Q&A: Should States With Legal Cannabis Be Granted Federal Waivers?

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The Council on Criminal Justice, a Washington-based think tank, released a report with fifteen recommendations for federal criminal justice reform, including one to “create waivers for states with legal marijuana”—in other words, to bridge the gap between state and federal agencies while cannabis remains federally illegal. For years, these states have had to go it alone when it comes to crafting regulations for cannabis, for example, in determining driver impairment thresholds and product quality control standards. 

These recommendations have some weight. They were proposed by a fourteen-member task force formed by the Council last year, which was chaired by former congressman and Georgia Governor Nathan Deal, and which counts among its members former Philadelphia Mayor Michael Nutter and former US Deputy Attorney General Sally Yates, and others.

The task force wrote in May, “Congress should adopt legislation directing the US Departments of Justice and Health and Human Services to work with other federal agencies and state stakeholders to develop a federal waiver process or contractual framework for states that have legalized medical and/or recreational cannabis and for those states aiming to do the same.”

Cannabis Wire spoke with John Tilley, a task force member and senior fellow at the Council, to learn more about how the report came together. Tilley is the former Kentucky Justice Cabinet Secretary, and the former chair of Kentucky’s House Judiciary Committee. Tilley also formerly chaired the National Association of State Legislature’s Criminal Law and Justice Committee. (This interview was lightly edited for length and clarity.) 

Nushin Rashidian, Cannabis Wire: How and why did this task force come together?  

John Tilley, Council on Criminal Justice: At the close of 2018, a bipartisan group of advocates, elected leaders, and families met at the White House to watch President Trump sign the FIRST STEP Act into law. Passed with overwhelming support from conservatives and progressives alike, the Act eased some mandatory minimum sentences, addressed troubling prison conditions, and expanded opportunities for incarcerated people to earn credits toward an earlier release.

The momentum and bipartisan spirit that propelled the Act toward passage demonstrated that the same conditions that have enabled a wave of reforms in the states had, at last, produced some movement in Washington. We were determined to accelerate that momentum: to identify the actionable, politically viable steps that the federal government can take now to produce the greatest improvements in public safety and the administration of justice.

Our Task Force was a diverse group. Convened by Council leadership, members included the general counsel of Koch Industries, a former mayor and police chief, experts in substance use and victim rights, a leading federal defender, a former Deputy Attorney General of the United States, and two people who have experienced imprisonment.

The group is independent of the Council and solely responsible for the content of the reports. Members strive to reach consensus on findings and policy proposals through private, nonpartisan discussions. We are asked to join a consensus signifying that we endorse the general policy thrust and judgments reached by the group, though not necessarily every finding and recommendation. Task Force members may append to the group report an additional or dissenting view.

Cannabis Wire: How was the scope of the task force’s work determined? And why was it decided that cannabis be included?

John Tilley: Task Force topics are selected by Council leadership and meetings are facilitated by Council staff and consultants, but neither the Board of Directors nor Board of Trustees approves or disapproves the findings and recommendations. We arrived at our priorities after vigorous deliberation. While we did not see eye to eye on everything, we did commit to issuing bold recommendations that are also pragmatic and hold potential to have substantial impact.

The group reached a consensus that a recommendation should be made with regard to cannabis for several reasons. As we deliberated, thirty-three states and the District of Columbia had legalized cannabis for medical use. Of those jurisdictions, eleven states and DC have legalized recreational supply and possession of cannabis for people aged twenty-one and older. This shift in public policy reflects public opinion: Two in three Americans support legalizing cannabis for nonmedical purposes. But it’s not that simple. Legalization has consequences for health, public safety, financial markets, and social equity. Production, prices, taxation, and the enforcement of regulations are at stake. And the wave of action in the states has created a clash between state laws and the federal Controlled Substances Act. States are, in effect, licensing individuals and businesses to commit federal felonies.

Legalization and decriminalization, meanwhile, have not eliminated illicit markets for marijuana. Despite the spread of cannabis legalization, 70 percent of Americans live in a place that does not allow recreational use. Local opt-outs also make it difficult for some to obtain legal cannabis, and possession for people under twenty-one is still prohibited. Illicit actors will continue to profit until coordinated state and federal policies exist to deter them. We determined that the federal government must act to resolve this conflict and confusion, and thus we issued our detailed recommendation.  

Cannabis Wire: No such legislation exists at the federal level that includes a waiver. Has the task force presented this recommendation to lawmakers in Congress? If so, how would you characterize those conversations?

John Tilley: We believe these recommendations are a roadmap for reform. The mission was to identify the actionable, politically viable steps that the federal government can take now and we believe this report has met its objective.   

As for specific steps, the Council on Criminal Justice has begun an aggressive schedule of briefings with all of those who could help us make the recommendations a reality. Specific legislation, of course, is a large part of the reality we hope to see. That said, Covid-19 has forced us to adjust. The initial release was delayed several weeks due to the pandemic and plans for its rollout have been altered. That said, we will continue briefings and seize opportunities to push the report, its fifteen recommendations, multiple implementation steps, and the supporting research and evidence.

Cannabis Wire: How did you arrive at a waiver?

John Tilley: Our complete rationale is contained in the report. But in short, we concluded that neither a federal crackdown nor a hands-off approach is advisable. In the absence of cannabis rescheduling, or its legalization at the federal level, the Task Force recommends that Congress and the Administration develop a state waiver process, or contractual framework. Without it, states and the industry will continue to exist under an illusion of sovereignty where circumstances can change at any moment. A balanced and thoughtful accommodation from the federal government would provide confidence to states, stabilize the market, and help address many of the myriad safety and health problems.  

Cannabis Wire: Is there any precedent for this approach?

John Tilley: Yes. For example, federal waiver programs enable states to bypass the requirements of federal programs such as Medicare and Medicaid to experiment with different ways of financing, organizing, and delivering health care.

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