Civic Register
| 5.22.20

What is Marijuana Legalization?

Do you support marijuana legalization?

BACKGROUND

Cannabis is a plant that can be cultivated as marijuana, a drug used for medical and recreational purposes, or industrial hemp. It has been regulated at the federal level since the 1930s, but in recent years public support for the prohibition has begun to dwindle and restrictions have eased, primarily at the state level. 


OVERVIEW

Restrictions on the use of cannabis were first enacted in the early 1900s at the state level and by the 1930s, every state had adopted laws and regulations aimed at preventing marijuana addiction. The patchwork of state laws prompted the federal government to get involved with marijuana regulation as it was becoming “a national menace” in the words of Harry Anslinger, the commissioner of the Federal Bureau of Narcotics (the DEA’s predecessor). 

When he testified before Congress about a bill to regulate marijuana, Anslinger told lawmakers the substance caused some users to “fly into a delirious rage” and “commit violent crimes” while others “will laugh uncontrollably” or suffer “a complete loss of sense of time or a sense of value.” In his hour of testimony, Anslinger also stoked cultural fears by citing instances of minorities using the drug before committing crimes. 

Despite testimony from the American Medical Association that there was “no evidence” of marijuana’s danger, Congress passed the marijuana prohibition bill with little further debate. President Franklin D. Roosevelt signed the Marihuana Tax Act of 1937 into law, which effectively banned the substance through a legal “catch-22”: Marijuana could only be legally possessed after users obtained a tax stamp that couldn’t be purchased without providing details about the amount and location of their location — details that incriminated the user in illegal possession.

The prohibition of marijuana (and the “War on Drugs” more generally) has had a profound effect on U.S. crime and law enforcement policy to this day. The Drug Policy Alliance notes that over 700,000 Americans were arrested or cited for violating marijuana laws in 2014 — 88% of which were for possession only.

Another lingering point of contention in the marijuana debate is the so-called “gateway drug” theory, which suggests that using the drug will lead to the use of more dangerous drugs. That suggestion was controversial even in the 1940s, as New York City Mayor Fiorello LaGuardia commissioned a study on marijuana use in the city. The research rebutted the notions put forward by Anslinger (who dismissed the study), finding that its consumption didn’t contribute to the use of harder drugs or a factor in causing crimes or juvenile delinquency.

Following a lawsuit brought against the U.S. government by Timothy Leary — a famed advocate for psychedelic drugs — challenging the constitutionality of the Marihuana Tax Act, the Supreme Court unanimously struck down the law in 1969 because it violated the Fifth Amendment's protection against self-incrimination. Congress formally repealed the law in 1970, but simultaneously passed the Controlled Substances Act (CSA) to keep marijuana illegal.

The CSA groups the substances it regulates into five “schedules” based on the potential for abuse & addiction, and whether it has an accepted medical use. They range from Schedule V substances — which have accepted medical uses, low potential for abuse, and may cause mild addiction — to Schedule I substances which are considered to have high potential for abuse, no accepted medical use, and a potential for addiction that the drug can’t be used safely even under medical supervision.

Controversially, marijuana and its cannabinoids has been classified as a Schedule I substance since the enactment of the CSA, which has put efforts to broaden the use of medical marijuana and legality of recreational marijuana at odds with federal law. Pure tetrahydrocannabinol (THC), the main psychoactive compound in marijuana, is listed as a Schedule III under its pharmacological name, Marinol, which allows for medical use of marijuana’s derivatives.


WHICH STATES HAVE LEGALIZED MARIJUANA?

With federal efforts to reform marijuana laws largely stymied, states have sought to gradually ease regulations on marijuana since the 1970s in three primary ways: decriminalization of recreational marijuana, legalization of medical marijuana, and legalization of recreational marijuana. The efforts have largely revolved around the use of state ballot measures, although more recently state legislatures have begun to enact marijuana reforms.

Oregon was the first state to decriminalize recreational marijuana in 1973 and was followed by 10 states throughout the course of the decade, but decriminalization efforts in other states weren’t successful again until 2001. California became the first state to allow for the medical use of marijuana in 1996 and several states followed suit before the turn of the century.

As of 2020:

  • Recreational marijuana is legal for use by adults in 11 states plus the District of Columbia, including: Washington & Colorado (2012); Alaska & Oregon (2014); California, Nevada, Maine, and Massachusetts (2016); Vermont & Michigan (2018); and Illinois (2019).
  • Medical marijuana and cannabis is available in 33 states plus the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. According to the National Conference of State Legislatures, 13 of these states allow use of “low THC, high cannabidiol (CBD)” products for medical purposes, which is slightly different from traditional medical marijuana.
  • Small amounts of marijuana have been decriminalized in 26 states plus the District of Columbia, which typically means that possession of amounts for personal consumption is punished by a civil penalty such as a fine, or is the lowest classification of misdemeanor.


WHAT’S THE STATUS OF MARIJUANA LEGALIZATION FEDERALLY?

Marijuana reform and cannabis reform more broadly have been slow moving at the federal level. There was a small breakthrough in 2018, when Senate Majority Leader Mitch McConnell (R-KY) successfully lobbied for the inclusion of a provision allowing states to regulate industrial hemp production in the Farm Bill that President Donald Trump signed into law.

Since then, Trump administration has signaled a potential openness to federal marijuana reform aimed at allowing states to regulate the medical & recreational uses of the substance. Attorney General Bill Barr said in testimony before the Senate Appropriations Committee that while he prefers that marijuana remain illegal under federal law:

"I think the way to go is to permit a more federal approach so states can make their own decisions within the framework of a federal law so we're not just ignoring the enforcement of federal law."

Barr referenced that the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act would achieve this, which has been introduced in both chambers of Congress. The Senate version of the STATES Act (S. 1028) has the support of nine bipartisan cosponsors, while the House version of the STATES Act (H.R. 2093) has the support of 63 bipartisan cosponsors.

More ambitious marijuana reform bills have been introduced in Congress, such as the Marijuana Revenue and Regulation Act and the Regulate Marijuana Like Alcohol Act, but they haven’t been considered. To date, a pair of more modest marijuana reform bills have gained traction in the legislative process:

  • The House of Representatives passed the SAFE Banking Act on a bipartisan 321-103 vote in September 2019. The bill would allow marijuana-related businesses in states where their work is legal to access the banking system.
  • The House Judiciary Committee advanced the Marijuana Opportunity Reinvestment and Expungement (MORE) Act with a 24-10 vote in November 2019. The bill would decriminalize marijuana federally by removing it from the Controlled Substances Act, require resentencing & expungement of marijuana-related convictions, and assess a 5% sales tax on marijuana & marijuana products with revenue allocated to grant programs aimed at mitigating the effects of the War on Drugs.


WHAT DO SUPPORTERS SAY?

Marijuana legalization keeps users of a relatively harmless substance out of the criminal justice system and frees up those resources, generates tax revenue for state & local governments, and reduces the black market for the drug to encourage its safe use. 


WHAT DO OPPONENTS SAY?

Marijuana legalization makes it more likely that people will use a substance that there hasn’t been sufficient research about, harming their health and potentially leading to the use of more dangerous drugs.


RESOURCES


— Eric Revell

(Photo Credit: iStock.com / gradyreese)