As is often the case with momentous legal changes, the states – our “laboratories of democracy” – are leading the way towards reform of cannabis laws. Politicians are nervous people who won’t support change until it’s fairly clear that voters are in favor of it. This is especially true at the federal level, meaning that most policy innovations begin at the local and state levels. Recently, Illinois became the first state to pass a full legalization bill through the legislature, meaning retail sales and not simply decriminalizing possession and use as Vermont has done, making Illinois the 11th state to legalize adult recreational cannabis. The other nine states with legal cannabis regimes legalized through ballot initiatives. The legal changes surrounding cannabis are also inspiring criminal law reform more generally. Included in the Illinois bill, for example, is an expungement measure that could help hundreds of thousands of Illinois citizens have their criminal conviction(s) under the old laws governing cannabis removed. Many other states have passed or are in the process of passing expungement laws as well. Laws restricting asset forfeiture in the absence of a criminal conviction are also increasingly being adopted. Asset forfeiture, which is abused routinely in the drug war, especially the war on marijuana, is finally being seen for what it is: a pretense for stealing property without due process. The Supreme Court has recently acknowledged in Timbs v. Indiana that some asset forfeiture is unconstitutional. On top of all of that, a flurry of cannabis-related legislation was recently introduced in Congress by old-time reformers, like Earl Blumenauer of Oregon, whose amendment, co-sponsored by Tom McClintock of California, has finally passed out of the house after being introduced for a number of years in a row. This legislation is particularly important as it would prohibit the federal government from interfering with legal recreational cannabis operations in the states, which should appeal to anyone who claims to be a fan of federalism, and mirrors a prohibition on federal interference with state medical cannabis programs that passed in 2014, also put forth by Blumenauer. Without such dramatic progress at the state level over the past few years, it is doubtful that this bill would have even passed out of committee or that there would be so many cannabis-related measures at all levels across the nation.
If you grew up in the US in the 80s like I did, this progress seems almost magical. Back then, the official line from the halls of power and prestige was that cannabis was an evil, addictive drug. The “gateway” theory that use of cannabis, or its more common, racially-charged moniker, marijuana, will almost inevitably lead to the use of harder drugs like cocaine or heroin was widely believed. This was the D.A.R.E. era when earnest politicians and their wives along with celebrities believed that fear plus star power would make the kids straighten up and not do what humans have been doing since the beginning of our species – altering our brain chemistry with drugs. (If you’ve never seen Mr. T’s “Be Somebody or Be Somebody’s Fool,” I highly recommend it.) Hence, ridiculous analogies comparing frying eggs to frying brains, which means that drugs are akin to butter. It’s a wonder that any of us made it out of that decade with our sanity intact. Just a few decades later, though, and we are potentially on the verge of nationwide legalization. More importantly, cannabis legalization efforts are driving a national conversation about the proper uses of criminal law. Cannabis it seems is a gateway drug to meaningful criminal justice reform. Indeed, as NORML and others have argued, the drug war itself is dependent on cannabis prohibition as it would be difficult to justify spending so much money on the DEA and other federal, state and local law enforcement agencies without the 600,000 cannabis arrests each year.
Despite the fact that the gateway theory has been thoroughly debunked, you still hear it today from the lips of pundits and politicians. Though many policymakers are still living in the past, the smell of freedom is in the air. Nationwide change is not inevitable, of course. However, a complete overhaul of not only marijuana laws, but perhaps the entire criminal justice system is now possible. We’ve already seen significant movement toward addressing racial disparities in prosecution and overcriminalization more generally, which is welcome news to the hundreds of thousands of individuals needlessly caught up in the criminal justice system at all levels. Many people now agree that treating social issues as crimes is a bad idea. The criminal justice system handles such issues poorly. This is true especially of issues surrounding problematic drug use or just any drug use. People are demanding change and it’s no longer enough to say that “drugs are bad, mmmkay.”
A Brief History of Drug Use and Prohibition in the US
To hear the prohibitionists talk, you might think that drugs, including cannabis, have always been outlawed. We can’t have crazy people doing crazy things in America, right? Freaking out about drugs and and many other potentially “civilization-destroying” things, like the Waltz and the telegraph or any innovation that has any possibility of upsetting the status quo is an American pastime. And, so is passing laws against them. However, you may be surprised to learn that, for much of US history and world history, for that matter, when hysteria regarding impending chaos from the reading of novels struck, people had ready access to things to calm them down. Not only was booze on offer (at least until 1920), but cannabis, opium and other narcotics, sedatives and stimulants were as near as the local druggist or even the Sears catalog. People may have feared, um, literary innovations, but drug use was a normal part of life in these United States. And, perhaps as surprisingly, people weren’t dying in the streets. This article from the Smithsonian, which notes the lack of legal barriers to drugs in the 1800s and early 1900s tries to equivocate that period with the current opioid abuse issues in the US. The author calls drug use during that relatively-unregulated period a “crisis.” Howver, the only statistic to support that claim is one doctor’s estimate that there were 150,000 people in the US who could be classified as addicted in 1889. 150,000 addicts out of a population of nearly 63 million does not a crisis make. From 1999 through 2017, over 700,000 people died of an opioid overdose. And, even though opioid-related death remains a tiny fraction of the overall causes of death in the US, the numbers from the pre-prohibition era and now are in no way comparable. Though addiction and abuse often have horrific consequences for users and their loved ones as well as for society as a whole, issues with addiction then are incomparable with today both in terms of raw numbers and in terms of the size of the impact. Certainly, some people died of overdoses and many more ruined their lives through substance abuse, but to say there was a crisis or epidemic at that time is absurd.
