Dazed and Confused: The Legal Status of Cannabis in the United States

The recent narrow defeat of Proposition 19, the ballot initiative to legalize cannabis in California, underscores how far cannabis advocates have come in realizing their central goal of nationwide legalization. Although the ballot measure fell, not less than 46 percent of voters in the largest American state asserted their belief that cannabis should be regulated in a manner similar to tobacco or alcohol. In light of the medical evidence available on all three substances, the ballot measure seemed eminently reasonable. Yet the wider context of the vote shows that when it comes to marijuana, American policymakers continue to suffer from acute short-term memory loss, poor depth perception, and exaggerated emotional response.

The idea that possession of a miniscule amount of plant material should be a criminal offense is purely a twentieth-century creation. Government regulations of agricultural output—including bans on the cultivation of specific crops—have been features of American law since colonial times. But such measures generally aimed at setting price floors, thereby preserving the tax base at times when a price collapse seemed imminent. They were part of a larger hands-on agricultural policy, comprising bounties, subsidies, and tariffs. Mere possession of infinitesimal amounts of plant material never got authorities excited in the past, nor would government agents peer over an individual’s garden wall unless the quantities being produced were sufficient (at least in theory) to affect the supply-and-demand contours of the wider marketplace.

Any free-market capitalist ought to recognize instantly that agricultural production controls enacted to set a price floor, and those enacted for the purpose of prohibition, differ only in degree and not kind. Assuming a constant demand, the effect on the market remains the same: prices are supported when the supply is artificially restricted. This iron law of the market goes a long way toward explaining why California’s marijuana planters stood man-and-boy against Proposition 19—the days of the sixty-dollar eighth suddenly seemed numbered.

Where is the federal government in all of this? Typically, agricultural regulation schemes come under the ambit of federal law. A state-by-state patchwork would frustrate the goal of any regulation. But that is exactly what we have now. Some states maintain puritanical, Nancy Reagan-esque prohibitions; others decriminalized simple possession of cannabis after publication of the report of President Nixon’s 1972 blue-ribbon commission on “marihuana.” Still others decided to read the aforementioned 1972 report as a recommendation that terminally ill patients should escape prosecution when using the drug to alleviate painful symptoms or side effects. The last of these policy permutations became the ancestor of modern “medical marijuana” laws.

To date, the 1972 report remains the only official United States government study of the effects of cannabis on the user. The report brushed aside hysterical concerns about psychosis and addiction, and noted that cannabis can actually be beneficial in treating certain medical conditions. Yet federal law permits neither simple possession nor a medical exception. Or does it? In March 2010, the District of Columbia enacted a medical marijuana law, after the Obama administration announced that the Justice Department would not seek to preempt state laws permitting possession of cannabis for medical use, and Congress very quietly repealed a specific prohibition law for the District. But the District of Columbia is not a state—it is a semiautonomous federal district. Therefore, federal law now reads as follows: marijuana is strictly illegal, unless being used in the nation’s capital by someone who manages to wangle a prescription from some bush doctor on 14th Street, or in one of the many states where we have likewise decided to look the other way.

Anyone can see that legalization is around the corner. Decriminalization, while a laudable attempt to limit the catalog of criminal offenses to those that actually matter, fails to offer a viable mechanism for the regulation (i.e., taxation) of what has grown into a multi-billion-dollar industry. In marijuana-producing U.S. states like California, or similarly, across the border in British Columbia, marijuana dwarfs all other crops in terms of the yearly dollar value of production.

Medical marijuana laws, conceived in compassion for the terminally ill, have today been perverted to the point where “dispensaries” are little more than head shops, where “doctors” sporting Bob Marley t-shirts wait behind the counter to write “prescriptions” for walk-in “patients” whose ailments run the gamut from cancer to garden-variety world-weariness and boredom. The only legitimate solution to this legal quagmire is for the federal government to preempt all state laws and offer qualified growers federal licenses to sell cannabis to persons 21 and over.

It is too late to look the other way; the federal government missed that opportunity by enacting prohibition in the first place in 1938. Naturally, a black market developed, as demand cannot be controlled by law—only supply. Several decades on, prohibition has created a vested interest by supporting prices and setting up a regulatory scheme that drug dealers have come to rely on in their racketeering business models. Some say that by legalizing cannabis, we might encourage such other naughty plants as the opium poppy and the coca leaf to step up and claim their places in the above-board market. Were that to happen, the drug cartels of the world—those favorite bogeymen of prohibitionists—would disappear overnight. At what price? No one can say. The dangers of cocaine and heroin are more or less beyond dispute. However a consensus is building that cannabis is no more harmful than tobacco, and less harmful than alcohol. As it stands, roughly one-third of hospital admissions in the United States are alcohol-related.

One thing is for sure. In a country that calls itself free, the presumption ought to be that a given activity is tolerated by the authorities. Obviously that presumption may be overcome when the government can show convincingly that good reasons exist for declaring something illegal. In the case of cannabis, the U.S. government has had decades upon decades to marshal intellectually respectable evidence in support of prohibition. If that evidence did in fact exist, one suspects that the government would have unearthed it by now.