture departments to give them permits to study the plant.”
Ben Masel is a professional activist. He not only runs the Hemp Tour, he also publishes The Zenger, an underground newspaper, out of his home base of Madison, Wisconsin. Ben’s style is more academic and less charismatic than Jack’s. He’s an expert polemicist and quite a good storyteller (his country twang and ironic outlook reminds me of Arlo Guthrie). Ben was the HIGH TIMES’ 1988 Counterculture Hero of the Year. I ask him to tell me when he first became politically active.
“One turning point was during the fourth grade, when we did Inherit the Wind as a class play. I was the teacher who was on trial for teaching evolution,” he laughs. “In the sixth grade, we were the first kids in the country to be bussed to integrate a black school. This was in Teaneck, New Jersey. By the 10th grade, we had been resegregated. While we were all in the same building, the classes weren’t integrated anymore. This led us to occupy the principal’s office in the spring of 10th grade. We held it for three days, and won most of our 13 unconditional demands. The principal resigned on the third day.
“Upon hearing about the shootings at Kent State, we got together a meeting of 150-200 students in the auditorium after school and we decided to call a strike. Next we heard that the Student Council wanted to join us. Then the principal came by and offered to cooperate with us if we called it a teach-in instead of a strike. A couple of days later, the Board of Education wanted to can the principal because one of the speakers at the teach-in had referred to ‘that motherfucker Nixon.’”
Appropriately, we arrive in Kent as Ben’s discussing his reaction to the events that devastated this small college town 20 years ago. Ben has a lot of personal history connected to Kent State University. He joined the May 4th Coalition in the late 70s in its efforts to prevent the University from building a gym over part of the area where the 1970 shootings occurred. They lost that battle. Perhaps today would be another.
The Hemp Tour was unable to obtain sponsorship from a student group for the rally. The Progressive Student Network balked out of fear that it would lose its registration if a legal problem arose. In addition, the school only allows use of a PA system in the plaza outside the Student Center for one hour a day—from noon to 1 PM. At 12:30, Ben plugs in the PA and begins to speak into a microphone. A crowd of about 100 congregate. By 1 PM, the local police are about to close in. Debbie warns Ben that they mean business, but he keeps talking until the police pull the plug at about 1:25. Ben races over to the PA and plugs it back in. The police grab him; the battle is on.
Ben clearly resists. They pull his hair. It takes four cops to lead Ben to their car, which is waiting about 200 feet away at the curb. The crowd chants, “Bullshit!” and “Let him go!” The cops don’t listen. In the chaos, a female frosh named Sharon Burns gets caught up in the activity. She and Ben are both arrested and taken to the nearby police station.
Sharon is charged with disorderly conduct and released on her own recognizance. Ben is hit with three charges: obstructing offical business, resisting arrest, and assault (they claim he kneed a cop in the groin). At first, we’re told that bail will be $1,250. After we make the necessary arrangements to pay a bail bondsman and drive six miles to Portage County, where Ben has been taken, we’re told the bail has been raised to $12,500. It’s fairly common to require 10 percent of the bond, but because of Ben’s long “rap sheet” and the fact that he’s from out-of-state (no doubt his previous run-ins at Kent State are also a consideration) they refuse to reduce the bond—at least until the morning. So Ben has to spend the night in jail.
Meanwhile, the Hemp Tour people are waiting for Debbie and me at a gallery on Water Street. Later on, Red Fly Nation and some local bands are supposed to play across the street at J.B.’s. There’s some anger over Ben’s decision to get arrested, but some good smoke mellows everyone out.
Water Street, it turns out, was where the calamitous events at Kent State began almost 20 years ago to the day. On May Day, 1970, Nixon announced that the US had invaded Cambodia. That night students poured out of J.B.’s and other clubs and into the streets; then they lit a bonfire and began smashing store windows. The next day, the ROTC building on the Kent State campus was firebombed. Two days later, the National Guard opened fire on the students.
Alan Canfora was there. He was shot in the wrist. He stood 50 feet in front of his friend, Jeff Miller, who took a bullet in the head. “As the guard got to the top of the hill and they stopped and they started to fire, I heard the guns go off and took a step away from them,” he tells me. “I thought, ‘Well, just in case they’re firing live ammunition, I’ll get behind a tree.’ I got behind one at the last possible second before a bullet went through my right wrist. It was the only tree in the line of fire. I’m convinced that that tree saved my life, because it was hit by several bullets and I could see many other bullets zipping through the air and ripping through the grass.”
