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Madeleine Grant and Brooke Wrage

Nebraska News Service

LINCOLN--Nebraska lawmakers continue to push for marijuana legislation this session. On Feb. 19, the Nebraska legislature Judiciary Committee heard six bills relating to the legalization and decriminalization of marijuana.

Substance possession penalties

State senators are considering a bill to change the penalty for controlled substance possession. LB 287, was introduced by Sen. Justin Wayne of Omaha to lessen penalties for possession of unusable amounts of controlled substances under the Uniform Controlled Substances Act.

Possession of a controlled substance that was only residue would be changed from a Class IV felony to a Class I misdemeanor. If a controlled substance would consist of more than residue, a person would still be guilty of a Class IV felony.

The bill defines residue depending on the way a substance is sold. The substance must be considered an unusable amount to be classified as residue.

Wayne foresees opposition to the amount being determined by weight and plans to work with county attorneys in order to determine a solid way to classify what is considered usable or not.

Joe Nigro, a Lancaster County public defender, testified in favor of the bill.

Felony files have been increasing over the last four years. This has been largely driven by an increase of files considering the possession of small amounts or residue of controlled substances according to Nigro.

“I don’t believe the drug use has increased over the last number of years,” he said. “But it appears that more items of paraphernalia are being sent in for testing. These cases burden the system, the crime lab takes three to four months to test items.”

Criminal defense attorney Spike Eickholt supported the bill on behalf of the ACLU of Nebraska. He said that this bill is a way to mitigate and create distinction between small users or incidental users versus users who possess a significant amount of controlled substances.

Drug prescription schedules

LB 301 was introduced by Sen. Ben Hansen of Blair. The bill proposes to adopt federal drug policies under the Uniform Controlled Substances Act. This would specifically include redefining terms and changing drug schedules and penalties to be the same as federal laws. Drug schedules are categories that drugs fall into depending on the drug’s acceptable medical use, abuse or dependence potential.

The bill would modify the Nebraska Uniform Controlled Substance Act to adopt the federal controlled substance standard. This includes references to cannabinol oil and FDA-approved drugs containing CBD such as the brand name Epidiolex which is commonly used to treat seizures.

“Currently we are hindering pharmacists from all of the state by not having an updated law that conforms our drug prescription schedules to the federal standards,” Hansen said.

Pharmacist Marcia Mueting spoke in favor of the bill. She said that updating the state law is important for pharmacy personnel who provide FDA-approved medications daily.

Medical use cannabis

LB 522 is intended to clarify definitions relating to marijuana under the Uniform Controlled Substances Act and list nabiximols as a Schedule III controlled substance. Wayne introduced the bill. Nabiximols is a form of cannabis containing THC and CBD. A Schedule III controlled substance is drugs that have moderate to low abuse potential that may be accepted for medical use.

Jan Dalke Anderson, medical affairs director for Greenwich Biosciences, spoke in support of the bill. Greenwich Biosciences researches and creates cannabinoid medications. She testified about multiple sclerosis, a disabling disease that causes involuntary muscle stiffness and spasms. Standard treatment methods for this disease are ineffective in 40% of patients, as they often fail in providing symptom relief.

However, MS can be treated with medically prescribed dosages of nabiximols in the form of a spray.

Dalke Andersen said Greenwich Biosciences is working with the FDA to approve nabiximols for the treatment of MS in adults. It is already approved and available in 28 countries.

She said a trial-tested therapeutic dosages as a spray and the trials showed a 36% to 77% decrease in reduction of spasticity scores, which is a clinical tool that measures muscle tone.

Dalke Anderson said the prescribed amount would be different than someone who is using marijuana on their own because it would be hard to measure the dosage and get the same product each time.

Wayne asked for the bill to be held by the committee, meaning he wishes the bill does not reach the floor for consideration at the moment because he doesn’t expect it to be approved by the FDA until later this year.

Marijuana decriminalization

LB481 would decriminalize marijuana possession and drug paraphernalia offenses. Newly elected Sen. Terrell McKinney of Omaha proposed the bill to address the rising issue of mass incarceration and criminalization in minority communities due to marijuana charges.

“When discussing regulation of marijuana, we must acknowledge that it carries remnants of the ‘War on Drugs’ targeted at Black and brown people and was arguably never meant to increase public safety in the first place,” McKinney said.

In Gov. Pete Ricketts’ State of Address this year, Ricketts advocated for a new state prison that would cost $230 million. McKinney said the decriminalization bill would make more economic sense by decreasing the prison population rather than building new prisons. In July 2020, the Nebraska Department of Correctional Services declared a prison overcrowding emergency when capacity reached over 151% across the state’s 10 prisons.

“One way we can help us address this concern is by enacting this legislation,” he said. “The continued criminalization of marijuana has been to the economic detriment to the state of Nebraska.”

Regulations and commission of marijuana sales

Wayne proposed LB546, a bill that would set up a framework for the commercial sale of marijuana for anyone 21 years old and older. Similar to LB481, this bill would decriminalize marijuana as well.

This bill would also create a Nebraska Marijuana Enforcement Commission, responsible for regulating the sale of marijuana. Anyone who wants to sell marijuana would be required to apply for licensure from the commission. The commission would prioritize “social equity applicants,” or individuals who have lived in impoverished areas impacted by cannabis-related arrests.

Wayne said the commission would decrease entry barriers into this industry for people who historically have not profited from marijuana sales.

“I would fight and filibuster any bill dealing with marijuana that doesn’t have a social equity justice component to it,” Wayne said. “Equity just isn’t about making sure people can participate in the industry, but it’s also about clearing records to make sure that outside the industry, they won’t be held back.”

Spike Eickholt testified in support of the bill on behalf of the ACLU of Nebraska and said that marijuana criminalization is not working.

“All the horror stories you’re seeing about what marijuana does to people is happening when we have prohibited marijuana and criminalized it,” he said. “One of the costs is the clear, disparate treatment against people of color.”

Legalized recreational marijuana use

Wayne also proposed LR2CA, a constitutional amendment that would place the legalization of recreational marijuana use on the November 2022 general election ballot. If voters vote yes, the legislature would enact laws regulating the sale and distribution of marijuana for those 21 years old and older.

“This is not saying whether you endorse recreational marijuana or not, you’re saying let the people decide,” Wayne said. “It gives a chance for the voters to decide whether we should legalize marijuana for those who are 21 years and older.”

Col. John Buldoc, the Nebraska State Patrol superintendent, testified against LR2CA because he was concerned about unintended consequences.

“Despite state efforts to regulate the marijuana industry, legalizing the sale and use of marijuana has resulted both in an increase in violent crimes and traffic deaths,” Buldoc said. “I fear Nebraska will become a source state rather than just a destination state, ultimately contributing to the dangerous problem the black market poses to public safety troopers.”

Following opponent testimony, Wayne responded by saying the decision to legalize marijuana should ultimately be up to Nebraskans.

“What’s ironic is government officials coming in here saying that we don’t want you to vote on something,” he said. “And if we’re saying our voters aren’t educated enough, if our police are saying that in front of this body, that is a problem.”

The committee took no immediate action on any of the bills.