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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Did you hear the big news from the White House in the last few days on cannabis? President Biden announced that he will pardon anyone convicted of simple marijuana possession by a federal court. He also wants cannabis removed from the list of so-called Schedule 1 drugs like heroin, that are seen under federal law as having no medical uses. Heroin and weed are actually in the same categorization under federal law. Ironically, some people say that change could complicate the burgeoning industry of legal cannabis dispensaries. We'll talk about that.

Here in New York State, 175 such dispensaries are expected to get licenses any week now under the state's new legalization law. Governor Hochul was also reported to be looking for better tests to be developed to detect driving while high on weed, nothing like the blood alcohol level for driving while intoxicated exist so far. We will talk about these developments now with Alyson Martin, co-founder of Cannabis Wire, which reports on marijuana policy and the industry. She is also an adjunct professor at the Columbia University Graduate School of Journalism. Alyson, always good to have you. Welcome back to WNYC.

Alyson Martin: Thanks so much for having me again. Love being here.

Brian Lehrer: Can you explain more first about who exactly President Biden pardoned?

Alyson Martin: Yes, so it's not actually going to affect as many folks, I think, as some might have hoped, but it's about 6,500 people convicted of simple possession at the federal level.

Brian Lehrer: Who gets convicted of federal marijuana possession? Aren't most people arrested for that caught by local police, so it's a state or local crime, not federal?

Alyson Martin: There are actually a lot of folks at the state level as well. There are quite a few folks. According to the Last Prisoner Project, there are about 3,000 people convicted of higher-level offenses who remain in federal prisons and up to 30,000 who are still in prison in several states.

Brian Lehrer: Listeners, this is one of the things we could do on the phones in this segment. Anybody listening right now convicted at any time in your life of simple marijuana possession at the federal level and you had to stand trial or strike a plea bargain, whatever, in federal court, 212-433-WNYC, 212-433-9692. If anyone happens to be covered by this pardon from President Biden, we'd love to hear your story. 212-433-WNYC, 433-9692 or tweet @BrianLehrer. Alyson, Biden also urged governors to pardon people similarly convicted at the state level. Is it too early to say if many governors are taking him up on that?

Alyson Martin: Well, yes and no. This is where politics are going to be at play in the United States. Obviously, not all governors are on the same page when it comes to cannabis policy. There are a handful of governors who have already made these moves like Illinois Governor J.B. Pritzker. There have been about 20,000 such pardons. Nevada Governor Steve Sisolak, about 15,000. Colorado Governor Jared Polis, about 1,500 pardons. These are obviously states where there's adult-use cannabis.

Meanwhile, you've got states like Arkansas where Governor Asa Hutchinson basically said Biden had "waved the flag of surrender in the fight to save lives from drug abuse." Nebraska Governor Pete Ricketts said that Biden's moves were "exactly the wrong direction for our country." I think when it comes down to the question of how will governors heed this guidance from President Biden, it's going to come down to states where-- Governors have dug their heels in on cannabis in an oppositional way, that likely won't go that route with the moves.

Brian Lehrer: You mentioned states that have legalized adult-use cannabis as they call it, recreational sales. The New York and New Jersey laws, I believe, include expungement provisions. Maybe they all do. Is expungement different than a pardon? I know you're not a lawyer. Do you happen to know?

Alyson Martin: Yes, it's good to note that I'm not a lawyer yet. Expungements essentially, poof, the record disappears. If someone's applying for a job, a person doesn't have to check that box. With a pardon, the person has to note that, but they can say that they've been pardoned. This is semantics, but they're different processes, right? Pardons are granted by the executive branch of government. Expungement processes are generally judicial.

Brian Lehrer: From the way you just described it, it sounds like expungement is better than a pardon. Because if you're applying for a job or something, you don't even have to mention it. With a pardon, if I heard you right, you do have to mention it, but say you're pardoned.

Alyson Martin: Well, they're different and they apply to different folks. It comes down to basically who or which entity has the power to go about it. Really, the main thing is that the process of removing or lessening the effect of cannabis convictions as a whole, it removes barriers for folks, right? If somebody has a cannabis conviction, it's tougher to get a job. It's tougher to secure housing. There are all these barriers that can build up over time. Really, what it's about as a whole is easing up some of those barriers, removing them or lessening them, and getting folks back out into an easier way to build their lives up.