Canfora puts today’s confrontation with the police in perspective when he explains: “Kent State remains now as it has been during the last 20 years—a very repressive institution which is controlled by the Republican interests in Ohio.”
April 6
Ben has a 9 AM hearing. A public defender named Bill Carroll shows up and asks for a reduction of the bond to $5,000. The judge agrees to that, plus he allows for 10 percent payment. Debbie counts out $500 and Ben is free.
Ben doesn’t exactly get a hero’s welcome when he returns to our Kent crash pad. There’s a noon rally slated for Athens in Southern Ohio at Ohio University. Herer has gone ahead and will run the rally. Cliff, Ben, and I again travel together; the bus is the last to leave.
For the first time on the Tour I get to see some pretty country. Southern Ohio is full of rolling hills. We take a few small roads to get there, with Ben doing the navigating. Does he regret the arrest? “Only that I resisted,” he says, proudly noting that it was his 106th arrest.
We get to Athens just as Jack is wrapping up. He applauds Ben’s arrest—’That’s how Ben teaches the kids,” Jack says. Plus, it got good press.
That evening, the University’s history and political science departments are sponsoring a debate/teach-in. It’s Jack and Gatewood versus Lois and Robert Whealy, a husband and wife prof team. The debate turns out to be quite a hoot.
The profs aren’t all that opposed. One point is well-taken: Don’t look for simplistic answers to our environmental problems. Gatewood proclaims, “I don’t apologize to anyone anymore about smoking pot. Any society that can accommodate alcohol and tobacco has room for pot.”
Later that night, Vicki Linker invites us all to her backwoods digs for a well-deserved and desperately-needed party (the type where dessert is served first). Red Fly Nation sets up in the living room and jams (I even get to play percussion on my fave songs—”Do the Feelin’” and “Strictly Wet”). Gatewood unknots his tie and opens his collar. Maria rolls the ugliest joints ever. Ben tries to recruit me to leave immediately for Indianapolis, where Farm Aid is scheduled to start in a few hours. He wants to leaflet the concert. Good idea, bad execution (the van barely made it to Vicki’s). Everyone sleeps it off.
April 7
Last stop for me—Columbus, Ohio. Everything I’ve been told to expect about the Columbus rally is right. This is one stop where there was little or no advance work, and it shows. The rally, tucked away on the campus of Ohio State University, fizzles. Hey, the Hemp Tour was due for a dud.
I’m ready to head home.
Tomorrow, Dayton hosts a rally, and then it’s off to a swing through Indiana (the Tour runs through May). Jack is packed and ready to roll. “C’mon, Bloom, you’re driving to Dayton,” he yells. Sorry, Jack, I’m booked on a flight back to New York. But he has me thinking. Should I spend just a few more days on the Hemp Tour?
At that moment, the bus pulls up; it’s being tailed by a cop. Apparently, Dean hopped a curb and is getting written up. Hey, you know what? This is one nutty Hemp Tour.
Federal legislation that would permit financial institutions to provide banking services to legal cannabis businesses has been dropped from a bill designed to foster competition with China, marking the sixth time the cannabis banking provisions have failed to gain the approval of the U.S. Senate after being passed by the House of Representatives.
Known as the Secure and Fair Enforcement (SAFE) Banking Act, the legislation would have permitted banks and other financial institutions to serve companies in the legal cannabis industry. Under current regulations, providing traditional banking services such as loans and payroll, checking and deposit accounts is tightly regulated by the federal government, resulting in few financial institutions agreeing to work with marijuana businesses. Critics note that the current policy forces cannabis companies to operate primarily in cash, leaving the businesses vulnerable to crime.
The SAFE Banking Act was first introduced in Congress by Democratic Rep. Ed Perlmutter of Colorado in 2013. Since then, the House of Representatives has passed the bill six times as either a standalone bill or attached to other legislation. But the measure has failed to gain the approval of the Senate.
Most recently, the House approved provisions of the SAFE Banking Act in February as part of the America Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength Act of 2022 (America COMPETES Act), a bill to support U.S. manufacturing and improve competitiveness with China. But on Thursday, Punchbowl News reported that the cannabis banking provisions have been dropped from the latest version of the COMPETES Act, which is currently in conference committee with House and Senate lawmakers. The report noted that the SAFE Act language had been dropped at the insistence of Republican negotiators.
