Ending Cannabis Prohibition in America

The now 40-year-old organized effort to reform cannabis laws in America is on the cusp of major socio-political change. Approximately fifty percent of the population no longer supports the nation’s 74-year-old cannabis Prohibition. Reformers have made tremendous gains, notably at the state level, which have placed us at this crossroads, yet obstacles to full cannabis legalization are abundant and deep-seated in Congress and the federal government.

In this essay, I will seek to identify important areas of concern for cannabis law reform. I will highlight the factors that have created a positive environment for reform, while identifying the last and largely self-interested factions in society who fervently defend and/or prosper from cannabis Prohibition’s status quo. I’ll also consider some of the strategic decisions that reformers can implement that will hasten an end to alcohol Prohibition’s illegitimate, long-suffering cousin.

Important Areas Of Concern For Cannabis Law Reformers

There are several areas of concern for reformers, notably the federal vs. state disconnect; citizens’ illogical fear of cannabis more than alcohol; and the political box canyon potentially created by medical cannabis.

Federal vs. State Government Disconnect

On a recent video essay broadcast October 20, CNBC host and former senate staffer Lawrence O’Donnell lamented that “only in the U.S. Senate can there be zero discussion about a policy change fifty percent of the country supports.” In a nutshell, despite 14 states having decriminalized cannabis possession, and 16 states and the District of Columbia “medicalizing” cannabis, the U.S. Congress and the executive branch (along with a federal judiciary that is totally deferential to Congress’ intent and will regarding anti-cannabis laws) are almost completely disconnected from what the governed want in this area.

The numbers that frame this political quandary: 75% of the public support medical access to cannabis; 73% support decriminalizing cannabis possession for adults; and now 50% of the population support outright legalization (California, where one out of eight U.S. citizens live, nearly passed a legalization voter initiative last fall, only losing by three percentage points). So it can be asserted with confidence that “soft” cannabis law reforms of medical access and decriminalization enjoy overwhelming public support and that the “hard” reform of legalization has now moved into the plurality, if not the majority (The recent Gallup poll showed only 46% of citizens continue to support cannabis Prohibition).

However, even with clear polling data to help guide them away from restrictive policies no longer supported by the public, the Obama administration hasn’t responded. In a series of five attempts introduce “digital democracy” into policymaking decisions, it created a public website where citizens and organizations can post online petitions. There, the president was once again confronted by the public’s number one question: Why do we have cannabis Prohibition in 2011? Shouldn’t it be ended as an ineffective public policy?

Unfortunately, like the previous four opportunities for it to confront public opinion about cannabis Prohibition, despite the NORML petition being number one with 72,000 signatures, the Obama administration once again totally rejected any public calls for cannabis law reforms and re-asserted the federal government’s primacy over the states in enforcing national cannabis Prohibition laws (see discussion below).

Cannabis’ Fear Factor

Recent polls and focus group data gathered by cannabis law reform advocates after last year’s near-victory on California’s Prop. 19 (the initiative that would have legalized cannabis) revealed an important and troubling public perception that reformers need to overcome to be successful: Almost 50% of the general public in California—where the issue of reforming cannabis laws has been vetted like no other place on earth since the late 1960s—illogically fears cannabis more than alcohol products.

Forgive the pun, but reformers have to do a better job “normalizing” cannabis use so that its responsible use causes no greater concern in the public’s eye than the responsible use of alcohol. Otherwise, it is hard to imagine cannabis becoming legal anytime soon. That just won’t happen if fifty percent of the public fears the product and the consumers who enjoy it.

The Political Limitations of Medical Cannabis

While NORML is sui generis on medical cannabis in the United States (first suing the Drug Enforcement Administration to reschedule cannabis as a medicine in 1972, NORML vs. DEA), the organization recognizes that absent substantive changes in the federal government’s Controlled Substances Act (and controlling international treaties envisaged and championed by the United States at the United Nations), qualified medical patients accessing lawful cannabis with a physician’s recommendation in states that authorize it will pose an untenable conflict with the existing federal laws that do not, under any circumstance, allow for the therapeutic possession, use, or manufacture of cannabis.

