THE COMING RAGING CONTROVERSY ON MARIJUANA LAWS
IN AMERICA
BY
SENIOR JUDGE ARTHUR L. BURNETT, SR.
NATIONAL EXECUTIVE DIRECTOR
NATIONAL AFRICAN AMERICAN DRUG POLICY COALITION, INC.
FOR
NATIONAL BAR ASSOCIATION
SEMINAR 46
“THE LEGALIZATION OF MARIJUANA:
WILL MARIJUANA SAVE YOUR STATE’S FINANCES”
ANNUAL MEETING
NEW ORLEANS, LOUISIANA
AUGUST 12, 2010
As legal issues discussed herein may come before me in my judicial capacity, I
can take no public position as to my personal views. There are a number of hard
questions I will raise for this audience. I will endeavor to present a balanced approach
of the pros and cons on these issues. No one should interpret from the statements herein
what my personal views may be on any of these issues in view of my judicial status.
Should our public policy and laws be driven with respect to marijuana by
ideology and moral philosophy or based on scientific and empirical evidence as to the
best means to promote public welfare and public safety? Prominent experts and many
serious commentators claim that marijuana usage is not as harmful as alcohol and
nicotine from smoking tobacco. In a recent NPR Radio interview, Professor Carl Bell, a
Clinical Professor of Psychiatry and Public Health at the University of Illinois in Chicago
in the context of talking about the impact of crack cocaine on a pregnant woman and her
fetus stated “the medical biologic reality is that alcohol and nicotine actually do more
harm to a developing brain [in a fetus] than all the other legal drugs combined.”
A recent article excerpt in an electronically distributed publication, Progress
Notes, dated July 1, 2010 stated: “Most marijuana users use the drug infrequently and are
not in need of intervention, according to Canadian researchers who said public-health
efforts around marijuana should be directed primarily at those at most risk of problem
use,” according to the Vancouver Sun in a report of June 11, 2010. Benedikt Fischer, a
researcher with Simon Fraser University said: “We’re arguing for a differentiated
approach that recognizes that some people, but only some, a minority, have problems
from their cannabis use and we understand now a lot better what their characteristics and
determinants are while the large proportion of users are fairly problem free.”1 University
1
It is interesting to note that an electronic newsletter publication, Progress Notes, Vol. XI, No. X, April
15, 2010 reported that marijuana use was pervasive among potential NFL draftees. The article observes
that National Football League personnel officials say that use of the drug has become so widespread that it
has almost become discounted as a measuring stick of a player’s character. The article states: “Marijuana
use is almost epidemic, with more guys having tested positive for marijuana at some point in their college
background than I can ever remember,” one personnel official told SI [Sports Illustrated] columnist Don
Banks under condition of anonymity. “It’s almost as if we are having to figure out a new way to evaluate it
as part of the character and background report, because it’s so prevalent. There’re enough instances of it
that it’s hard to know how to set your board. You can’t throw out that many guys. You have to go caseby-case and do your homework on them.”
The article further states that NFL coaches said that there are 10 or 11 potential first-round picks
in the 2010 draft who have a history of marijuana use. Some estimated that up to one-third of the draft
class has used marijuana. The article concludes with a personnel official stating: “But if you knocked
everyone off your board who has experimented with weed, you’d lose about 20 percent of your board, not
to mention disqualify a few recent presidents. A third sounds a little high to me, but it’s not a rare
occurrence to have a player with some pot use in his background. You have to make a judgment on each
individual guy.”
Another article in Progress Notes of January 1, 2010 reporting on a SAMHSA Press Release of
December 17, 2009 reported that 34.2 percent of youth ages 12-17 did not perceive any risk in smoking
marijuana once a month. This statistic was based on responses of 44,979 adolescents in the 2007 and 2008
survey conducted by SAMHSA known as the National Survey on Drug Use and Health (NSDUH). On the
2
Fischer and his colleagues based their recommendation on a study of 1,303 Canadian
marijuana users, determining that the minority who began using the drug before age 16
and continued with daily or near-daily use were at the most risk of other drug use,
impaired driving, or other problems. The study was published in the International
Journal of Methods in Psychiatric Research.