“In the wake of the Senate’s inaction, people continue to be killed, businesses continue to be robbed, and employees and business owners in the cannabis industry continue to be excluded from the financial system,” Perlmutter, the lead sponsor of the SAFE Banking Act, said in a statement quoted by The Hill.
Activists and Industry React
After news that the legislation had not been included in the latest version of the COMPETES Act Morgan Fox, the political director for the National Organization for the Reform of Marijuana Laws (NORML), said that it “is mind-boggling that this is now the sixth time that SAFE Banking has been approved by the House but stalled by the Senate.”
“This narrowly tailored, incremental, and necessary legislation has broad bipartisan support in both chambers, and it is incredibly disappointing that politics continue to get in the way of saving lives and helping struggling small businesses disrupt and ultimately replace the underground cannabis market,” Fox said in a statement from the cannabis policy reform advocacy group. “If there is a legislative version of the Twilight Zone, the SAFE Banking Act seems to be stuck in it at this point.”
Some supporters of the legislation including Michael Sassano, CEO and founder of cannabis products manufacturer Somaí Pharmaceuticals, believe that Congress is missing an opportunity to make people who work in the industry safer.
“Congress continually drops the easy play by going for an all-or-nothing strategy,” Sassano writes in an email to High Times. “Avoiding the SAFE banking act only shows that they don’t care about the cannabis industry and the safety of our employees, but rather their pet projects that get embedded in every failed law they try and pass.”
Despite Thursday’s setback, representatives of the regulated weed industry have not given up on the cannabis banking bill, with hopes that lawmakers will add the legislation to an upcoming spending package.
“The support and political will is there to get the SAFE Banking Act across the finish line. We are encouraged by conversations about pairing the bill with other helpful cannabis and criminal justice reforms,” Steven Hawkins, president of the U.S. Cannabis Council, said in a statement. “We look forward to working with our members and allies to help get the job done.”
But Fox noted that the opportunity to pass meaningful federal cannabis reform this year is fading as the nation and the Congress head into the 2022 midterm election season.
“There are still some pathways available to get SAFE Banking approved in the current congressional session, but time is running out,” Fox added. “The Senate should not waste this rare chance for bicameral and bipartisan cooperation that would improve safety and opportunities for hundreds of thousands of people and foster economic development in a majority of states.”
Perlmutter, who in January announced he will not seek reelection this year, vowed to continue working to get the cannabis banking measure passed before he leaves Congress.
“I will continue to push for #SAFEBanking to be included in COMPETES, other legislative vehicles, or for the Senate to finally take up the standalone version of the bill which has been sitting in the Senate for three and a half years,” Perlmutter tweeted on Thursday.
The Senate Select Committee on Intelligence passed the Intelligence Authorization Act (IAA) for Fiscal Year 2023 (FY23) on June 22 which would prevent government intelligence agencies (such as Central Intelligence Agency, National Security Agency and more) from discriminating against job applicants because of past use of cannabis.
Senator Ron Wyden is a senior member of the Senate Select Committee on Intelligence, which also passed protections for whistleblowers and strengthened cyber security efforts. “This bipartisan legislation makes meaningful strides to improve treatment of whistleblowers and ensuring Congress can perform real oversight of intelligence agencies,” Wyden said in a press statement. “I applaud the committee for including my provisions, in particular an amendment ensuring that past cannabis use will not disqualify intelligence community applicants from serving their country. It’s a common-sense change to ensure the IC [Intelligence Committee] can recruit the most capable people possible.”
The press release describes the exact provision in relation to cannabis. “Prohibiting denial of a security clearance to IC personnel based solely on past use of cannabis. Senator Wyden will continue to fight to ensure that ongoing cannabis use is not the basis for denying or losing a clearance,” the release states.
Wyden shared on Twitter that Senator Martin Heinrich and Senator Kirsten Gillibrand were strong supporters of the amendment. “Big thanks to @MartinHeinrich and @SenGillibrand for their support of this common-sense provision, which will ensure the intelligence community can continue to recruit the most capable people possible.”