Brian Lehrer: I think we have Fred in Brooklyn on the line who is going to talk about a federal marijuana charge in his life. Fred, you're on WNYC. Thank you so much for calling in.

Fred: Hey, Brian, how's it going?

Brian Lehrer: Good.

Fred: When I was 19 years old, I was arrested and convicted. I had to plead guilty to a lesser charge, to a misdemeanor. That was 17 years ago. I'm a white male and I, 100%, am certain that me being able to see down this charge was, in fact, because of my race and my age, and that if I was a person of color, I think that I would have--

Brian Lehrer: You think white privilege, the perception of you as a young white person, helped you be able to plea down to a misdemeanor. Was that a federal charge?

Fred: It was a federal charge, yes. I was in Virginia. It was an all-white courtroom. Federal misdemeanor, possession of controlled substance, marijuana.

Brian Lehrer: If you're comfortable saying, how did you wind up getting arrested on federal charges as opposed to Virginia law, where I'm sure it was also illegal?

Fred: Because I was caught in possession of the cannabis on federal property in Virginia.

Brian Lehrer: There you go. How do you feel seeing this sweeping pardon come from the White House?

Fred: It was a huge, emotional thing for me. My charge was 17 years ago. I completely turned my life around since then. I've gone to grad school. I have owned my own company. Without that second chance, I would be in the same boat as a whole lot of people doing jail time. I luckily got off with almost no consequences, except for a small fine. That second chance for me really helped me, but I still had to jump through a whole bunch of hoops applying to grad school. It comes up applying to any job.

I work with children now, so I've had to be fingerprinted and I've had to explain this. I've had to get the letters from the court to show that it was non-violence 17 years ago. I haven't gotten in trouble since. All these minor inconveniences and embarrassment are nothing compared to what a lot of people have gone through. Now, with this pardon, supposedly, I don't know exactly how it works. I think it's a great step forward because a cannabis charge, marijuana charge should not ruin somebody's life.

Brian Lehrer: Fred, thank you for your story. Thank you for seeing yourself in a big social context and not just as an individual. I appreciate that and I appreciate your call and willing to talk about this on the radio, which I'm sure is not easy for you. Alyson, that was quite a story in a number of ways. One way was here was this guy who, as he describes it, was in the mildest circumstance of a federal marijuana conviction.

He was able to plead it down to a misdemeanor. It feels like he got relative leniency for being white, and yet he's had to jump through all those hoops with jobs and other things, grad school as he described it with even that. That's really an example, I guess, if we extrapolate out to everybody else in his circumstances and treated more harshly by the government of what a simple marijuana possession conviction can do to somebody's life.

Alyson Martin: The hoops are different person-to-person, but there's no question that these charges, they directly equate many hoops that people need to jump through. There's also no question that there's a racial element to cannabis charges because the ACLU has found and there-- There was a watershed report more than a decade ago that found that while Black and white people consumed cannabis at similar rates, Black people were almost four times as likely to have their consumption result in a cannabis-related charge. It's also without question that, typically, white folks are better resourced when it comes to navigating these hoops. That was a really illuminating story. I'm glad he called in.

Brian Lehrer: Do you happen to know the racial breakdown of the 6,500 or so people who President Biden's pardon applies to?

Alyson Martin: I don't. I haven't seen that data yet.

Brian Lehrer: Going onto another part of what the President announced, can you explain what he said about cannabis as a Schedule 1 drug and what that means?

Alyson Martin: Yes, so Biden asked that the process to review the Schedule 1 status begin. Basically, essentially, what that means is Biden asked the attorney general and the Health and Human Services secretary to review cannabis' Schedule 1 status. The FDA's going to conduct a scientific review, make recommendations to the DEA. There are really important distinctions between rescheduling and descheduling though. If cannabis is rescheduled but still scheduled, it will be treated more like a pharmaceutical. Importantly, it will acknowledge the medical use of cannabis. If cannabis is descheduled, it could be treated more similarly to alcohol or tobacco, which, obviously, I think many folks in the cannabis industry would prefer.

