Imagine a country where any adult could use marijuana for medicine, reflection, or just because they enjoy getting high, without fear of harassment or prosecution by police and politicians. That vision is a long way from becoming reality in America, but the country has in recent years taken enormous strides toward more rational and sensible marijuana policy, with more progress still to come.
Still an open question is whether full legalization is ever a realistic prospect, or if we are looking at a situation where we forever have a patchwork of state laws along the spectrum from legal recreational use, to progressive medical marijuana policy, to restrictive medical to full criminalization like we have now.
The latest Gallup poll showed 58 percent of Americans in support of legalization, an all-time high, with only 39 percent opposing. This is a bellwether toward shifting attitudes and public acknowledgment that weed isn’t the demon spawn Nancy Reagan would have you believe. The sky hasn’t fallen after Washington and Colorado approved recreational use last year, and more states like California and Oregon could be poised to follow. Even former prohibitionists like Sanjay Gupta are publicly admitting the benefits of the drug.
It feels like only a matter of time before the federal government loosens its hysterical grip on marijuana, with its laissez-faire attitude toward Colorado and Washington a big first step.
“If public opinion continues to shift, I’d expect legalization at the national level, perhaps a decade from now,” said Mark Kleiman, a public policy professor at the UCLA School of Public Affairs who has written several books on drug policy and served as an adviser to a number of states for their medical and recreational policies.
However, even if the federal government were to drop marijuana from Schedule I of the Controlled Substances Act, or if Congress were to eliminate federal laws against possession entirely, states could and would still keep it illegal under their own laws. There’s no real avenue for a sweeping Supreme Court ruling that could do away with anti-pot laws across the land in the manner which the court had (but declined to exercise) the option to throw out the country’s gay marriage bans in one swoop.
As a result, the patchwork, state-by-state process is the only way forward for now, providing for incremental if unsatisfactory progress. Some of the more recent states to allow medical marijuana, particularly those that passed it through the legislature as opposed to the ballot process, have been among those with the most restrictive laws as lawmakers trail behind the population in grasping the benign nature of the drug. Maryland, which enacted a medical bill earlier this year, barely qualifies as a medical use state since people can only legally get pot through hospital studies. New Jersey approved a medical bill in 2010 but only just started dispensing to patients last December, some of whom have been arrested despite the bill. Illinois, which passed a medical law this summer, strictly controls all growth and use of the plant. The state’s medical legalization law does not include chronic pain on its list of symptoms eligible for a doctor’s recommendation, blocking countless patients who could benefit.
“Legislators are easily cowed by well-financed law enforcement and drug treatment lobbying groups who trump up Reefer Madness myths about the dangers of marijuana, when in fact it has a much safer profile than many prescription drugs on the market today,” said Dan Riffle, director of federal policies for the Marijuana Policy Project. “The end result is that you wind up with a law that treats medical marijuana as a far more dangerous drug than it is.”
As if to demonstrate the disconnect between the attitude of citizens and their legislators, New Hampshire lawmakers recently shot down a legalization bill despite the fact that 60 percent of adults in the state supported it, according to a recent poll.
Twenty-nine states still don’t allow medical use at all yet, although more could be joining the club soon. A number of states that allow ballot initiatives and haven’t yet legalized such as Idaho, Wyoming, North and South Dakota, Missouri and Arkansas, which voted down medical use by a narrow margin of 51-49 percent in November, could be among the next. Some lawmakers are hoping to leapfrog the medical regime entirely and jump straight to recreational use. In Pennsylvania a state senator has introduced legalizing legislation.
“I also think, as the public and elected officials continue to get a greater understanding of the fact that marijuana is a relatively benign substance, even laws enacted through the legislative process will become less restrictive,” Riffle said. He adds, “I suspect, long after the federal government acts, there will still be Oklahomas and Utahs where marijuana is illegal and punishable by criminal penalties.”
Colorado and Washington have already changed the landscape for what seems possible.
Richard J. Bonnie, a professor at the University of Virginia Law School who is the author of the book, Marijuana Conviction: A History of Marijuana Prohibition in the United States, said the legalization in those two states changed his outlook.
“Until November, 2012, I would have unequivocally endorsed [the] patchwork option, and I still think that is the most likely situation for the foreseeable future,” he said.
“I do think that the federal government will eventually get out of the way to allow local innovation,” Bonnie continued. “But that depends on whether Congress is able to agree on anything controversial.”
There is a precedent that might provide some insight for the federal government banning a popular drug, then eventually realizing it had overstepped its bounds. When alcohol prohibition was repealed in 1933, states still had the option to prosecute sale or consumption within their borders, and it wasn’t until more than three decades later in 1966 that every state had decriminalized alcohol, with Mississippi bringing up the rear. To this day, every state has unique laws about when and where alcohol can be purchased, and there are still dry counties sprinkled around the country, particularly among Southern states.
“I expect we are starting down a path very similar to the end of alcohol prohibition, when the federal government simply gets out of the way, and allows the states to implement whatever marijuana laws they want, from continuing the criminal prohibition, to decriminalization, to full legalization,” said Keith Stroup, founder and legal counsel for NORML. “Over time (likely a decade or more) most all states will enact some form of full legalization, although some may permit individual counties to continue to ban marijuana sales.”
It’s a long game, but one where, for now, common sense is slowly but surely gaining ground.
“For the foreseeable future, I do not foresee ‘legal everywhere,’” Bonnie said, “but that depends on what horizon you have in mind. I wouldn’t try to predict anything more than 20 years out.”
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