This differentiated approach suggests an argument that where an individual is a
heavy user of marijuana and that use contributed to the commission of some other
offense, public policy could justify an enhanced sentence much in the manner in which
we now deal with DUI, DWI or negligent homicide and manslaughter offenses in the
operation of a motor vehicle, but where no offense occurs and no one is harmed, the
individual should not be subject to criminal sanction.2 This problem could also occur
where the marijuana is highly potent in its THC chemicals and other substances.
That same issue of Progress Notes of July 1, 2010 featured an article noting that
Sarah Palin had said that she does not support marijuana legalization but that she did
seemed to offer some support for decriminalization of the drug. CBS News reported
June 17, 2010 that during a TV appearance with Representative Ron Paul (R. Texas) –
who supports legalization on libertarian grounds – Sarah Palin said, “If we’re talking
about pot, I’m not for the legalization of pot.
I think that would just encourage
especially our young people to think that it was OK to just go ahead and use it.”
other hand the survey indicated, that some 70 percent of youth perceived harm from smoking one or more
packets of cigarettes a day.
2
However, it is significant to note that a European study, Cannabis intoxication and fatal road crashes in
France: population based case-control study, concludes that driving under the influence of cannabis
increases the risk of being involved in a motor vehicle accident. Its involvement in fatal crashes,
nonetheless remains significantly lower than those associated with alcohol, according to an article
published in Progress Notes of February 1, 2010, taken from the DOL/Working Partners Web Site of
January 30, 2010. This article noted: “Over a two-year period, 10,748 drivers in France who were involved
in fatal accidents were tested for substances. Of the total number of drivers involved in the study, 681
(7%) tested positive for cannabis while 2096 (21.4%) were positive for alcohol. Men more than women,
those younger and those riding mopeds and motorcycles were more likely to be involved in crashes. The
study showed that the higher the blood concentration of cannabis, the more likely the risk of being involved
in a fatal crash.” The article further notes: “Marijuana intoxication can cause distorted perceptions,
impaired coordination, difficulty in thinking and problem solving, and problems with learning and
memory.”
Another article in the same issue of Progress Notes suggests that women who smoke marijuana during
pregnancy may put babies at risk. Reuters reported January 22, 2010 that researchers in the Netherlands
studied 7,000 pregnant women, including some who acknowledged smoking marijuana during pregnancy,
and found that babies delivered by marijuana users weighted less at birth and had smaller heads. The
article asserts: “The results were similar to those found in studies of cigarette smokers. Most of the
marijuana users in the study also smoked cigarettes, but researchers said that marijuana use seemed to
affect birth size even more than cigarette smoking alone.” It was further represented that the researchers
found that the longer a woman smoked marijuana during pregnancy, the more pronounced the effects were
on fetal development. The study was published in the December 2009 issue of the Journal of the
American Academy of Child and Adolescent Psychiatry.
3
However, Palin also characterized marijuana use as a “minimal problem” in society
relative to other issues. She is reported to have said: “I think we need to prioritize our
law enforcement efforts.” She continued: “And if somebody’s gonna (sic) smoke a joint
in their house and not do anybody else any harm, then perhaps there are other things our
cops should be looking at to engage in and try to clean up some of the other problems that
we have in society.” The article item concludes with the comment: “During her run for
vice president, Palin acknowledged a past history of smoking marijuana. The drug was
decriminalized in Alaska for many years.”3
It is noted that the reference to the libertarian view of Congressman Ron Paul is to
the effect that a person should have the freedom to put in his or her body whatever he or
she wants as long as it does not harm anyone else. However, this view may be subject to
question under the theory underlying our Healthcare Reform legislation mandating that
everyone get health insurance, or suffer a penalty for not doing so. That issue is
currently before the Courts as to whether Congress has the power to compel every
individual to have health insurance for the common good and welfare to reduce the cost
of healthcare for all members of our society and the impact on our national economy and
our national security.