Brian Lehrer: Alcohol is not treated as a drug. In a sense, that would be regulated by the Food and Drug Administration?

Alyson Martin: Correct.

Brian Lehrer: It's just treated as a product?

Alyson Martin: Correct.

Brian Lehrer: Did the President specify whether he wanted cannabis to be descheduled like alcohol or rescheduled, still put it in a category of drug like a pharmaceutical but a different category than it's in now?

Alyson Martin: This is really interesting. There's only so much that the President can do himself. A lot of folks were like, "Well, why can't he just legalize?" He can't unilaterally just make these moves, right? President Biden can't directly remove cannabis from the Controlled Substances Act himself, but he can direct the appropriate officials to do so. He did however campaign on a plank. He essentially promised to decriminalize cannabis and automatically expunge cannabis convictions. His announcement last week was a huge, huge announcement. It was the most significant announcement about cannabis from a president ever. He walked toward his campaign promise. He didn't quite do what he pledged.

Brian Lehrer: You have an article on Cannabis Wire. Headline, Reactions to Biden's Cannabis Announcement Pour In. Were there some common themes?

Alyson Martin: Yes, there were a lot of common themes. There was a lot of loud applause, a lot of, "Finally," and a lot of support from cannabis regulators also, which caught my eye. In states where cannabis is legal, there was a lot of, "We support President Biden in this effort." There were a lot of folks essentially saying, "We're standing by to help in any way that we can." CANNRA, the Cannabis Regulators Association, there was a lot of support for this. It's not a controversial move that Biden made.

There are very few people in this country, I think, that believe that folks should be sitting in a prison for a simple possession charge. That was, by and large, a lot of the reaction. There was some reaction from folks within the cannabis industry that essentially said, "Do more." President Biden could have issued wider pardons, for example. While there's only so much that President Biden himself can do, himself alone, he does obviously wield a lot of power and hold a lot of influence.

He can push and nudge, if you will, folks in these federal positions to move. I would say that those are the broad-stroke themes. There were, as I mentioned, governors and some members of Congress and state lawmakers who essentially came out, firmly opposed the announcement alongside other substances as I mentioned as Arkansas Governor Asa Hutchinson noted. There were some mixed-bag responses. By and large, there was a lot of support.

Brian Lehrer: David in Manhattan has a story. You're on WNYC. Hi, David, thanks so much for calling in.

David: Hi, Brian, thanks for taking the call. I listen to you every day. You're a national treasure.

Alyson Martin: I agree.

David: [chuckles] I think the entirety of the US. New York agrees.

Brian Lehrer: Let's move on from this.

David: Move on from this and Brian's turning red. I have a story that is not directly about the federal laws, but it does deal with the interaction between local state laws and the Feds and the government anyway. I got done for the horrendous crime of smoking one joint or the reservoir when I was a teenager in New Jersey. The judge who was very enlightened saw fit to hold the charges in advance, meaning that in theory-- sorry, pending as six-month probation and no further evildoings.

Of course, I got through that fine. Theoretically, the charges were dropped, so that's better than anything else. The charges, as if they never happen in theory. Very happy about that, went on with my life. About 40 years later, when I went to apply for a global entry, I was denied at first for an arrest record, which, by the way, you shouldn't be doing anything from the basis of an arrest anyway. It should be on a basis of a conviction.

Any case, I said, "What are you talking about?" It turned out it had to do with that arrest, which was allegedly charges held in advance, pending probation. I was good. Nothing happened further. Now, I'm being told, "No." Eventually, I got it cleared up and got my global entry, but it did make me a bit skeptical about the reliability of these judicial actions where you're theoretically being told everything's fine and it turns out it's not.

Brian Lehrer: Wow, that is quite a story. Alyson, I think this might be one on which we would be better doing a separate segment with a lawyer in addition to this one and talk about some of the hoops, some of the imperfections as David is describing there. Have you heard stories like that before though where charges were supposedly dropped but wound up haunting people for decades later anyway?