The entire committee of 16 individuals unanimously voted in approval of the amendment, however, it will require continued support from the Senate and House of Representatives, as well as a signature from President Joe Biden, before it can officially become law. According to Wall Street Journal, the amendment is not yet public.
In July 2021, the Federal Bureau of Investigation (FBI) updated its hiring guidelines to open up the pool of applicants as well. “Candidates cannot have used marijuana or cannabis in any form (natural or synthetic) and in any location (domestic or foreign) within the one (1) year preceding the date of their application for employment,” the updated website stated. It also states that any cannabis consumption before age 18 won’t disqualify the applicant.
Previously, the wording suggested that applicants can’t have used cannabis within three years “regardless of the location of use (even if marijuana usage is legal in the candidate’s home state).”
In December 2021, Director of National Intelligence Avril Haines provided some guidance on the topic of cannabis consumption in a memo. “…the illegal use or misuse of controlled substances can raise security concerns about an individual’s reliability and trustworthiness to access classified information or to hold a sensitive position, as well as their ability or willingness to comply with laws, rules, and regulations,” the memo stated.
Due to the federally illegal status of cannabis, clearance applicants are still recommended to abstain from cannabis consumption. “…in light of the long-standing federal law and policy prohibiting illegal drug use while occupying a sensitive position or holding a security clearance, agencies are encouraged to advise prospective national security workforce employees that they should refrain from any future marijuana use upon initiation of the national security vetting process, which commences once the individual signs the certification contained in the Standard Form 86 (SF-86), Questionnaire for National Security Positions.”
The memo also established clarification for investment of cannabis-related companies. Employees who have access to classified information and hold a sensitive position “may be impacted negatively should that individual knowingly and directly invest in stocks or business ventures that specifically pertain to marijuana growers and retailers while the cultivation and distribution of marijuana remains illegal under the Controlled Substances Act,” the memo explained. However, should an employee not knowingly invest in a cannabis-related endeavor, it would not be held against them.
The United States Supreme Court on Tuesday denied petitions to hear two cases challenging Minnesota’s refusal to allow coverage for medical cannabis through the state’s workers’ compensation program. In both cases, workers sought a review of the Minnesota Supreme Court’s decision finding that the federal Controlled Substances Act (CSA) supersedes state law, resulting in a denial of coverage for medicinal cannabis for the employees’ work-related injuries.
The Supreme Court invited the U.S. Department of Justice to file a brief in the case before making a decision. In its response, the Justice Department agreed with the Minnesota court that the CSA does preempt state law. But attorneys with the Justice Department also argued that the states have not adequately addressed the issue of federal preeminence and urged the Supreme Court to reserve judgment on evolving law.
The case was not the first time a state court had ruled on workers’ compensation coverage for medical pot. In 2014, the New Mexico Court of Appeals approved the reimbursement of claims for medicinal cannabis for work-related injuries. But rulings on similar cases in Maine, New Hampshire, New Jersey, New York and Minnesota have not been consistent. Courts in New Hampshire, New York, and New Jersey found that state law was not in conflict with the CSA and authorized workers’ compensation claims for medical cannabis. But in Maine, Massachusetts, and Minnesota, judges have ruled that federal law takes precedence.
Is the SCOTUS Decision Bad News?
Attorney Anne Davis, the co-founder of Bennabis Health, a company specializing in affordable medical cannabis access for patients, says that the Supreme Court’s decision to decline to hear the cases is not necessarily a negative outcome for patients.
“While I would’ve loved a decision by the federal government mandating that cannabis is in fact a covered benefit, [the court] deferring to the states could be good in the grand scheme of the industry,” Davis writes in an email to High Times. “The more that the Supreme Court defers to states’ rights, I think the more it helps our growing industry. If the federal government takes the hands-off approach and leaves it to states’ rights, that allows the cannabis industry to grow and expand.”
With states taking the lead on pot reform, Davis believes federal legislation that permits cannabis trade between the states would create the most favorable climate for the industry.
“The problem we’re left to deal with is interstate commerce,” said Davis. “If we can somehow navigate that, then I think state rights having control over the cannabis industry is a much better option than the federal government rescheduling and allowing big Pharma to take control.”
Some advocates for cannabis policy reform had hoped the Supreme Court would weigh in on the Minnesota cases following comments from Justice Clarence Thomas last year indicating he believes the federal prohibition on pot no longer makes sense with so many states passing legislation in conflict with federal law.
