The status of cannabis legalization in the US is in a state of constant flux and rapid acceleration. One the one hand, you have states moving forward with various levels of legalization, and on the other you have clear federal prohibition laws and a government that hasn’t decided how to handle the new state laws and companies operating under them. It’s definitely a mixed message, especially with different agencies within the federal government taking a different approach to enforcement.
This post has two areas of discussion:
- The “big picture” of the legalization trend in the United States, and what is driving this trend.
- The details of the “nuts and bolts” of legalization in the United States today, and how current legalization is a bit “messy in the kitchen.”
If we look at the big picture and the trend over several decades, we see that the percentage of Americans in favour of legalization has changed gradually during the past several decades up until a few years ago. In the last 18 to 24 months, however, the number has started to shoot up like a hockey stick. By late 2013, legalization gained a full 10 percentage points over 12 months to reach 58% in favour of legalization! (And only 39% opposed):
If you look at the graph above, you can see that we are at the “knee of the exponential”, and the gains in the percentage of Americans in favour of legalization will only continue—and at a very rapid pace. I predict that by early 2015 over two thirds of Americans will be in favour of legalization. At that point it simply becomes politically untenable for any government leader to oppose responsible legalization.
The curtain is definitely falling on prohibition, but since not everyone thinks in terms of exponential trends and their tell-tale signs, some people will continue fighting the inevitable. So next, let’s talk about some of the “messy kitchen” details that I alluded to earlier.
The Messy Details: Each State Rolls their Own
As of early 2014, medical marijuana legislation is either in place or set to take effect in 20 states and the District of Columbia. Because these laws were passed on a state-by-state basis, there exists a patchwork of state policies governing medical marijuana. While Alaska only allows for the possession of one ounce and six plants, with no legal protection from arrest, Oregon permits patients to possess up to 24 ounces and 15 plants, with state registration protecting qualified patients from prosecution. Though most states which have decriminalized medical marijuana have also provided legal protections for its users, the majority of these laws have not established mechanisms for dispensing the drug or for regulating its quality and safety.
The very definitions of what qualifies patients for medical marijuana can vary greatly, with New Mexico, for instance, only permitting its use for a limited set of conditions (cancer, glaucoma, HIV/AIDS, epilepsy, multiple sclerosis, spinal cord damage, and terminal illness). California, in contrast has an expansive list that encompasses general ailments such as migraines, severe or chronic pain, and of course “any other illness for which marijuana provides relief.”
In 2009, shortly after President Barack Obama took office, the Department of Justice issued a memorandum to its 93 U.S. Attorneys informing them that prosecuting individuals who use medical marijuana in compliance with state laws should not be a priority. However, federal law enforcement agencies have continued to conduct raids on marijuana dispensaries, demonstrating a continuing commitment to enforcing the federal Controlled Substance Act. For instance, in October of 2011, the four U.S. Attorneys of California issued warnings to the landlords of dozens of marijuana dispensaries throughout the state accusing their tenants of using the Compassionate Use law as a front for large-scale drug sales. Such enforcement initiatives demonstrate the tenuous balance that still exists between federal and state laws on medical marijuana. In addition, marijuana dispensaries continue to face problems obtaining banking accounts and publicly traded marijuana companies face intense SEC scrutiny up to and including trading halts. These facts make it evident that while the current administration says it doesn’t want to interfere in state issues, the various agencies within the federal government remain active and aggressive in enforcing federal prohibition.
Why is this a problem? Several reasons come to mind:
- Under current federal prohibition, most companies cannot afford the risk of staging research and clinical trials using cannabis.
- Without federal approval and guidance, the industry cannot develop standards and quality controls.
- Individuals, and growers and dispensaries, live in a constant state of fear—is this the day I get fined or arrested even though I’m complying with local laws?
Currently Washington State and Colorado have legalized recreational possession and use of cannabis by individuals meeting each of the state’s criteria, with more states having similar initiatives in legislation. Unless the federal government takes steps to reschedule marijuana, or the states which have decriminalized the drug move to reverse such policies, the legality of marijuana will likely remain hard to define.
Long Term Trend
Now, back to the long-term trend. We have a pretty good idea of where we are eventually going to end up regarding the legalization of cannabis which is something approaching parity with alcohol (the legalization of which itself has been evolving over time).
But to get from where we are today, to parity with alcohol, it is going to be a bit of a bumpy road. And what we just talked about (details about the different states, the current situation, etc.) are examples of those bumps.
And we can certainly expect to see a lot more bumps, which should get smoother over time, particularly as the industry and the legalization movement modernize, and as we organize ourselves better around commonly agreed-upon standards, common values & ethics, best practices, and certifications.
And at some point along the way, I predict that you will see decisive federal action which finally, after many decades, acknowledges that the prohibition of cannabis has been a failure.
And the form of that federal action could be granting the States the right to determine their own path and their own destiny as regards legalization of cannabis. That is the most likely outcome, and that effort in Congress is being spearheaded by Republican representative Dana Rohrabacher from California.
Another path the federal government could take, (and this is not mutually exclusive with what I just mentioned about States’ rights), is that the federal government could reclassify cannabis to risk category below Schedule 1.
But regardless of which path the federal government takes, I believe that decisive federal action will happen in about a year +/- six months in favour of legalization, and that will open up the floodgates for legalization initiatives to spread rapidly throughout the States.