The spread of marijuana legalization, explained

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EDITED BY German Lopez

2018-08-20 12:06:00 -0400

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Marijuana has been legalized in nine states and Washington, DC

In 2012, Colorado and Washington state became the first states to vote to legalize marijuana for recreational purposes. Since then, seven more states and Washington, DC, have followed — although Vermont and DC, while allowing marijuana possession and growing, have continued to bar sales for recreational purposes.

The spread of marijuana legalization has led to a reimagining of US drug policy and how, exactly, it should change as people seek alternatives to punitive criminal justice policies that have led to more incarceration and a black market that supports violent criminal enterprises.

But marijuana remains illegal under federal law. And although the Obama administration said it would allow state-level rules to stand without much federal interference, the Trump administration has taken a tougher line.

With the exception of Vermont, the states that have legalized marijuana for recreational purposes so far have landed on a commercialization model, where for-profit, private businesses sell the drug. State officials also enforce some limits on sales, including an age requirement (21 and older), how much a person can buy and possess at once, the packaging of the product, and taxes.

But drug policy experts point out that commercialization isn't the only way to legalize the drug. In a January 2015 report for the Vermont legislature, some of the nation's top drug policy experts outlined several alternatives, including allowing possession and growing but not sales (like DC at the time), allowing distribution only within small private clubs, or having the state government operate the supply chain and sell pot.

The report particularly favors a state-run monopoly for marijuana production and sales to help eliminate the black market and produce the best public health outcomes, since regulators could directly control prices and who buys pot. Previous research found that states that maintained a government-operated monopoly for alcohol kept prices higher, reduced youth access, and reduced overall levels of use — all benefits to public health.

The different alternatives show that even for people who support legalization, there are some choices to be made. It isn't just about choosing between legalization and prohibition; it's also about choosing which form of legalization would produce the most benefits — by reducing incarceration and weakening the violent black market for pot — and minimize the negative outcomes of potentially increased drug use.
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Marijuana legalization is a response to the failures of the war on drugs

The debate over marijuana legalization is just one of the many ways the political landscape is changing as the US comes to terms with drug and criminal justice policies that many experts and Americans consider to have failed at a great cost to the nation's liberty and finances.

The war on marijuana in particular has cost the US billions of dollars over decades, led to a black market for pot that criminal organizations use to fund violent operations, and contributed to the explosive growth of America's incarcerated population, which is now the largest in the world. And despite those costs, millions of people still use marijuana — a drug that most Americans view as relatively safe.

Supporters and opponents of legalization alike acknowledge these failures, but both sides disagree on whether legalization goes too far.

Supporters, such as the Marijuana Policy Project and the Drug Policy Alliance, say that legalization is the only way to cut off a major source of revenue from criminal organizations and totally end the arrests of nonviolent marijuana users and sellers. But there's disagreement among some supporters, such as New York University drug policy expert Mark Kleiman, about how to legalize pot, and whether for-profit companies should be allowed to sell and aggressively market the drug.

Opponents, such as Smart Approaches to Marijuana, worry about the consequences of legalization — whether legally allowing pot could make it more accessible and therefore easier to misuse, especially if for-profit enterprises are able to advertise the drug similar to how alcohol companies promote their products during major public events like the Super Bowl. Some critics of full legalization instead favor smaller steps toward reform, like allowing pot only for medical uses or decriminalization, which would remove criminal penalties for possession but keep distribution and sales illegal.

The legalization debate, then, isn't about whether reform should happen at all, but if a certain kind of change goes too far. This is typical of drug policy: It's not about which option is perfect, but about which option is the least bad. In the case of marijuana, both sides are weighing whether the costs of prohibition — more arrests and drug-related violence — outweigh the risks of increased access to marijuana, given its potential harms to society and personal health.

But the choice is potentially one of huge magnitude: If legalization supporters triumph, it would amount to the greatest strike against a drug policy regime that has dominated the US for decades. After decades of dealing with the war on drugs and its failures, Americans appear increasingly willing to try something else.
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A majority of Americans now support legal marijuana

In recent years, support for marijuana legalization reached a tipping point, and a majority of Americans now favor legalization.

According to surveys from Gallup, support for legalization rose from 12 percent in 1969 to 31 percent in 2000 to 64 percent in 2017. A Civic Science poll and the General Social Survey found similar levels of support in recent years.