Alyson Martin: Yes, I'm curious if this one just came down to human error. Of course, there are aspects of all of this where paper ends up on the wrong desk. Somebody types the wrong number. A file gets misplaced on a desktop or something. I'm curious if this is what was at play for you here.

Brian Lehrer: David, any thought on that?

David: Yes, sure. I completely understand that. That could certainly be all that this is about. Drawing too many broad conclusions could be a mistake, but I don't know what else to say. That could be it. Maybe it's something more nefarious. Probably it's not, but I just thought I would point out that mistakes can be made even if that's all it was.

[crosstalk]

Brian Lehrer: Thank you, David. Thank you very much. Even that, if it was just that, requires some kind of diligence, vigilance on the part of the system to make sure things that are supposed to happen happen. If the federal government reschedules marijuana as something less than a Schedule 1 like heroin but regulated by the FDA, what would that do to the expanding industry of dispensaries? I don't know why they call them dispensaries. They could just call them stores now that they're not just for medical purposes, but what would it do to that expanding industry if all of those products were suddenly regulated by the FDA?

Alyson Martin: Well, that is a rising, rumbling concern in the cannabis industry, right? If cannabis is rescheduled and moved down in the scheduling, that could really throw the existing state-level industries. They're different state-to-state. There's this wide, vast patchwork quilt of cannabis laws, this grand experiment, right? That could really throw things into disarray and really upend. I think it could really upend things in a number of ways.

I think what a lot of people are thinking about is the extent to which entities like the FDA would regulate and how they would regulate cannabis and what that would mean as it trickles down to the state level. There are a lot of questions when it comes to that. That's part of where my reporting is right now is piecing together all of these different scenarios and what that would mean state-by-state because the laws in different states are so different. There's no national standard for impairment.

There's no national standard for testing for potency or pesticide. There's no national standard for marketing and advertising. Any move at the federal level would force the implementation of those kinds of rules and regulations, which would then-- You have these state programs that have built these foundations. Some of which, if you think about Colorado and Washington, it's the tenure anniversary now. Those programs have been added for quite some time now. They would have to fit within this broader national federal framework.

Brian Lehrer: Well, if the FDA were to regulate marijuana, if your reporting is up to this yet, how would that differ from the regulation that's already in effect in all these states? I know you said it's different from state to state, but I think they're regulating for content and quality already, right? For purity, it's one of the reasons that I think customers of the legal dispensaries like shopping there, even though it might be more expensive than the black market because there's some regulation for purity and contaminants.

It's also labeled like edibles are labeled. This gummy is 5 milligrams of THC or whatever it is, so people know what they're getting. Those are similar to the kinds of things we see on drugs that are regulated by the FDA. In what ways, if you know, are cannabis products not already being regulated that the FDA might start?

Alyson Martin: Well, as of right now, the FDA isn't regulating cannabis at all. It's not regulated at the federal level. What the industry right now is waiting for, and consumers, are guidelines that will guide the future of the CBD industry. That's what's currently underway from the FDA. As far as national regulation of cannabis, that doesn't exist yet. Any further moves at the national level would kick that into motion.

What you are rightfully noting though, Brian, is many states have statewide regulations for things like pesticides and molds and mildews and heavy metals and all that, and potency like THC, warning labels that go on, things like edibles. At the federal level, that doesn't exist yet. This would really be creating a framework from ground zero and that would be what's to come.

Brian Lehrer: Another person's experience. Alex in Manhattan, you're on WNYC. Hi, Alex.

Alex: Hey, I'm just calling in because it was exciting to hear a previous caller speak about applying for global entry with an expunged record for an arrest. I'll just add that I'm also a white male who is very lucky to get merely a slap on the wrist for a marijuana arrest in 2001. In 2015, when I went to apply for global entry, I also got a really shocking surprise that, in fact, that record still existed.

Brian Lehrer: Oh, wow, so also when you applied for a global entry. Global entry, is that like the TSA pre kind of--

Alex: Like a TSA pre-check. Yes, exactly.

Brian Lehrer: Yes, so quickly through the airport. Interesting. Now, he said his charges were dropped after six months because he was just put on probation and there was no additional violation. You said "expunged." Do you think you were in the same legal category?

