By Neal Pollack, The Cannabist Staff

AUSTIN, Texas — On the afternoon of Tuesday, May 9, Jax Finkel, the executive director of Texas NORML, was frantically trying to find a bill. Somewhere, deep in the catacombs of the Texas state Capitol, House Bill 2107, the first comprehensive medical marijuana bill to clear a committee in the state’s history, was getting shuttled around. It needed to be located immediately. She says, “I was literally walking between offices looking for the cart.”

Just days before, HB 2107 had passed out of the House’s Health Committee by a vote of 7-2. From there, it was a five-step process to move the bill through the system to the Calendars Committee, which would then schedule the bill for a debate and vote on the House floor. Finkel says this process “usually takes three business days, but it can be done in a matter of hours.” At this point, hours were all they had left.

The Calendars Committee met at 5:30 p.m. for a quick five-minute roll call of approved bills, which Finkel livestreamed on Facebook in the hopes HB 2107 would be on the list. It wasn’t. Finally, at 7:30 p.m., the bill arrived, ready for approval. But if the Calendars Committee didn’t reconvene to schedule by 10 p.m., then the bill would crash. And the Legislature wasn’t going to meet again until 2019. Actual human lives hung in the balance of a minor bureaucratic procedure.

It was a political miracle that Texas had even reached this point. In 2015, against most predictions, Gov. Greg Abbott signed into law the Compassionate Use Act, a limited and highly restrictive bill that allowed a small number of children with intractable epilepsy access to low-THC cannabis medicine containing non-psychoactive cannabidiol (CBD). But not only did the law exclude the vast majority of potential medical marijuana patients, and not only did it keep patients from having access to any cannabis products containing THC, it still has yet to be fully implemented. Story after story continue to appear in the local and national news about Texas medical marijuana “refugee” families, forced to leave their homes and head to states where medical marijuana is legal so their children could get the treatment they needed.

When it came to medical, most advocates in the Texas marijuana-rights movement didn’t expect much from this legislative session, which ends May 29. They instead turned their attention to decriminalization legislation (HB 81 and companion SB 170) that would establish a system of civil penalties for weed possession, which cleared committee early but then later died on the House floor without a vote.

In the state Senate, José Menendez filed a comprehensive medical bill last November, SB 269, but it has sat dormant in committee as the GOP-dominated body pursued other legislative priorities, like banning sanctuary cities and telling transgendered teens which bathroom to use.

In the House, Rep. Eddie Lucio III, a Democrat from Brownsville, saw a political opportunity, and a chance to do some good. After watching a heartwrenching YouTube video in which the Zartlers, a North Texas family, treat their teenage daughter’s severe autism with vaporized cannabis, Lucio III checked to see if a companion medical bill had been filed in the Texas House. It hadn’t. Thus HB 2107 was born. “We filed it right away,” Lucio III tells The Cannabist. “Just based on what I had read, I knew it was the right thing to do.”

Lucio III reached out to Rep. Jason Isaac, a Republican from Dripping Springs who had shown sympathy toward medical-marijuana reform, to sign on as cosponsor to HB 2107. But it languished in the House for months after it was first filed in mid-February. With the end of the legislative session on the horizon, activists decided that something had to be done quickly.

Speaking to lawmakers’ minds, hearts

In the last week of April, they hastily put together a press conference on the Capitol steps, emphasizing testimony from conservative Christian mothers and veterans with PTSD. “It is God’s plant and he gave it to us for good,” one mom said. Others held signs that said, “Cannabis saves lives.”

Behind the scenes, advocates were also working the phones. The bill’s fate lay in the hands of Walter T. “Four” Price, an outspoken Christian Republican who serves as chairman of the House Committee on Public Health. Three families from his district in Amarillo pressed his office with phone calls, including relatives of a teenager with Crohn’s disease and another family that had recently been forced to move to Trinidad, Colorado, to take care of a young child with epilepsy.