The Pew Research Center found that support varies from generation to generation, although it has been rising among all age groups over the past few years. As it stands, more than two-thirds of millennials back legalizing marijuana, while support is lower among older groups.

The change in public opinion is part of a broader pushback against punitive criminal justice policies and the war on drugs in general. A 2014 Pew survey found 63 percent of Americans agree that states should move away from harsh mandatory minimum sentences for nonviolent drug crimes, and 67 percent said drug policy should focus more on providing treatment over prosecuting drug users.

The wider shift on all punitive drug policies demonstrates that it's not just that more Americans want the freedom to use marijuana — a substance that more than six in 10, according to Pew, acknowledge is safer for a person's health and society than alcohol. Instead, Americans are broadly fed up with drug and criminal justice policies that have contributed to higher incarceration rates while doing little to solve ongoing drug crises.
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13 states have decriminalized — but not legalized — marijuana

Thirteen states have moved toward decriminalizing marijuana but not legalizing it — so possession of small amounts of pot no longer carries criminal penalties like prison time, but possession of larger amounts and trafficking, including sales for recreational purposes, remain criminally illegal.

Decriminalization laws vary from state to state. Some states attach fines to small amounts of marijuana, while others attach brief jail time. And whether a small amount of pot means 10 or 100 grams depends on the state's laws. (In comparison, a marijuana joint weighs about half a gram.)

Supporters of decriminalization often point to Portugal as evidence of the policy's success. A 2009 Cato Institute report found that more people with drug use disorders sought treatment services because the country decriminalized all drugs and, as a result, removed the fear of arrest.

Some opponents of legalization favor decriminalization as a step to peeling back America's harsh drug and criminal justice policies. They see "tough on crime" policies as too punitive and costly, but they don't want to resort to full legalization, which they fear would make pot too accessible in the US and allow big corporations to irresponsibly sell and market the drug.

The concern for legalization advocates is that decriminalization keeps the ban on selling marijuana, which means users wouldn't have a legal source for the drug, and criminal organizations would therefore continue having a source of revenue that they can use for violent operations around the world.

Still, the debate between legalization supporters and opponents about whether decriminalization goes far enough shows that the overall drug policy debate isn't about whether America's punitive laws should change, but rather how far change should go.
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Marijuana is legal for medical purposes in 30 states

Thirty states and Washington, DC, allow marijuana for medical purposes, although their approaches can significantly differ.

Some allow medical marijuana dispensaries and home cultivation. Others only allow home cultivation. And a few allow dispensaries but not home cultivation.

There's a growing body of research supporting marijuana's use for medical purposes. Some studies and anecdotal evidence suggest marijuana can be used for various medical problems, including pain, nausea and loss of appetite, Parkinson's disease, inflammatory bowel disease, PTSD (post-traumatic stress disorder), epilepsy, and multiple sclerosis.

But a review of the evidence published in the Journal of the American Medical Association found little evidence for marijuana's ability to treat health conditions outside chronic pain and muscle stiffness from multiple sclerosis.

Several studies show legalizing medical marijuana dispensaries can lead to fewer opioid painkiller deaths, making medical marijuana one potential way to help fight the opioid epidemic. The rationale for this is simple: Studies show medical marijuana can effectively treat chronic pain, which opioids are commonly used for. But unlike opioids, medical marijuana cannot cause deadly overdoses. So medical marijuana could supplant some opioid use and save some lives.

Medical marijuana legalization also has a lot of popular support: A 2010 Pew Research Center survey found that 73 percent of American voters back medical marijuana, including 80 percent of Democrats, 76 percent of independents, and 61 percent of Republicans.

But the federal government doesn't recognize marijuana's medical potential, largely because the studies have been small so far, and there have been no large-scale clinical trials proving pot's medicinal value.

Behind that judgment, though, lies a bit of a catch-22: It's long been difficult to conduct thorough studies on the medical uses of marijuana because of the drug's prohibition and the need for approval from a federal government that hasn't been very interested in studying marijuana's potential benefits. So the federal government is demanding scientific research proving marijuana has medical value, but the federal government's restrictions make it difficult to conduct that research.

For legalization advocates, getting the federal government to acknowledge marijuana's medical value could be a significant step forward. For one, it would push the Drug Enforcement Administration to reclassify marijuana from a schedule 1 to a schedule 2 substance, which could relax some of the restrictions on the drug. That alone would amount to a huge symbolic shift: After decades of scheduling marijuana in the strictest possible category, a downgrade could be taken as an acknowledgment by the federal government that its old policies have failed.
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Marijuana is illegal under federal law even in states that legalize it

Even as several states and Washington, DC, allow marijuana, the federal government still strictly prohibits pot.