Alex: I do believe so because my understanding of the expungement was that it required 6 months or it may have been 12 months without any additional criminal issues.

Brian Lehrer: Alex, thank you very much. In fact, we may have a story, Alyson, for you to follow up on-

Alyson Martin: Yes, that's so interesting. Global entry.

Brian Lehrer: -on Cannabis Wire, so there's two. You know what? We have two more. I'm going to take one more because I don't want to just spend all our time when we have some other issues to get to hearing these story after story, but we're getting story after story. There's the two we took. There are two more lines on hold. We'll hear one more. Regina in Brooklyn, you're on WNYC. Hi, Regina.

Regina: Hi. I was listening to David and I just wanted to say, the charges are held in advance, contemplating dismissal after six months, but they really never go away. My story doesn't involve cannabis. It involves when I was 17, I was arrested for using a slug in the New York City subway. Again, the judge put these charges aside in advance and said they would be expunged after six months. 22 years later when I went to adopt my son, they came up. I think this really is a systemwide error.

Brian Lehrer: Thank you very much. Okay, so that wasn't for marijuana. Rob, in Jersey City, yours was, right?

Rob: Yes, I had a similar situation. I had an expungement and I applied for global entry. The first time I went to use it, I was at Newark Airport. All of a sudden, the receipt comes out of the machine that's supposed to let me breeze through and it's got a big black X on it. Then they said, "Go see that officer over there," and I was brought down to a holding room. It was actually quite intimidating.

I was questioned for not a long time. Maybe about 20 minutes, but it was like, "Hey, what's up with this here? What happened?" I had to explain what happened, and then they made me wait and it was a fortified-- I couldn't get out of this room. It was an interrogation room. Then I was told, "Okay, just wait. Sorry, okay. I put some notes in your account. It should be better the next time."

I went through JFK and the same exact thing happened again. Down to the holding pen, held for about an hour. Now, I just recently used it. I used other methods. I said, "I'm not going through that anymore." I recently just came back into the country with my wife from traveling abroad and I said, "All right, I'm going to try it." This time, it worked, but I didn't use my global entry for about five years because I was just so paranoid about getting held at one of the airports again.

Brian Lehrer: Traumatized by these intimidating interrogation experiences. Rob, thank you very much for that story. Wow, Alyson, we're going to leave this piece of it here, but when is an expungement not an expungement? I think we've got a story.

Alyson Martin: Yes, for sure. The global entry item, I know that that data machine is obviously powerful. Man, I didn't realize how far back it was scraping and what it was popping up because, really, an expungement is not supposed to pop up like that. That's a fascinating follow-up for sure.

Brian Lehrer: Alyson, New York State's legalization law passed last year to remind everybody is supposed to result in 175-- that's a number that I've seen, 175 dispensary licenses being granted by the state very soon. Predictions have been that the first ones would open for business around the end of this year. Social justice is supposed to be a criterion for prioritizing applicant, people who've been caught in the web of the criminal justice system with respect to marijuana but have gone on to business careers despite that. How does your reporting indicate any of that is going?

Alyson Martin: Where the rollout stands right now, 175. That breakdown is 150 people "equity applicants." People with some kind of cannabis conviction that qualifies or somebody in their immediate family like a spouse or a parent. I think it's two years of business experience that would qualify somebody. Then there are 25 nonprofits that will be selected or up to 25 nonprofits that will be selected, which was the latest that I heard, and where the rollout stands right now. We're still waiting on a couple of key announcements. One from the Dormitory Authority about where, specifically, the first adult-use or recreational shops, the dispensaries will be located, and also from regulators, from the Office of Cannabis Management about who specifically are the first batch of successful applicants.

Brian Lehrer: Do you have a projected date when we're going to hear? Has the governor or anybody else given an indication?

Alyson Martin: The old crystal-ball question. Yes, so Governor Hochul and regulators keep saying that the first shops will open before the close of 2022. As you know, I'm a healthy skeptic. I think it could be before the end of 2022. It could be early '23. As I mentioned, some of those important announcements still need to come down the pike for the process to stay on track.