This state and federal conflict regarding cannabis Prohibition came into full view this year despite previous attempts otherwise by the Obama administration to modify the federal government’s historic recalcitrance in allowing states greater autonomy to create cannabis controls, and in some cases such as Colorado, to establish tax and regulatory bureaucracies specifically for medical cannabis.

Federal actions against medical cannabis in 2011 include the following:

  • U.S. Attorneys in California deny the city of Oakland the ability to set up a city-sanctioned arrangement with medical cannabis industry to cultivate and sell medical cannabis;

  • The Internal Revenue Service (IRS) ruled that medical cannabis dispensaries are not legitimate businesses under federal law and therefore can’t take standard business tax deductions;
  • The Bureau of Alcohol, Tobacco and Firearms (BATF) sent a memo to all gun dealers in the United States warning them not to make any sales of guns or ammunition to medical cannabis patients, even those who possess a state-issued “medical cannabis patient” card. In effect, this federal action has stripped medical cannabis patients of their Second Amendment rights;
  • Federal banking regulators regularly harass and threaten local and state banks not to do business with commercial medical cannabis businesses, even if the businesses have state and city-issued licenses to sell medical cannabis;
  • U.S. Attorneys in California and the DEA sent warning letters to otherwise state-compliant medical cannabis businesses that are properly zoned under local laws to shut down or move away from federally funded schools, day care, or recreation centers within 1,000 feet of the dispensary;
  • These same U.S. Attorneys are now threatening to legally pursue newspapers and magazines that advertise what are otherwise legal, state and city-authorized businesses and their lawful commerce.

Also, under numerous state Supreme Court decisions, lawful medical patients can be denied employment, along with driving privileges, child custody, Section 8 housing, and university residences. They can even be denied a life-saving organ transplant.

With so many onerous institutional discriminations and restrictions—and the price of medical cannabis remaining inordinately high because of the existence of cannabis Prohibition—patients who genuinely need access to this low toxicity, naturally occurring herbal medicine would be far better served by ending cannabis Prohibition entirely than in trying to carve out special legal exemptions to the existing Prohibition.

Why Cannabis Reform Is More Popular Now Than Ever Before

The rapid increase in public support for cannabis law reform is made possible by five factors:

  1. Baby Boomers are now largely in control of most of the country’s major institutions (media, government, entertainment, education and business) and they have a decidedly different perception and/or relationship with cannabis than the World War II generation (AKA, the Reefer Madness generation), who largely abstained from consuming cannabis.
  2. These crushing recessionary times have forced many elected policymakers to drop their support for rigorous enforcement of cannabis Prohibition laws. Numerous states and municipalities have adopted half measures towards legalization, notably decriminalizing possession or adopting a lowest law enforcement priority strategy.
  3. Medical cannabis first becoming legal in 1996 by popular vote in California. After the nation’s largest and most politically important state adopted medical marijuana guidelines, sixteen states and the District of Columbia have followed suit setting up a terrific state vs. federal government conflict that has already visited the U.S. Supreme Court twice (2002 and again in 2005).
  4. The advent of the Internet in the mid 1990s allowed citizens to communicate directly with each other at very low costs, create large social networks of like-minded community members, avoid the mainstream media (which readily serves as a lapdog, rather than government watchdog, in the war on some drugs) and educate themselves with verifiable and credible information about cannabis (rejecting government anti-cannabis propaganda programs like the DARE program in the public schools and the Partnership for Drug-Free America’s ineffective ad campaigns in the mainstream media).
  5. Americans are apparently (and finally!) becoming increasingly cannabis Prohibition weary after seventy-four years. In comparison, America’s great failed ‘social experiment’ of alcohol Prohibition lasted about a dozen years.

Who Actually Wants Cannabis Prohibition To Continue?

One of the principal lessons in the Art of War is to ‘know thy enemy.’ Therefore, it behooves cannabis law reformers to understand what small, but powerful factions in American society actively work to maintain the status quo of Cannabis Prohibition:

  1. Law enforcement – There is no greater strident voice against ending Cannabis Prohibition than from the law enforcement community—from local sheriffs’ departments, to the Fraternal Order of Police, to state police departments, to federal law enforcement agencies.
  2. Federal and state bureaucracies born from cannabis Prohibition itself – Washington, D.C. and most state capitals have created dozens of anti-cannabis government agencies to both maintain and enforce existing cannabis Prohibition laws. Examples: Drug Enforcement Administration, Office of National Drug Control Policy (a.k.a., drug czar’s office), DARE, Partnership for a Drug-Free America, National Institute on Drug Abuse, Substance Abuse Mental Health Services Administration, National Drug Control Information Center, et cetera.