Under the scheduling system, the federal government classifies marijuana as a schedule 1 drug, meaning it's perceived to have no medical value and a high potential for abuse.

The classification puts marijuana in the same category as heroin and a more restrictive category than schedule 2 drugs like cocaine and meth.

But that doesn't mean the federal government views marijuana and heroin as equally dangerous drugs or that it considers marijuana to be more dangerous than meth or cocaine. Schedule 1 and 2 drugs are both described as having "a high potential for abuse" — a vague description that doesn't rank drugs in the two categories as equal or different.

The big distinction between schedule 1 and 2 substances, instead, is whether the federal government thinks a drug has medical value. The DEA says schedule 2 substances have some medical value and schedule 1 substances do not, so the latter receive more regulatory scrutiny even though they may not be more dangerous.

It may be helpful to think of the scheduling system as made up of two distinct groups: nonmedical and medical. The nonmedical group is the schedule 1 drugs, which are considered to have no medical value and high potential for abuse. The medical group is the schedule 2 to 5 drugs, which have some medical value and are numerically ranked based on abuse potential (from high to low).

The schedule is not something the president could change alone, but the administration, through the attorney general or secretary of health and human services, can begin a review process for the current schedule.

There have been many calls to reschedule marijuana, but they've run into a serious hurdle: To date, there have been no large-scale clinical trials on marijuana. Those kinds of studies are traditionally required to prove a drug has medical value to the federal government. But these studies are also much more difficult to conduct when a substance is strictly regulated by the federal government as a schedule 1 drug. So pot is essentially trapped in a catch-22: It likely needs a large-scale clinical trial to be rescheduled, but those trials are going to be much harder to conduct until it's reclassified.

Congress can also pass legislation to reschedule marijuana, which legalization advocates have been lobbying legislators to do for decades.

Although the scheduling system helps shape criminal penalties for illicit drug possession and sales, it's not always the final word. Penalties for marijuana are generally far more relaxed than other schedule 1 drugs — perhaps an acknowledgment that the drug isn't as much of a risk as, for example, heroin.

Despite federal prohibition, the Obama administration took a relaxed approach to marijuana, generally letting states do as they wish as long as they met certain criteria (such as not letting legal pot fall into kids' hands or cross state lines). But the Trump administration has taken a tougher line, allowing federal prosecutors to crack down on marijuana even in states where it's legal — which could let federal law enforcement shut down state-legal pot businesses.

Pot's criminal classification at the federal level has other serious ramifications for marijuana policy even in places where state law says the drug is legal. Many state-legal marijuana businesses, for instance, must function as cash-only enterprises, since many banks are nervous about dealing with businesses that are essentially breaking federal law. Businesses also can't file for several deductions and, as a result, their effective income tax rates can soar to as high as 90 percent or more.

The result is that even as several states and public opinion move in favor of marijuana legalization, the federal government often finds itself standing in the way of a reform that many voters want after seeing the longstanding struggles and failures of the war on drugs.
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Marijuana is a relatively safe drug — with some risks

There are no documented deaths from a marijuana overdose, but that doesn't mean pot is harmless.

"The main risk of cannabis is losing control of your cannabis intake," Mark Kleiman, a drug policy expert at New York University's Marron Institute, said. "That's going to have consequences in terms of the amount of time you spend not fully functional. When that's hours per day times years, that's bad."

Jon Caulkins, a drug policy expert at Carnegie Mellon University, put it another way: "At some level, we know that spending more than half of your waking hours intoxicated for years and years on end is not increasing the likelihood that you'll win a Pulitzer Prize or discover the cure for cancer."

The risk of misuse and addiction (known in medical circles as "cannabis use disorder") is compounded by the widespread perception that pot is harmless: Since many marijuana users believe what they're doing won't hurt them, they feel much more comfortable falling into a habit of constantly using the drug.

The most thorough review of the research yet, from the National Academies of Sciences, Engineering, and Medicine, found that pot poses a variety of possible downsides — including for respiratory problems if smoked, schizophrenia and psychosis, car crashes, general social achievement in life, and potentially babies in the womb.

