A controversial amendment barring people with felonies from participating in the federally legal hemp industry — for 10 years following the conviction — is included in the bill’s final language.

This week, the 2018 Farm Bill continued to wind its way through the legislative process, with hemp legalization appearing imminent after the bill left the conference committee on Monday and passed the Senate on Tuesday with the language of hemp legalization still intact within the bill.

The bill now only has to pass a final vote in the House of Representatives before heading to President Donald Trump for a signature into law. A vote is expected in the House in the next few days.

Late on Dec. 10, the congressional conference committee released the final bill after months of debate. (For those unfamiliar with the long path a bill has to take into becoming law in the United States: The conference committee occurs after a bill passes both the House of Representatives and the Senate. The conference committee resolves any differences between the two versions of the bill that passed the separate houses, and then returns the final bill back to Congress for two separate final approval votes.)

Then, on the morning of Dec. 11, the Senate voted to approve the final bill. Senate Majority Leader Mitch McConnell, who was the lawmaker who inserted the hemp amendment into the 2018 Farm Bill, signed it with a pen made from hemp.

Now that it has left the conference committee, the final language of the 2018 Farm Bill is available for analysis. The bill runs a cool 807 pages long, but the section around hemp legalization is relatively succinct, especially given the magnitude of the newly legal industry it would create.  

Here are the major takeaways from the 2018 Farm Bill’s language about hemp legalization, under “Subtitle G — Hemp Production”: [Read the full text here]

  • Hemp would be defined as Cannabis sativa L.plants and its derivatives with less than 0.3 percent THC and would be permanently removed from the Controlled Substances Act. 
  • The hemp industry would be regulated by the Department of Agriculture, not the Drug Enforcement Administration. This reflects the bill’s larger trend of treating the plant more like an agricultural crop than as an intoxicating substance.
  • Hemp-derived cannabidiol (CBD) would be moved out of the purview of the DEA, because hemp’s “extracts, cannabinoids and derivatives” would also be included in the definition of hemp. 
  • State governments would have the ability to restrict the hemp industry within their borders, same as they can with alcohol.
  • Interstate commerce of hemp products would be allowed. However, states would not be able to restrict the interstate transport of hemp.
  • Tribal governments would also be able to create their own rules and regulations around the hemp industry.
  • Anyone with a felony “relating to a controlled substance under state or federal law” would not eligible to participate in the legal hemp industry for 10 years after their conviction. There would be only one exception: Those people with felonies who were granted hemp licenses under the federally mandated and state-approved hemp pilot programs under the 2014 Farm Bill.

The Drug-Related Felony Ban: The War on Drugs Survives

This point about people with felonies being barred from the hemp industry garnered the most controversy as congressmembers debated the 2018 Farm Bill. 

In an August op-ed in HEMP, attorney Cristina Buccola argued that banning people with drug felonies from participating in the hemp industry was “egregious.” 

“The term ‘felony’ and its use in the Hemp Amendment is divisive: It’s employed as a scare tactic to conjure up scenarios of dangerous criminals engaged in nefarious activities, thereby requiring their elimination from the hemp industry and validating the ban itself,” she wrote.

And she also made a crucial point that the felony ban only applies to those found guilty of crimes relating to controlled substances — but not “people convicted of violent felonies (rape, murder, pedophilia) and felonies of moral turpitude (embezzlement, fraud, theft).” 

In some states, Buccola argued, drug laws are so conservative that a person could find themselves slapped with a felony for merely possessing any amount of marijuana at all.

“The application of this ban has distinctly discriminatory effects: black, brown and poor Americans are far more likely to receive harsher penalties than their white, wealthier counterparts for the same offenses involving controlled substances,” she concluded. “Under the proposed ban, these groups will also be denied the ability to participate in an industry that is otherwise legal for everyone else but them. It will also close out some of the very people responsible for developing the industrial hemp sector and credited with industrial hemp’s widespread acceptance today. In no uncertain terms, this ban will have a disparate impact on already marginalized groups, and imbue a new industry with racist, classist, and arbitrary barriers to entry.”

The final Farm Bill language takes a few small steps away from the Senate version of the Farm Bill’s total ban on people with drug-related felonies. The final Farm Bill does grandfather in those people with drug-related felonies currently working in the state hemp pilot programs. It also grants access to people with drug-related felonies the ability to enter the industry if 10 years have passed since their conviction. 

However, these are small steps that do not address the concerns that such a rule will encourage the discriminatory policies of the War on Drugs to continue in the federally legal hemp industry.

Before the final text of the bill was released, Rep. James Comer (R-KY)told CQ Now that “neither side got what they wanted” when it came to the ban on people with drug-related felonies. 

But drug reform advocates appear to have received a shorter end of the stick, as even a partial ban on people with drug-related felonies starts the hemp industry off with discrimination codified into law. 

“At a time when there is overwhelming bipartisan support in Congress for criminal justice reform, it’s unthinkable that this same Congress would take steps to ban returning citizens from benefitting from new job and economic opportunities that legalizing domestic hemp cultivation will open up,” Grant Smith, deputy director of national affairs for the Drug Policy Alliancetold Marijuana Momentin an email. “A felony ban would also be imposed on states that are trying to create opportunities for formerly incarcerated people. The proposed ban would also undermine efforts to make hemp an agricultural commodity by reinforcing the idea that hemp needs to be treated differently than other crops.”

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