Legislation to allow patients access to whole-plant medical marijuana progressed further than it ever had in Texas in 2017. (Denver Post file photo)

Says Heather Fazio, the Texas political director of The Marijuana Policy Project: “We wanted him to see that it’s not just Austin that wants medical marijuana. There are even people in Amarillo.” On April 27, Price scheduled HB 2107 for a hearing.

Because of scheduling conflicts, that hearing didn’t begin until almost 10 p.m. on Tuesday, May 2, and it ran into the early hours of the morning. Yet the Public Health Committee stayed riveted as advocates ran through an extraordinary series of testimonies. Doctors and medical researchers testified about marijuana’s vast potential as a medicine. One after another, constituents presented a series of tragic stories that would have broken Scrooge’s heart. The politicians heard from disabled veterans, desperate mothers and fathers, the sick, the sad, the dying, people in pain. At one point, HB 2701 cosponsor Isaac, who’s not on the committee but was there in support, had to step off the dais to grab some tissues. Few dry eyes were left in the room by the time the hearing ended.

Word got around the House fast. “Some hearts were changed on that night because of the reality of what families and veterans were going through,” says Terry Franks, Isaac’s chief of staff. “It hit them hard. I don’t think they realized what an important issue this is for folks.”

Early the next day, Lucio III and Isaac were on the House floor, looking for support. It was easy to find. When they started, the bill had five cosponsors. By the time they were done, it had 77, including 28 Republicans. A majority of the House now not only supported medical marijuana, but they supported it so wholeheartedly that they wanted their names on the bill. In an absurdly partisan political season, only medical cannabis had been able to bring people together.

Lucio III credited the activists, who have been working tirelessly to change people’s minds. “These advocates have been reaching out to these members, sharing their hearts, talking about the difference in quality of life,” he says. “People had already been educated. I was just the one to execute it.”

Then Price, even though he’d voted against the Compassionate Use Act in 2015, scheduled HB 2107 for a committee vote for Friday, May 5. He voted against this bill, too, but it sailed out of committee on a 7-2 vote. “Allowing that to happen makes Representative Price a hero,” Fazio says. “He demonstrated incredible professionalism, and we value that.”

The nail-biting began. Could HB 2107 make it through the bureaucratic process in time? “We don’t see anyone on the Calendars committee who would have an opposition to this bill,” Lucio III says in a phone call from the House floor after the bill cleared the committee. “But the timing is not our friend.”

Over the weekend, advocates were in overdrive, calling, emailing, pleading. Out of nowhere, whole-plant medical cannabis had an upset chance to become the law in Texas, prompting an early response: “Rejoice!” Finkel posted on the Texas NORML Facebook page.

At 7:30 p.m. on May 9, as HB 2107 officially arrived at the Calendars Committee office, Isaac desperately called for a point of order on the House floor, asking that the committee quickly convene. The House, which was busy debating (and eventually approving) a bill to allow state-funded adoption agencies to reject applications from LGBT, Jewish, and Muslim families, didn’t hear his plea. By 10 p.m., the dream was dead.

“We will continue to fight”

A visibly disappointed Lucio III and Isaac recorded a hasty video (watch below), saying that they would continue to fight on for the families and veterans of Texas. “In this time of divisive politics,” they wrote in a letter to grieving supporters, “we have found bipartisan agreement that the well-being of our loved ones suffering from debilitating conditions should rise over the fray of Left and Right. … We will continue to fight for the patients suffering in Texas who could benefit from medical cannabis.”

Lucio III and Isaac both stressed that in 2019, a medical cannabis law would be their top priority from Day One of the legislative session, which could prevent further bureaucratic tragedy. This assumes that they’re re-elected, as every Texas House member has to run every two years. In an interview, Lucio III says: “My level of commitment has grown significantly. It’s become a labor of love. My wife keeps saying, ‘This should be your legacy work, to help these families.’”

Meanwhile, activists are going to have to spend another legislative session looking to gain rights that, by 2019, likely will be commonplace throughout much of the country. Heather Fazio says it’s “going to be a campaign issue.”