But it doesn't seem to cause some issues that are typically linked to tobacco, particularly lung cancer and head and neck cancers. And the studies reviewed also suggest it carries several benefits, particularly for chronic pain, multiple sclerosis, and chemotherapy-induced nausea and vomiting. (There wasn't enough research to gauge if pot is truly good for some of the other ailments people say it's good for, such as epilepsy and irritable bowel syndrome.)

Critics of legalization claim that marijuana is a "gateway drug" that can lead people to try more dangerous drugs like cocaine and heroin, because there's a correlation between pot use and use of harder drugs. But researchers argue that this correlation may just indicate that people prone to all sorts of drug use only start with marijuana because it's the cheapest and most accessible of the illicit drugs. So if cocaine or heroin were cheaper and more accessible, there's a good chance people would start with those drugs first.

Overall, marijuana is a relatively safe drug — certainly less harmful than some of the drugs that are legal today, and potentially beneficial to some people's health through its medical use. But it's not harmless.

Given that marijuana's harms appear to be relatively small, though, advocates argue that, even if legalization leads to more pot use, it's worth the benefit of reducing incarceration and crippling violent drug cartels financed in part by revenue from illicit weed sales.
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The research suggests marijuana legalization could lead to more use

In marijuana policy debates, whether legalization leads to more use is a crucial point of contention. Legalization advocates argue that allowing the drug but regulating it could reduce use and make its use safer, while critics say legalization will make pot more easily accessible and, therefore, more widely used and misused.

It's too early to say whether full legalization will lead to more widespread use, but recent research has found that pot use increased in states that legalized medical marijuana.

A comprehensive study from researchers at the RAND Corporation found that laws that allow medical marijuana dispensaries correlate with increases in overall pot use and dependence for adults 21 and older but only rises in dependence among youth. The findings suggest that allowing businesses to sell marijuana leads to more access and use, particularly for adults.

Another study from Emory University researchers found that after some states legalized medical marijuana, they saw increases in overall marijuana use and, for adults 21 and over, a rise in binge drinking. The increase in binge drinking is particularly worrying because while marijuana carries few health and social risks, alcohol causes many serious public health and safety issues, such as liver damage, more fatal car crashes, and violent behaviors that can spur crime.

This latest research disputes earlier studies that found no increases in teen pot use following the legalization of medical marijuana. Drug policy experts argue these earlier studies were far less robust; they failed to control for factors like whether a state allows dispensaries, cultivation, or only possession — rendering them incapable of gauging the full effect of different pot policies.

Still, the studies by and large only show correlation, meaning it might not be medical marijuana legalization that's necessarily causing the increase in use. And it's possible — although not likely — that the effects of medical marijuana laws on use could be more pronounced than full legalization.

If legalization does lead to more pot use, the question for society and public health officials is whether that downside outweighs the benefits of legalization. More people getting intoxicated — albeit through a relatively safe drug — isn't an outcome that most supporters of legalization see as desirable, but banning pot has costs of its own, including hundreds of thousands of racially skewed arrests and the creation of a black market that helps finance violent drug cartels around the world.
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The case for marijuana legalization

Supporters of legalization say prohibition has failed to significantly reduce access to and use of marijuana, while wasting billions of dollars and resulting in hundreds of thousands of racially skewed arrests each year. Legalization, by comparison, would allow people to use a relatively safe substance without the threat of arrest, and let all levels of government raise new revenues from pot sales and redirect resources to bigger needs.

A 2013 report by the American Civil Liberties Union found that there are several hundred thousand arrests for marijuana possession each year. These arrests are hugely skewed by race: Black and white Americans use marijuana at similar rates, but black people were 3.7 times more likely to be arrested than white Americans for marijuana possession in 2010.

The arrests not only cost law enforcement time and money, they also damage the government's credibility. Former Washington, DC, Police Chief Cathy Lanier explained in early 2015, "All those arrests do is make people hate us. … Marijuana smokers are not going to attack and kill a cop. They just want to get a bag of chips and relax. Alcohol is a much bigger problem."

At the same time, prohibition has failed to notably reduce marijuana use. The war on drugs originally intended to take down the supply of illegal drugs, increase prices as a result, and make drugs unaffordable to users. Those goals by and large failed: The White House's Office of National Drug Control Policy found that marijuana prices dropped and stabilized after the early 1990s, and several surveys show marijuana use rose and stabilized among youth in the same time period.