“A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the federal government’s piecemeal approach,” he wrote.
Unanswered Questions
Commentating on a case the Supreme Court declined to hear in which a Colorado cannabis dispensary challenged federal policy denying standard business deductions for weed companies, Thomas said that a 2005 high court ruling upholding the federal prohibition on cannabis possession may be out of date.
“Federal policies of the past 16 years have greatly undermined its reasoning,” he continued. “The federal government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”
This week’s action by the U.S. Supreme Court leaves many unanswered questions about the viability of workers’ compensation coverage for medical cannabis. In an analysis of the denial to grant the petitions, The National Law Review wrote that the “Supreme Court’s decision to remain on the sidelines of the debate over marijuana legalization is disappointing to many who were hoping to see the high court help to break the logjam in Congress. The decision also leaves in place the clear conflict over workers’ compensation reimbursement of medical cannabis in state court decisions and facilitates the potential for further conflict as this issue continues to percolate throughout the country.”
The Switzerland government announced on June 22 that it will lift the ban on medical cannabis, as according to an amendment to the Swiss Narcotics Act that parliament approved in March 2021. According to Agence France Presse, the government “intends to facilitate access to cannabis for medical use for patients.”
“The decision to use a cannabis-based medicine for therapeutic purposes will rest with the doctor, in consultation with the patient,” the government said of the amendment. As of August 1, patients will no longer be required to obtain permission from the Federal Office of Public Health (FOPH). However, adult-use cannabis sale and consumption will still remain illegal.
In Switzerland, medical cannabis is only allowed for patients with a doctor’s approval, or previously required approval from the FOPH. However, medical cannabis is still only allowed if the medicine contains less than 1% THC, and is licensed. Currently, only Sativex is approved for prescription to patients.
The country’s federal public law institution, Swissmedic, which is responsible for both “authorization and supervision of therapeutic products” including cocaine, methadone, and morphine could eventually be directed to manage the cannabis industry going forward.
Back in 2019, FOPH issued approximately 3,000 authorizations for cannabis patients suffering from a wide variety of medical conditions. However, the FOPH described this process as “tedious administrative procedures.” “Sick people must be able to access these medicines without excessive bureaucracy,” it stated.
In September 2021, the Switzerland government approved a recreational cannabis trial called “Zuri Can,” which is expected to begin this summer. There was one caveat, requiring that only “experienced users” should apply to participate, and this is verified by testing hair samples instead of urine or blood tests. The trial program will be held in Basel, Switzerland, and analyze results from 400 people who will be approved to buy recreational cannabis from specific pharmacies.
Also in June 2022, a new study conducted by the University of Geneva and EBP, a consulting firm, explored the benefits of full cannabis legalization. According to researcher’s findings, approximately 56 tons of cannabis is consumed every year in Switzerland. Based on this data, annual revenue for adult-use cannabis sales could collect up to $582 million Swiss francs (CHF). The industry could generate 0.06% of the country’s economy, which is roughly the same contribution as Appenzell Innerrhoden, the country’s smallest canton by population and area. Legal cannabis could also provide up to 4,400 full time jobs, in comparison to the country’s Swiss accident insurance, which has about 4,200 employees.
Ultimately, as seen in other countries, there are many benefits to establishing a regulatory framework for cannabis legalization. Study author and Research Associate at the Institute of Sociological Research of the University of Geneva Dr. Oliver Hoff explains that it’s time that Swiss cannabis laws received an update. “The simulation shows, that the current form of regulation produces [an] economically inefficient result,” Hoff said in a statement. “While artificially high profit margins enable illegal actors to generate generous profits, consumers suffer from inadequate transparency regarding products and quality. The healthcare system and preventative measures have a hard time accessing consumers with problematic consumption patterns and the state lacks access regarding regulatory, fiscal and public-health oriented initiatives.”
FOPH Head of Policy and Implementation, Adrian Gschwend, also provided a statement about the timing of this study. “The study comes precisely at the right time as the commission for social and healthcare issues of the national assembly has recently started a legislative proposal regarding the legalisation of cannabis,” Gschwend said. “The results show that both the current illicit market as well as a liberal commercial market inflicts costs on the public while individuals generate big profits. We thus need a well-regulated market that ensures both protection for children and adolescents as well as health protection measure.”