The legal status of drugs began to change with the Harrison Narcotics Tax Act of 1914, which imposed a tax and therefore control on many of the common drugs in use at the time. A previous federal ban on the importation of opium for smoking aimed at Chinese immigrants was passed five years earlier, but the Harrison Act was the first broadly applicable national law aimed at drugs. Earlier restrictions were municipal ordinances aimed at particular groups and at behaviors rather than the drug itself, like the outlawing of opium dens in San Francisco in 1875 aimed also at the Chinese or smoking cannabis in El Paso aimed at Mexicans, one of the first laws restricting cannabis use in the US. The targeting of particular racial groups was no accident as this was an era when eugenic theories began to have an impact on immigration law and the white majority in America became fearful that immigrants and African-Americans, who were taking advantage of the opportunities that the US offered relative to other countries, would upset existing cultural norms and cause social chaos.
Drugs turned out to be an easy scapegoat. Well, drugs mixed with racism. Mexicans “go crazy” when they smoke marijuana or black men become “violent fiends” because of the cocaine, which presaged the early 90s rhetoric about “super predators” on PCP, not to mention the “Satanic” marijuana-inspired jazz and swing music, ran a few common refrains in the early 20th Century. The term marijuana (or marihuana as you still see in some statutes because a soft j is un-American) was emphasized because it sounded foreign and, therefore, scary to many Americans. In other words, social problems can’t simply be a function of human beings living together. There must be a cause to the ills of society. For policymakers then that cause was deemed to be minorities hopped up on goofballs. And, if you can find a cause for a social ill, surely that means a solution is not far off? William Randolph Hearst and other media moguls were only too happy to sell newspapers using lurid tales of drug-crazed non-Caucasian people threatening the very fabric of American life. Propaganda films like Reefer Madness perpetuated these stereotypes and the laws changed to reflect these fears. The Harrison Narcotics Act of 1914 meant that for the first time in US history, drugs were controlled nationwide. The Act permitted control through taxation and later, a tightly-regulated prescription system was implemented. In 1951, the Boggs Amendment made violations of the Harrison Act punishable by mandatory minimums (sound familiar?). So palpable was this terror of the stoned (and presumably violent) Other that people, especially legislators, were willing to take granddad’s cough syrup away in order to keep society safe. Of course, the US also outlawed alcohol, the most popular drug of all, around the same time. Fortunately, the horrible consequences of alcohol prohibition proved too difficult to ignore and that idea was swept into the dustbin of history, except for a surprising number of jurisdictions who still want to party like it’s 1929.
The harmful effects of alcohol and drug prohibition are exactly the same of course: violence and more potent and/or adulterated product. (Remember that time the US government poisoned to death 10,000 US citizens?) Outlawing popular substances doesn’t make people forget about them, it arguably makes them more desirable – the “forbidden fruit” effect. But it does result in the social ills mentioned above and encourages people to overindulge. If you have to sneak a drink or a toke, might as well make it three and get the most bang for your buck by buying the strongest stuff you can find. And, black market sellers increas profits by stretching their supplies with fillers and making stronger stuff. It shouldn’t be surprising that heroin is laced with Fentanyl and other potentially dangerous impurities, pushing opioid overdose numbers higher.
One of the really damaging effects of prohibition of disfavored substances is turning legal, peaceful markets over to criminal gangs. (As it turns out, gangs don’t use courts to resolve disputes, who knew?) One would think that the failure of alcohol prohibition would have prompted a rethinking of drug prohibition, but no. Instead, government at all levels doubled down on drug prohibition. First, with Harry J. Anslinger, who was like Eliot Ness but for less popular drugs and also an eventual proponent of the gateway theory, and several treaties aiming to put in place quotas and controls for drug production worldwide, pushed by the US. Fast forward to the 60s and 70s, when the UN, again at the urging of the US, attempts to consolidate the international control of drugs through the Single Convention on Narcotic Drugs, which was followed by two more conventions and a protocol because, hey, we forgot some drugs! And, Nixon’s own War on Drugs, which set up the DEA and continued the process of turning law enforcement officers charged keeping the peace into paramilitary units who believe they are actively engaged in warfare, despite the fact that we’ve exported most of our gang violence, through prohibition itself and through a program of deportation for minor crimes, to places like Mexico and farther south. US neighborhoods are on average much safer than they’ve been in decades. And, police officers are not working in the most dangerous job ever, yet many in law enforcement believe that they are under threat to the extent that they regularly and needlessly escalate peaceful situations into violent ones, killing people and often the family dog in the process. All of this was foreseeable and preventable, but being a drug warrior means you never have to say you’re sorry.