“People want someone’s head on a pitchfork,” Texas NORML’s Finkel said after the bill’s demise. “They are frustrated and angry. And you know what? They should be. They are dying. It’s awful. But they’re going to have to get involved during the full cycle…We finally find this bipartisan bill that so many people could agree on, and it was too late.”

Video by Rep. Jason Isaac and Rep. Eddie Lucio III after HB 2107 failed to get to the House floor for debate and vote:

By The Associated Press

HARTFORD, Conn. — Democratic legislative leaders are proposing to legalize the retail sale of marijuana, authorize at least one new casino and “pave the way for tolls in Connecticut” as ways to balance the state’s deficit-plagued budget for the next two fiscal years.

The Republican proposal does not legalize the sale of marijuana or authorize a casino or institute tolls.

House and Senate Democrats say their plan does not increase the sales, personal income or corporation taxes. Republican House leaders say their revised budget ensures every Connecticut community will receive an increase in local school funding. They contend their proposal doesn’t raise taxes and mitigates municipal aid losses by reallocating funds.

It comes a day after Democratic Gov. Dannel P. Malloy released an updated budget that changed how education funding is distributed and reduced overall aid to cities and towns by $362 million more than his original budget from February.

Everyone had to make adjustments after new revenue projections showed the deficit for the fiscal year beginning July 1 had grown from $1.7 billion to $2.3 billion.

The updated plan released Tuesday will be part of the bipartisan budget negotiations lawmakers are scheduled to begin Wednesday with Gov. Malloy.

By The Associated Press

DOVER, Del. — The state Senate is set to vote on a bill expanding the permissible uses for medical marijuana in Delaware.

The measure to be voted on Tuesday adds debilitating anxiety to the list of conditions and illnesses for which medical marijuana can be prescribed. The anxiety definition includes generalized anxiety disorder, panic disorder, obsessive-compulsive disorder, and social anxiety.

The bill also removes the requirement for a psychiatrist to sign an application for someone seeking to use medical marijuana for post-traumatic stress disorder. Instead, any physician would be allowed to verify the application.

Medical marijuana already is allowed for the treatment of chronic or debilitating diseases or conditions including terminal illness, cancer, HIV and AIDS, amyotrophic lateral sclerosis, intractable epilepsy and severe pain that has not responded to medication or surgery.

By The Associated Press

BALTIMORE — A medical marijuana company is seeking an emergency motion forbidding the Maryland Medical Cannabis Commission from issuing any final licenses to grow the drug.

The Baltimore Sun reports that Alternative Medicine Maryland asked a Baltimore judge on Monday to issue a temporary injunction since the commission appears poised to grant final licenses.

The company wants the court to first weigh in on whether the law was followed during the process. It argues a lawyer for the state acknowledged last week that regulators didn’t consider applicants’ races when awarding preliminary licenses, as required by law.

The commission is scheduled to meet Wednesday to discuss the progress of 15 companies that won initial approval. None are led by African-Americans.

The commission’s chairman didn’t respond to a request for comment.

Information from: The Baltimore Sun

By Nancy Gertner and Chiraag Bains, Special To The Washington Post

Last week, Attorney General Jeff Sessions instructed the nation’s 2,300 federal prosecutors to pursue the most serious charges in all but exceptional cases. Rescinding a 2013 policy that sought to avoid mandatory minimums for low-level, nonviolent drug offenders, Sessions wrote it was the “moral and just” thing to do.

Sessions couldn’t be more wrong. We served as a federal prosecutor and a federal judge respectively. In our experience, mandatory minimums have swelled the federal prison population and led to scandalous racial disparities. They have caused untold misery at great expense. And they have not made us safer.

Mandatory federal drug sentencing is unforgiving. A person with one prior drug felony who is charged with possession of 10 grams of LSD, 50 grams of methamphetamine, or 280 grams of crack cocaine with intent to distribute faces 20 years to life. With two priors – no matter how long ago they occurred – the penalty is life without parole. As one federal judge has written, these are sentences that “no one – not even the prosecutors themselves – thinks are appropriate.”

