In 1970, at the height of his white-hot war on crime, President Richard Nixon demanded that Congress pass the Controlled Substances Act to crack down on drug abuse. During the debate, Senator Thomas Dodd of Connecticut held up a package wrapped in light-green paper that he said contained $3,000 worth of marijuana. This substance, he said, caused such “dreadful hallucinations” in an Army sergeant in Vietnam that he called down a mortar strike on his own troops. A few minutes later, the Senate unanimously passed the bill.
Repealing it would allow the states to decide whether to permit marijuana use and under what conditions. Nearly three-fourths of them have already begun to do so, liberalizing their laws in defiance of the federal ban. Two have legalized recreational use outright, and if the federal government also recognized the growing public sentiment to legalize and regulate marijuana, that would almost certainly prompt more states to follow along.
The increasing absurdity of the federal government’s position is evident in the text of the Nixon-era law. “Marihuana” is listed in Schedule I of the Controlled Substances Act alongside some of the most dangerous and mind-altering drugs on earth, ranked as high as heroin, LSD and bufotenine, a highly toxic and hallucinogenic toad venom that can cause cardiac arrest. By contrast, cocaine and methamphetamine are a notch down on the government’s rankings, listed in Schedule II.
That illogical distinction shows why many states have begun to disregard the federal government’s archaic rules. Schedule II drugs, while carrying a high potential for abuse, have a legitimate medical use. (Even meth is sold in prescription form for weight loss.) But according to the language of the law, marijuana and the other Schedule I drugs have “no currently accepted medical use in treatment in the United States.”
STATES TAKE THE LEAD No medical use? That would come as news to the millions of people who have found that marijuana helped them through the pain of AIDS, or the nausea and vomiting of chemotherapy, or the seizures of epilepsy. As of this month, 34 states and the District of Columbia permit some form of marijuana consumption for medical purposes. New York is one of the latest states to defy the tired edict of the Controlled Substances Act.
It’s hard for the public to take seriously a law that says marijuana and heroin have exactly the same “high potential for abuse,” since that ignores the vastly more addictive power of narcotics, which have destroyed the lives of millions of people around the world. (There are no documented deaths from a marijuana overdose.) The 44-year refusal of Congress and eight administrations to alter marijuana’s place on Schedule I has made the law a laughingstock, one that states are openly flouting.
In addition to the medical exceptions, 17 states and the District of Columbia have decriminalized marijuana, generally meaning that possession of small amounts is treated like a traffic ticket or ignored. Two states, Colorado and Washington, have gone even further and legalized it for recreational purposes; two others, Alaska and Oregon, will decide whether to do the same later this year.
The states are taking the lead because they’re weary of locking up thousands of their own citizens for possessing a substance that has less potential for abuse and destructive behavior than alcohol. A decision about what kinds of substances to permit, and under what conditions, belongs in the purview of the states, as alcohol is handled.
Consuming marijuana is not a fundamental right that should be imposed on the states by the federal government, in the manner of abortion rights, health insurance, or the freedom to marry a partner of either sex. It’s a choice that states should be allowed to make based on their culture and their values, and it’s not surprising that the early adopters would be socially liberal states like Colorado and Washington, while others hang back to gauge the results.
PRE-EMPTED BY WASHINGTON Many states are unwilling to legalize marijuana as long as possessing or growing it remains a federal crime. Colorado, for instance, allows its largest stores to cultivate up to 10,200 cannabis plants at a time. But the federal penalty for growing more than 1,000 plants is a minimum of 10 years in prison and a fine of up to $10 million. That has created a state of confusion in which law-abiding growers in Colorado can face federal penalties.
Last August, the Justice Department issued a memo saying it would not interfere with the legalization plans of Colorado and Washington as long as they met several conditions: keeping marijuana out of the hands of minors or criminal gangs; prohibiting its transport out of the state; and enforcing prohibitions against drugged driving, violence and other illegal drugs. The government has also said banks can do business with marijuana sellers, easing a huge problem for a growing industry. But the Justice Department guidance is loose; aggressive federal prosecutors can ignore it “if state enforcement efforts are not sufficiently robust,” the memo says.
That’s a shaky foundation on which to build confidence in a state’s legalization plan. More important, it applies only to this moment in this presidential administration. President Obama’s Justice Department could change its policy at any time, and so of course could the next administration.
HOW TO END THE FEDERAL BAN Allowing states to make their own decisions on marijuana — just as they did with alcohol after the end of Prohibition in 1933 — requires unambiguous federal action. The most comprehensive plan to do so is a bill introduced last year by Representative Jared Polis, Democrat of Colorado, known as the Ending Federal Marijuana Prohibition Act. It would eliminate marijuana from the Controlled Substances Act, require a federal permit for growing and distributing it, and have it regulated (just as alcohol is now) by the Food and Drug Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives. An alternative bill, which would not be as effective, was introduced by Representative Dana Rohrabacher, Republican of California, as the Respect State Marijuana Laws Act. It would not remove marijuana from Schedule I but would eliminate enforcement of the Controlled Substances Act against anyone acting in compliance with a state marijuana law.
Congress is clearly not ready to pass either bill, but there are signs that sentiments are changing. A promising alliance is growing on the subject between liberal Democrats and libertarian Republicans. In a surprise move in May, the House voted 219 to 189 to prohibit the Drug Enforcement Administration from prosecuting people who use medical marijuana, if a state has made it legal. It was the first time the House had voted to liberalize a marijuana law; similar measures had repeatedly failed in previous years. The measure’s fate is uncertain in the Senate.
While waiting for Congress to evolve, President Obama, once a regular recreational marijuana smoker, could practice some evolution of his own. He could order the attorney general to conduct the study necessary to support removal of marijuana from Schedule I. Earlier this year, he told The New Yorker that he considered marijuana less dangerous than alcohol in its impact on individuals, and made it clear that he was troubled by the disproportionate number of arrests of African-Americans and Latinos on charges of possession. For that reason, he said, he supported the Colorado and Washington experiments.
“It’s important for it to go forward,” he said, referring to the state legalizations, “because it’s important for society not to have a situation in which a large portion of people have at one time or another broken the law and only a select few get punished.”
But a few weeks later, he told CNN that the decision on whether to change Schedule I should be left to Congress, another way of saying he doesn’t plan to do anything to end the federal ban. For too long, politicians have seen the high cost — in dollars and lives locked behind bars — of their pointless war on marijuana and chosen to do nothing. But many states have had enough, and it’s time for Washington to get out of their way.