Meanwhile, drug prohibition has created a lucrative black market for drug cartels and other criminal enterprises. Previous studies from the Mexican Institute of Competitiveness and the RAND Corporation suggested that marijuana at one point made up roughly 20 to 30 percent of drug cartels' revenue. Through legalization, drug cartels lose much of that revenue, as sales transition to a legal market, crippling resources these criminal groups use to carry out violent operations around the world.

Legalization would also allow the federal government to tax sales to fund new programs, including treatment for people with drug use disorders. A 2010 paper from the libertarian Cato Institute found legalizing marijuana would net all levels of the government $17.4 billion annually — half of that would come from reduced spending (particularly for drug enforcement), and the rest would come from taxing marijuana like alcohol and tobacco.

More broadly, the legalization movement falls into a broader shift against the harsh criminal justice policies that came out of the war on drugs. As Americans look for alternatives to punitive prison sentences that turned the US into the world's leader in incarceration, legalizing a relatively safe drug seems like low-hanging fruit.
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The case against marijuana legalization

Opponents of legalization worry that fully allowing recreational marijuana use would make pot far too accessible and, as a result, expand its use and misuse.

The major concern is that letting for-profit businesses market and sell marijuana may lead them to market aggressively to heavy pot users, who may have a drug problem. This is similar to what's happened in the alcohol and tobacco industries, where companies make much of their profits from users with serious addiction issues. Among alcohol users, for instance, the top 10 percent of users consume, on average, more than 10 drinks each day.

Marijuana users exhibit similar patterns. In Colorado, one study of the state's legal pot market, conducted by the Marijuana Policy Group for the state's Department of Revenue, found the top 29.9 percent heaviest pot users in Colorado made up 87.1 percent of demand for the drug. For the marijuana industry, that makes the heaviest users the most lucrative customers.

Kevin Sabet, head of Smart Approaches to Marijuana, the nation's leading anti-legalization group, explained: "If we were a country with a history of being able to promote moderation in our consumer use of products, or promote responsible corporate advertising or no advertising, or if we had a history of being able to take taxes gained from a vice and redirect them into some positive areas, I might be less concerned about what I see happening in this country. But I think we have a horrible history of dealing with these kinds of things."

Drug policy experts say there are alternatives to commercial legalization, like putting state governments in charge of marijuana production and sales, which could tame the for-profit incentive and give states more direct control over prices and who buys pot.

But legalization opponents worry that any move toward legalization will inevitably attract powerful for-profit forces, especially since the marijuana industry has already taken off in several states. "The reality is there are myriad other forces at work here," Sabet said. "Chief among them are the very powerful forces of greed and profit. When I look at how things are set up in states like Colorado, where the marijuana industry gets a seat at the table for every state decision on marijuana policy, it troubles me."

Given these concerns, opponents favor more limited reforms than legalization. Sabet, for example, said nonviolent marijuana users shouldn't be incarcerated for the drug. Other critics of legalization support legalizing marijuana for medical purposes but not recreational use.

It's rare that opponents of legalization argue for the full continuation of the current war on pot. SAM and its members, for instance, broadly agree that the current drug and criminal justice policies are far too punitive and costly, helping contribute to the mass incarceration of Americans. So while they may support some reforms, they feel that legalization simply goes too far — and could lead to worse consequences than the alternatives.
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Uruguay is the first country to fully legalize marijuana

Outside of the US, Uruguay became the first country in the world to fully legalize marijuana in 2013. After Uruguay, Canada legalized marijuana in 2018.

Other countries haven't legalized, but they maintain relaxed approaches to marijuana use and sales. The Netherlands allows citizens to keep and cultivate some marijuana, and police let coffee shops sell marijuana as long as they don't sell to minors, among other specific requirements. Spain also permits marijuana clubs where people can use the drug, although the drug is officially illegal to sell. And according to multiple reports from experts, visitors, and defectors, North Korea either has no law restricting marijuana or the law goes effectively unenforced.

One of the reasons marijuana legalization is so rare is because countries have been bound for decades by international treaties that established prohibition across the world. If a country tried to relax its marijuana laws, it could be seen as acting in violation of the treaties, which could lead to a loss in international standing and credibility.

But as more countries and their citizens view the war on drugs and marijuana prohibition in particular as failed policies, many are considering reform. In that sense, Uruguay — and soon Canada — could be the beginning of a much broader global movement.