Cannabis Liberalization and Legal Reform
Fortunately, all of this is beginning to change. Now that 11 (way to go Illinois!) states and the District of Columbia have legalized adult use of cannabis for any reason and 33 states plus DC have medical marijuana regimes in place, it looks like we’re well on our way to seeing the harmful policies of drug prohibition eliminated in the US. Not to mention Uruguay, Canada, Mexico (sort of) and Colombia (sort of) which have legalized the adult use of cannabis, and Portugal, where all drugs have been decriminalized for more than a decade without resulting hordes of drugged out zombies pulling that country apart brick by brick. The Czech Republic also has a very tolerant approach to recreational drugs and reports of mass chaos from the streets of Prague are strangely absent. And The Netherlands, Jamaica, India an others where cannabis use is a well-accepted part of the culture. We’ve also seen moderation of opioid use in jurisdictions where cannabis is legally accessible as some users substitute heroin for marijuana, despite the fact that marijuana is currently classified as a Schedule 1 drug “with no currently accepted medical use and a high potential for abuse.” Jeff Sessions and others still believe that cannabis is “only slightly less awful” than heroin. Not even close.
Cannabis legalization across the US, while certainly not a foregone conclusion, is already resulting in criminal law reform in the states where it is legal recreationally or medicinally. As arrests for cannabis decline in legal states, fewer people wind up in the criminal justice system in the first place. Though a few states seem determined to keep total arrest numbers high. As mentioned, several jurisdictions are expunging the criminal records of those with non-violent drug convictions, meaning they will be able to have more access to housing, employment and education. Even at the federal level, we have seen a record number of criminal justice reform bills introduced, one of which, the First Step Act, was passed last year and has already resulted in shortened sentences for thousands and has gone further than any law so far to reduce the racist disparity between sentences for crack and powder cocaine violations. Many of these sentences were handed out under the notorious three strikes law, which imposed mandatory minimum sentences after three convictions regardless of the nature of the underlying offense. This often meant that non-violent drug offenders served longer sentences than those convicted of violent crimes. Again, states lead the way with reforms and the feds only get on board after the pioneer period. A couple of cities have pushed drug reform even further, Denver and Oakland have reduced the possession of Psilocybin, the magic ingredient in magic mushrooms, to the lowest possible enforcement priority for police and Oakland’s statute includes all plant-based psychedelics, including peyote, DMT and ibogaine, the latter always reminds me of Hunter Thompson’s treatment of Ed Muskie, but which is legal in only a handful of countries. Though AOCs recent amendment to remove restrictions on medical testing of cannabis, MDMA (Ecstasy) and Psilocybin was recently defeated, it seems like the momentum is with the reformers.
Live and Let Live? Probably Not.
So, are we headed back to the days of ordering heroin from the Sears Catalog? Well, since the catalog no longer exists and Sears is struggling mightily to stay afloat, we may have to wait a bit for convenient access to recreational substances, though I imagine that Amazon would happily fill that void as it is already trying to do with prescription drugs. We’ll likely never return to the days where drugs were part of everyday life. The stigma that treats drugs as simultaneously alluring and frightening mystery continues along with legalization. Though cannabis is being liberated, the moral busybodies and health crusaders will most likely keep the law intruding into the lives of others. I doubt we’ll see a return to the era where buying Coca-Cola, with the original eponymous ingredient included, is unremarkable. However, any progress on keeping people out of the criminal justice system is good progress indeed.
Unfortunately for people like me who don’t care what activities my neighbors peacefully engage in, the desire to control others seems to be hardwired in a large percentage of the population. In communications and mass media theory, there’s even a name for it: the “Third-Person Effect.” But, it seems to apply to other perceived social harms as well. Advocates of criminalizing drug use, video games, porn, whatever, fear that other people will fall prey to such vices. The advocates themselves would not, of course, but others are weak. Therefore, these potentially harmful temptations must be outlawed for the good of society. Protecting all the susceptible folks out there and thereby safeguard civilization itself is pretty narcissistic when you think about it. It’s a result of people who want to run others lives. We used to call folks who feared “that someone, somewhere was having a good time” Puritans. But, even the Puritans and their children drank beer for breakfast and every other meal and between meals. Now, for the umpteenth millionth time, we’re worried about the kids. Teen cannabis use has remained flat or fallen in legal states however. Despite thousands of years of people worrying about things beyond their control, “the whole darn human comedy keeps perpetuating itself down through the generations.”
Large portions of every human society have always used drugs and the problems associated with that have been vastly over-exaggerated. That’s not to say that drug use and abuse can’t have horrific consequences. We are all aware that they can. However, any individual or social issues associated with drug use and especially abuse are already here. Prohibition only makes them worse. Indeed, your neighbor might be getting high on PCP right now and there’s nothing necessarily wrong with that. Here’s to a day when the 100+ years of drug prohibition is finally over. As our ancestors did, we can then alter our brain chemistry without fear of prosecution, adulterated intoxicants or violence. Cannabis legalization at the state level is paving the way toward a freer and fairer world. A world where peaceful behavior is no longer criminalized. If that scares you, a few puffs of a “reefer cigarette” might help.