They waste human potential. They harm the 5 million children who have or have had a parent in prison – including one in nine black children. And they wreak economic devastation on poor communities. Studies have found, for example, that formerly incarcerated employees make 10 to 40 percent less money than similar workers with no history of incarceration and that the probability of a family being in poverty increases by almost 40 percent when a father is imprisoned.

Still, in 2003 then-Attorney General John Ashcroft pushed line prosecutors to charge mandatory minimums whenever possible. His policy helped grow the federal prison population from 172,000 to nearly 220,000 over the next 10 years. This was part of a wider national trend that grew the country’s incarcerated population to 2.2 million, almost 60 percent of them black and Latino.

In 2013, Attorney General Eric Holder recognized that this system of mass incarceration was at odds with the Justice Department’s values. He told attorneys to reserve the most severe penalties for the most serious offenses. That meant charging cases in a way that would not trigger mandatory minimums for a specific group of defendants: nonviolent, low-level drug offenders, with no ties to gangs or cartels, no involvement in trafficking to minors, and no significant criminal history.

Holder’s policy was part of an emerging criminal justice reform movement. Since 2009, more than half the states have passed legislation to relax mandatory minimums and restore judicial discretion – including deep-red Georgia, Louisiana, Mississippi, Oklahoma, and South Carolina. A new crop of prosecutors is openly questioning the use of long prison terms for minor drug crimes. And a bill to ease federal sentencing has bipartisan support in Congress.

Sessions is bent on reversing this progress.

It would be one thing if Holder’s reform efforts had failed – but they did not. The federal prison population fell for the first time after 40 years of exponential growth. It is down 14 percent over the past 3½ years. While we need a wider conversation about how we sentence all offenders, including violent offenders, state and federal, this was a start. The 2013 policy sent a message about the need to be smart, not just tough, on crime, and the role of prosecutors in that effort.

Sessions’ assault on the past few years of progress might also make sense if mandatory minimums for minor drug offenses were necessary to combat crime – but they are not. A 2014 study by the U.S. Sentencing Commission found that defendants released early (based on sentencing changes not related to mandatory minimums) were not more likely to reoffend than prisoners who served their whole sentences. That is, for drug charges, shorter sentences don’t compromise public safety. Indeed, research shows it is the certainty of punishment – not the severity – that deters crime.

Sessions’ fixation on mandatory minimums might also be more palatable if they were cost-effective – but they are not. Federal prison costs have ballooned to $7 billion, more than a quarter of DOJ’s budget, driven by a population that is nearly half drug offenders. And yet as detailed by the conservative American Legislative Exchange Council last year, most experts believe that expending public resources to incarcerate these offenders is profoundly inefficient.

Sessions’ defenders will say his policy only requires prosecutors to charge the defendant’s true conduct and apply the statutes Congress enacted. But floor statements from legislators show that Congress intended these mandatory minimums to be used against “kingpins” and “middle-level dealers,” not the minor offenders to whom they have been applied.

One of us served as a federal prosecutor under Holder and had mandatory minimum charges at his disposal. The message from the top down was that prosecutors were to pursue justice. Winning did not mean getting the longest sentence possible. It meant getting the right sentence, one that fit the crime and that respected the interests of victims, defendants, and the public.

The other of us served as a federal judge for 17 years, including during the heyday of the Ashcroft regime. She believes that roughly 80 percent of the sentences she was obliged to impose were unjust, unfair and disproportionate. Mandatory penalties meant that she couldn’t individualize punishment for the first-time drug offender, or the addict, or the woman whose boyfriend coerced her into the drug trade.

Under Sessions, prosecutors will be required almost always to charge mandatory minimums, however unjust. They will bind judges’ hands even when the facts cry out for more measured punishment. The result will be great suffering. And there is no good reason for it.

Gertner, a federal district judge in Boston from 1994 to 2011, has taught sentencing law for 19 years and is a professor at Harvard Law School. Bains, a prosecutor and senior counsel in the Justice Department’s Civil Rights Division from 2010 to 2017, is a fellow at Harvard Law School.