    Many of these bureaucracies in turn provide most of the funding to so-called “community anti-drug organizations” to create the false appearance of local grassroots opposition to any cannabis law reforms.

  3. Alcohol, tobacco, and pharmaceutical companies

    Historically, alcohol, tobacco, and pharmaceuticals companies play both ends against the middle when opposing cannabis law reforms for the simple reason that all of these industries will lose a portion of their market share to legal cannabis.
  4. Private corporations that prosper from cannabis Prohibition – Numerous private companies donate significant funding annually to anti-cannabis politicians and organizations to maintain the status quo. Examples of such are private prisons, drug testing companies, rehabilitation services, communication companies, contraband detection devices, interdiction services, and high-tech companies.

Reformers Can Hasten the End of Cannabis Prohibition

Here are some suggestions for how to do it:

  • Cannabis law reformers need to better politically organize via the Internet, resolve to no longer vote for pro-Prohibition candidates, and to fund and champion pro-reform candidates.
  • Bipartisan support to end cannabis Prohibition is a political given. However, since the 1990s every single major cannabis law reform initiative that has been successful has been funded by one of two liberal, politically divisive billionaires—George Soros and Peter Lewis. Reformers need to achieve greater political and funding diversity to significantly advance cannabis law reforms in today’s highly divided national political scene.
  • Recognize that most all of the major policy reforms are first achieved at the local and state level, in time putting due political pressure on the federal government to follow suit.
  • Cannabis law reformers need to better work in concert with other like-minded political and social organizations that also oppose failed government programs or seek redress for grievances against the government.
  • Reformers need to create a far simpler reform narrative that juxtaposes “pot tolerant” citizens against “intolerant” citizens in the same manner that alcohol Prohibition pit “wets” against “drys.”
  • Reformers need to continue demonstrating the tremendous cost to taxpayers of maintaining cannabis Prohibition, the loss of needed tax revenue, and the genuine lack of social controls that enhance public safety.
  • Reformers need to keep directing public and media attention to the serious destabilization of the country’s borders created by the tremendous illegal wealth generated by cannabis Prohibition in countries like Mexico.
  • Continuing what cannabis law reformers have been successfully achieving for forty years, which is to say winning a “hearts and minds” campaign in the population, and recognizing that elected policymakers in Washington are not going to be able to lead the country out of its long-suffering cannabis Prohibition without public advocacy that is derived from effective, politically diverse, and bottom-up grassroots stakeholdership.

Also from This Issue

Essays

  • Cannabis’ Impact on Health Justifies Its Legalization, Not Its Criminal Prohibition by Paul Armentano

    Paul Armentano begins our roundtable discussion with a review of the burgeoning literature on the safety of recreational cannabis and the unique effectiveness of cannabis for many medical purposes. Recent years have seen an outpouring of this type of research, which stands in stark contrast to the political consensus in Washington, which still favors criminalization.

  • Losing Hearts and Minds in the Drug War by Norm Stamper

    Norm Stamper argues that when people see the true face of the War on Drugs, they are justifiably outraged. The average citizen can now take videos almost anywhere and then publicize what they’ve recorded. The result? YouTube clips of military-style police raids, in which the violence meted out seems vastly disproportionate to any possible wrongdoing by the suspects. Police have an important job to do in our society. They need the public’s respect if they’re going to succeed, and the War on Drugs is getting in the way.

  • Public Opinion, Political Disconnect, and the Marijuana Market by Morgan Fox

    Morgan Fox argues that marijuana both can and should be integrated into the American economy and American civil society. He notes that while taxation and regulation of marijuana may be causes for concern among some growers and users, the “regulation” we have now is undoubtedly worse, because it means only criminals are allowed to grow the nation’s largest cash crop. With public support for legalization at 50%, he nonetheless acknowledges that politicians have been slow to adopt the issue, and federal Prohibition is still likely to last for quite some time.

The Conversation