The Most Significant Gain from Cannabis Legalization: One Lawyer’s Perspective

The Most Significant Gain from Cannabis Legalization: One Lawyer’s Perspective

JURIST Guest Columnist Jody H. Lehrer, of Northeastern Institute of Cannabis , discusses the national movement towards the legalization of cannabis…

With increasing frequency states are enacting laws, either through legislators or through voter initiatives, that are chipping away at long standing prohibitionary policies against cannabis possession that still exist undisturbed at the federal level. While the most significant change is flat out legalization – as opposed to decriminalization – there is much more at stake than that a 21 year-old adult be able to choose to use marijuana, just as he or she chooses to drink alcohol. There are significant beneficial socio-economic consequences of legalization to be discussed.

In many states, simple possession of cannabis, for personal use, is no longer a crime as possession is demoted to a mere civil offense carrying a fine much like what one would face for running a red light. Decriminalization [pdf] by some states dates back to the 1970s.

Still other states have adopted laws that allow either for limited use of low THC strains of cannabis for just a few types of conditions (e.g., epilepsy) or for more expansive use of a many strains of cannabis, not just those containing low THC, for a wide array of debilitating medical conditions. Other states are going even further and adopting laws (through ballot initiatives) that reject prohibition outright, legalizing cannabis for adults through a system of regulation and taxation, similar to the one that exists relative to alcohol.

All of these laws – decriminalization, medical use, and adult use – serve jointly (no pun intended) to weaken prohibition at the state level but have left unscathed prohibition at the federal level.

Federal cannabis prohibition is often traced back to Harry Anslinger who headed the Federal Bureau of Narcotics, established in the Treasury Department, in 1930. Under Anslinger’s reign, which lasted until 1962, drugs were “increasingly criminalized.”

Many cite the seemingly relentless “War on Drugs” (in)famously waged by President Nixon who, in 1971, called drugs like marijuana “America’s public enemy number one.” Nixon spurred a massive effort to thwart entry into the United States of marijuana from Mexico through “Operation Intercept” which, while successful in curtailing Mexican-grown marijuana, is thought to have simply rerouted marijuana into the United States from Columbia.

The fact that federal prohibition against cannabis is alive and well is perhaps best highlighted by the fact that cannabis is considered a Schedule 1 substance, alongside heroin, LSD, peyote, and ecstasy, under the federal Controlled Substances Act (CSA), enforced by the federal Drug Enforcement Administration [official site]. Scheduling is based upon factors including the drug’s “acceptable medical use” and its “abuse or dependency potential.” Note that opiates are classified under Schedule 2, as substance recognized to have medical value unlike substances in Schedule 1.

States have largely eschewed federal prohibition against the use of cannabis, even for medical purpose. Instead, states have, as discussed, used numerous approaches to make inroads against prohibition (e.g., legalization). The arguments in favor of legalization are also numerous.

In 2016, voters in four states (Massachusetts, Maine, California, and Nevada) legalized marijuana use by persons 21 or older, joining Colorado, Washington, Alaska, Oregon, and the District of Columbia, which had previously legalized cannabis for adult use.

Arguments supporting legalization (and attendant regulation and taxation) have included:
•That one should be able to choose what to put in one’s body and be responsible for one’s own choices and the consequences of them (the Libertarian argument);
•That cannabis has medicinal characteristics (this is already recognized in the many states that have legalized cannabis for medical purposes, which at the time of this writing total 28, with recent) medical cannabis legalization in North Dakota, Florida, and Arkansas);
•That the illicit market can be reduced;
•That public revenues can be increased though taxation;
•That jobs will be created;
•That limited law enforcement resources can be saved and used for other purposes such as for public health and safety;
•That marijuana arrests ruin lives.

While all such arguments are compelling, one of the most significant arguments is a socio-economic one; elimination of unfair singling out by law enforcement of the poor and people of color when it comes to enforcement of laws regarding the simple possession of cannabis.

The need to address the disparate impact on minorities and the poor has been demonstrated through numerous studies on this topic. Regardless of one’s stance on legalization, inequitable enforcement of drug laws is not an acceptable trade off.

According to a study by the American Civil Liberties Union [official site], “enforcement of marijuana laws generates some of the justice system’s starkest racial disparities.” Blacks are four times more likely to be arrested for simple possession than are Whites. In some states, Blacks are up to 15 times more likely to be arrested for possession than are Whites.

In a 2015 report [pdf] issued by California’s “Blue Ribbon Commission on Marijuana Policy,” [official site] established in anticipation of legalization, the Commission states that one goal that should be met when legalizing is to meet California’s diverse populations “and address racial and economic disparities, replacing criminalization with public health and economic development.”

In another study of marijuana related arrests in Virginia, developed by the Drug Policy Alliance [official site], it was found that from 2011 to 2013 arrests for simple possession rose by almost percent 110% to nearly 22,000, with 82% of the increase representing arrests of “black Virginians” [pdf].

The report went on to say that the “enforcement of marijuana possession laws in the state, while having no
impact on overall use or availability, has had a disproportionate impact on Virginia’s black communities.”

Legalization eliminates criminal sanctions for everyone: no more targeting of minorities or the poor.

A concise statement of the fact that legalization is not just about marijuana comes from Boston City Counsel member Tito Jackson speaking in favor of Question 4, legalizing cannabis for adults age 21 and above, in Massachusetts. He said “It’s not only about marijuana, it’s about fixing injustices.”

So, the next time you weigh the advantages of cannabis legalization, stick this in your pipe and smoke it!

Jody Lehrer is an MA attorney. She has published research on how municipalities zone for medical marijuana dispensaries and under what conditions, and has served for several years as an instructor on medical marijuana law and regulations. She represents parties interested in applying with the state’s Department of Public Health to become Registered Marijuana Dispensaries.

Suggested citation: Jody Lehrer, The Most Significant Gain from Cannabis Legalization: One Lawyer’s Perspective, JURIST – Hotline, Nov. 21, 2016, http://jurist.org/hotline/2016/11/the-most-significant-gain-from-cannabis-legalization-one-lawyers-perspective.php.


This article was prepared for publication by Derek Luke, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org

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