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January 15, 2021 INTRODUCTION

The Complexity of Marijuana and Hemp

By Daniel F. Gourash

Legalization of marijuana and hemp at the state/territory level throughout the United States has resulted in a highly complex legal and regulatory landscape of which judges must be aware. Following the November elections, marijuana is now fully legal in 15 states, the District of Columbia, Guam, and the Northern Mariana Islands. Twenty states and the Territories of Puerto Rico and the U.S. Virgin Islands permit medical use of marijuana and have decriminalized recreational use. Thirteen additional states permit medical use of low THC/high CBD products for medical use.

But wait a minute; it remains fully illegal under federal law as marijuana is a Schedule I drug under the Controlled Substances Act. This dichotomy between state and federal law makes the sale, possession, and use both legal and illegal at the same time in states that permit some form of marijuana use. Add to the mix the legalization of hemp (the same plant as marijuana but with low levels of THC) under the 2018 Farm Bill.

Questions arise about whether lawyers can represent clients involved in the legal/illegal activity of the cannabis industry. Judges are called upon to discern between marijuana and hemp. Banks that are regulated at the federal level are reluctant to do business with those involved in the cannabis industry, resulting in a multibillion-dollar industry forced to transact in cash, a dangerous proposition on many levels. Further, decriminalization has resulted in making legal what used to be illegal, leaving behind a disproportionately minority population with criminal records. Issues of social equity resulting from the War on Drugs are now front and center and need to be addressed in legislative policy and in the courts. This issue of The Judges’ Journal examines many of these issues.

In his article “Back to the Future,” Ron Cassie looks back at the prescience of then Baltimore Mayor Kurt Schmoke who started the national debate on decriminalization of drugs with his landmark speech in April 1988 before the U.S. Conference of Mayors in which he suggested that criminalization was expensive and ineffective and exacerbated public health. Schmoke’s words then are important to remember now as decriminalization has become reality.

In “High Time for Change: Cannabis Expungement Statutes,” Alana Rosen examines the inequity resulting when one segment of the population can possess and use cannabis without fear of prosecution while another group lives with the collateral consequences of prior cannabis convictions. She advocates for criminal record expungement procedures to be included in legalization legislation and examines existing and pending legislation and procedures at both the state and federal levels.

Katharine Neill Harris and William Martin, in “Persistent Inequities in Cannabis Policy,” look at the history of the war on marijuana and its racial disparity in enforcement. They examine the racial disparity that continues to exist among those who obtain licenses to participate in the burgeoning cannabis industry and call for policies to improve social equity as a central focus of reform initiatives.

Judge Stephanie Domitrovich, Ph.D., provides helpful insight on the impact medical marijuana legislation is having on courts. Her article “State Courts Coping with Medical Marijuana Legislation: Discerning Strife or Harmony?” examines cases involving the lawful medical use of marijuana in a variety of contexts, including when under probation, when seeking to qualify for a diversionary program, when seeking a reasonable accommodation from an employer or school, or whether the mere odor of marijuana is sufficient for probable cause.

Issues arising from the legalization of hemp are addressed in three other articles. In “The Rise of Hemp Litigation and the Primary Jurisdiction Doctrine,” Lisa Pittman examines the legalization of hemp, what qualifies as hemp, the regulatory oversight of hemp, and the deference courts are giving to that regulatory oversight in hemp litigation. Recognizing the difficulty in determining whether a plant is legal hemp or illegal marijuana is the focus of articles written by Lynn Garcia and Peter Stout (“Hemp or Marijuana? The Importance of Accurate and Reliable Forensic Analysis to the Fair Administration of Justice”) and by Fred Niehaus and Jeff Beverly (“The Science and Testing of Cannabinoids”), in which the authors provide the scientific basis for testing and discuss the limitations of existing test methods and the law enforcement and marketplace demand for certification of standardized test processes.

In his article “Banking Marijuana Business: A Primer on This Emerging Field,” Adrian Snead analyzes the regulatory quagmire for depository institutions in providing financial services for the cannabis industry. He discusses the “uneasy truce” between federal regulators and legalized states that now exists and discusses the future outlook under federal legislation now pending in Congress.

Finally, in “Ethical Issues for Lawyers and Judges in the State Approval of Cannabis: One Toke over the Line?,” Dennis Rendleman provides an in-depth analysis of lawyer and judicial ethics when state and federal laws conflict regarding the legality of marijuana.

We are grateful for the valuable insights our authors have provided and hope you find this issue of The Judges’ Journal to be enlightening.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Daniel F. Gourash


Daniel F. Gourash is chair of the TIPS Cannabis Law and Policy Committee and the vice chair of the JD Lawyers Conference. He is also director of the Insurance Coverage and Complex Litigation Groups of Seeley Savidge Ebert & Gourash Co., LPA in Cleveland, Ohio.