Meanwhile, it's harvest season in New York State. It's "Croptober" as the regulators have called it. The first crop of legal cannabis is being harvested. This cannabis has been grown on farms by distressed farmers who have conditional cultivation licenses. These cultivation licenses won't be forever, but they're growing the first legal crop. This is going to be the cannabis that is expected at least to line the shelves of New York State's first adult-use shops.

Brian Lehrer: Croptober, you say.

Alyson Martin: Croptober, yes.

Brian Lehrer: Was it a good growing season? Has your reporting found that out yet?

Alyson Martin: Well, the Office of Cannabis Management, they went to three different farms. One up in Columbia County near where I grew up, one out on Long Island. It's a mixed bag based on who you ask. Some are reporting that it's hemp biomass. It's not as high-quality cannabis as you might find out on the West Coast. It's probably going to be farm-to-farm, but also some folks are reporting that it's extraordinarily high-quality cannabis. Like anything else, it'll be up to the consumer. The cream will rise to the top, so to speak.

Brian Lehrer: I guess that's one of the things about state-to-state legalization rather than federal. If I read correctly, these crops can't cross state lines, so any marijuana sold in New York State has to be grown in New York State. For people who've gone to buy in New Jersey or Massachusetts in our listening area, the crops have to be grown in those states. You can't bring a California strain that people might like into this area, that kind of thing. Is that accurate?

Alyson Martin: Yes, so it's federally illegal technically to rent a Zipcar and drive to the Berkshires and bring it back to New York City. It's also federally illegal to grow cannabis in Pennsylvania to be sold in New York State. I believe that's eventually going to change, but it's going to require a change to federal law to allow that for interstate commerce. Yes, there are plenty of folks. If you go to any shop in New Jersey or Massachusetts, you can see plates from all over the Northeast.

Brian Lehrer: Yes, and I remember we did a segment when Massachusetts first started a number of years ago, especially a dispensary or two in Great Barrington, which is so near the New York line, the closest place to New York City at that time that there were a lot of New York license plates seen in Great Barrington that year. Now, there's New Jersey and Massachusetts, and soon New York. The DWI tests, the New York Post reported that story of Hochul trying to fast-track research on a meaningful roadside or a media test like there is for alcohol in driving. What do legal states do now?

Alyson Martin: It's also a little bit of a patchwork, but by and large. I think Governor Hochul, I think there was a request for information to come up with a better impairment test. This is one of the thorniest policy areas for cannabis policymakers because there's no national standards. What the vast majority of states rely on is something called a DRE or a drug recognition expert, which is essentially an extra-trained cop like a police officer who has special training to detect cannabis impairment.

It's obviously up to the police officer's discretion. It's not as accurate because there could be an element of human error involved too. Without a national standard like with alcohol, it leaves some room, as I mentioned, for error. There are researchers at, I believe it's UCLA, who are developing, essentially, a breathalyzer, but a breathalyzer even still wouldn't work in all cases because of things like edibles.

There's also that outstanding issue of the cannabis plant affecting two different people very differently based on things like tolerance, based on things like weight, whether somebody has eaten, whether somebody has even any real exposure to cannabis. The impairment question is going to come up again and again, I think, until there's some sort of better solution, not just at the state level but also the federal level. This is also something that the Federal Department of Transportation is also thinking about.

Brian Lehrer: Last question for now. Do you have reporting on if there are more traffic crashes after legalization in legal states?

Alyson Martin: Yes, so the data on that, there is some data that shows that there has been an increase in crashes, but that also starts to be parsed out in a difficult-to-understand way because of multiple substances that are consumed, and also whether somebody was actively impaired versus having metabolites in their system, right? If I consume today and then I get pulled over on Halloween or I get into an accident on Halloween, that may not mean that I'm actively impaired. There's also a bit of a data collection issue and how that data is understood later on.

Brian Lehrer: Alyson Martin, co-founder of Cannabis Wire, which reports on marijuana policy and the industry. She is also an adjunct professor at the Columbia University Graduate School of Journalism. Thanks for your reporting and thanks as always for joining us.

Alyson Martin: Thanks so much for having me.

 

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