Federal farm bill legalizes hemp, but bars participation based on criminal record

In the past six years, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on a person’s ability to achieve employment, housing, education and public benefits, and participation in civil society.  In stark contrast, Congress has not dealt with the problem of reintegration for more than a decade—either by reducing federal collateral consequences or by restoring rights to people with federal convictions.  The new farm bill continues this trend.

Enacted on December 20, 2018, the bill puts in place a new regulatory regime for the legalized cultivation and sale of hemp, a variety of the cannabis plant grown for industrial uses.  At the same time, the bill adds a new collateral consequence to federal law (which already has more than a thousand): anyone convicted of a drug-related felony may not participate in legalized hemp production for 10 years after their date of conviction, unless they are part of a hemp pilot program authorized by the 2014 farm bill.  An earlier version of the farm bill would have banned people with drug-related felony convictions from participating in hemp production for life, so the final bill is somewhat more progressive.

This new restriction reflects and contributes to an ongoing practice in which many jurisdictions that have legalized marijuana have excluded people with marijuana convictions from participating in this booming new industry.  Moving in the other direction, some jurisdictions such as California and Massachusetts—recognizing racial disparities and other injustices of the war on drugs—have enacted policies to clear marijuana convictions, allocate marijuana tax revenue to communities disproportionately affected by past drug policies, and encourage full participation in legalized marijuana industries by members of disproportionately affected communities.

The farm bill—Public Law 115-334: Agriculture Improvement Act of 2018—enacts a variety of hemp provisions, including adding legalized hemp production-related provisions to the Agricultural Marketing Act of 1946 (7 U.S.C. § 1621 et seq.).  The newly added Sec. 297B(e)(3)(B)(i) of the Agricultural Marketing Act of 1946, contains the new collateral consequence:
Except as provided in clause (ii) [a grandfather clause for people participating in the industrial hemp pilot program authorized by the 2014 farm bill], any person convicted of a felony relating to a controlled substance under State or Federal law before, on, or after the date of enactment of this subtitle shall be ineligible, during the 10-year period following the date of the conviction—
(I) to participate in the program established under this section [plans under which a state or tribe regulates hemp production] or section 297C [when a state or tribal plan is not approved, the production of hemp is subject to a plan established by the Secretary of Agriculture]; and
(II) to produce hemp under any regulations or guidelines issued under section 297D(a) [the Secretary of Agriculture’s implementing regulations and guidelines].