50 States

50 States: Wisconsin

By Jon Young

50 States: Wisconsin

Medical: CBD oil only
Recreational: No
Decriminalized: No

August 31, 2018: A Marquette Law School Poll released last week found that 61 percent of Wisconsin voters want the state to legalize recreational cannabis (up two points from 2016), while only 36 percent support the ongoing prohibition. Moreover, nearly half the state will have an opportunity to make their legalization support official this November. Fifteen counties and at least two cities will have a ballot question that basically asks, "Do you believe that marijuana should be legalized and regulated like alcohol?" The results are not binding, but they should build momentum if a solid majority votes in favor of legalization. The ballot question might also help rally support for pro-cannabis candidates like Senator Tammy Baldwin and gubernatorial hopeful Tony Evers

What's Past Is Prologue

Wisconsin’s attempts to legalize cannabis by Rep. Melissa Sargent in 2013 and 2015 failed to move past the committee process, and progress anytime soon looks unlikely in the highly partisan state. However, the Menominee Tribe, a federally recognized nation of Native Americans in northeastern Wisconsin, looked to federal guidelines to potentially cash in on an industrial hemp crop after Gov. Scott Walker stalled their hopes for a casino. But would vague federal directives leave enough legal leeway for a cannabis operation?

In 2014, the Department of Justice released a memorandum de-prioritizing the prosecution of marijuana production and sales on Indian reservations based on what is known as the “Cole Memorandum” and its eight law enforcement priorities, which include selling to minors, drug trafficking and possession and/or use on federal land, among others. This lead many to believe that, as long as a tightly controlled and regulated system was in place, the DEA would turn a blind eye to cannabis operations.

While some saw this as carte blanche for reservations to determine the legality of cannabis in their jurisdiction, the Drug Enforcement Administration’s (DEA) 2015 raid on the Menominee Tribe’s 30,000-plant industrial hemp operation made it clear that there is no tried and true path to avoiding federal interference in growing operations.

One paragraph in particular sheds light on how vague the directive actually is: "Nothing herein precludes investigation or prosecution, even in the absence of any one of the factors..., in particular circumstances where the investigation and prosecution otherwise serve an important federal interest."

The DEA contended that the plants seized were in fact marijuana plants, however, initial testing showed them to be hemp. Then an additional test with a different kit tested positive. Whether the testing was rigorous enough or not, the message the federal government is sending remains unclear and depends largely on how Attorney Generals choose to pursue federal guidelines and/or interests within their state, according to U.S. News and World Report.

“It increasingly looks like the Justice Department guidelines are not being interpreted in the same way as they were intended,” said Robert Porter, a tribal law expert. 

The directive and subsequent raid sets back federal tribal trust and economic policy a few decades, according to Lance Morgan, another tribal law expert.

“The new federal policy of ‘sort of’ allowing tribes to get into the marijuana business is especially cruel and unusual because it encourages investment, but after the investment is made, the federal government comes and shuts it down and the investors lose all their money,” Morgan said.

Meanwhile, Wisconsin remains one of the most draconian states in terms of drug sentencing, with simple possession of any amount, including a single joint, resulting in a misdemeanor and up to six months in prison and a $1000 fine. Subsequent offenses are an automatic felony with up to three and a half years in prison and a $10,000 fine. A bill jointly introduced by Rep. Mandela Barnes and Sen. Chris Larson to lessen the penalty for possession of less than 25 grams to a civil fine also failed to get past committee in the 2015-2016 legislative session.

While a bill was enacted in April of 2014 to legalize CBD oil for seizure patients, it was seen as mostly symbolic as CBD advocates were unable to find a single doctor in 2015 to prescribe it, and there are no legal means to obtain or produce the oil within the state.

Whether Wisconsin will reflect the shifting attitude of its voters, who are beginning to poll heavily in favor of fully legalizing cannabis and regulating it like alcohol, at 59 percent per a Marquette University Law School Poll, depends on a reticent and conservative Republican-held senate. This makes any sort of change on the cannabis front unlikely anytime soon. 

Photo credit: Unsplash.

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