The views attributed to Sarah Palin also raises the question of effective use of our
law enforcement resources to free them up to concentrate on more serious and dangerous
offenses which do far more harm to society, and thus do a better job of promoting public
safety.4
And many articles have raised the question whether marijuana offenses are
used as a means of targeting minority offenders, profiling and promoting arrests and
convictions of a disproportionate number of members of African Americans and other
3
Another article on Sarah Palin concerning an effort by Nevadans for Sensible Marijuana Laws (NSML) to
get her to address its group for a substantial speaker’s fee about regulating marijuana contains the
representation: “The health effects of the substance she is talking about at the WSWA [Wine & Spirits
Wholesalers of America] [alcohol] convention cause 33,000 deaths in the U.S. annually. The comparable
number for marijuana is zero,” according to Dave Schwartz, campaign manager for NSML. He also
asserted: “Alcohol is also associated with violent crime and other destructive acts, while marijuana is not.”
The article concludes with the observation that NSML is backing a 2012 Nevada ballot measure to tax and
regulate marijuana like alcohol.
4
Yet the opponents of change contend that the increased use of marijuana by our youth warrant
maintaining the status quo and marijuana possession as a criminal offense. Progress Notes for December
15, 2009 noted that the most recent annual Monitoring the Future (MTF) study conducted by researchers
at the University of Michigan revealed that in the past two years there has been a small but significant
increase in the proportion of teens reporting that they used have used illegal drugs, with 32.8 percent of
high-school seniors in 2009 reporting past-year marijuana use, as did 26.7 percent of 10 th graders and 11.8
percent of 8th-graders. The article asserts: “Researchers said marijuana use has crept back up to the levels
last reported five years ago after a steady decline in reported use dating back to the mid-1990s.” “So far,
we have not seen any dramatic rise in marijuana use, but the upward trending of the past two or three years
stands in stark contrast to the steady decline that preceded it for nearly a decade,” said lead researcher,
Lloyd Johnston.
Proponents of legalization might well respond that we need to do a more effective job in educating
our youth to the risks involved in marijuana usage and further that a State tax and regulated system could
prohibit the sale or distribution of marijuana to anyone under 21 years of age, and eliminate a system as
now exists where youth can get marijuana easier than getting cigarettes.
4
minorities in the United States as a means of disenfranchising larger numbers of minority
individuals and keeping them subordinate in our society.
Closely connected with the general marijuana question of decriminalization or
legalization is the handling of the medical marijuana exception and the failure of the
federal government to reclassify marijuana as a Schedule II drug rather than Schedule 1,
and thus confirming that in certain situations it does have medicinal value, just as is done
with opiate derivatives. Thus, the issue still remains as to the 16 State jurisdictions
authorizing the use of medical marijuana, while at the federal level it still remains a
federal criminal offense to possess or distribute marijuana for medical purposes.
Questions have been raised as to whether the federal government should enact a statute
requiring abstention – it should not be left to the Attorney General’s policy decision or
discretion – but be a matter of law, and doctors who recommend the use of medical
marijuana and their patients in these States should not have to proceed under the potential
threat of being charged with federal criminal offenses.
Some commentators have
suggested that the federal law should be changed to permit these States to be laboratories
for experimentation with doctors prescribing the use of marijuana, perhaps under
controlled circumstances to assure purity and the lack of contaminants, or even converted
to a liquid, pill or capsule form for use just as a doctor would prescribe an opiate
derivative. It has been represented that a drug called “Marisol” is such an approach, but
many patients have, so it is alleged, claim that they do not get the same benefit from
“Marisol” as they do from the raw plant itself. This raises the question: Why not have
clinical trials under the supervision of NIDA or some other governmental agency to
determine where the truth lies?5
Indeed an article in Progress Notes for July 1, 2010 captioned “Juiced Marijuana
Offered to Medical Users as Alternative to Smoking” states that a California physician is
offering his medical-marijuana patients a liquefied version of the drug that he says won’t
produce much of a buzz but does contain chemicals helpful in treating a variety of
illnesses, according to a Washington Post report June 1, 2010. The article asserts:
“Willets, Calif., physician William Courtney, M.D. said that marijuana with high levels
of cannabidiol (CBD) seems to have the most medical potential; ironically, CBD levels
seem to be lowest in marijuana strains of the plant that are highest in THC – the main
psychoactive substance in marijuana.”
“What has happened is, almost all strains
available in America through the black market are THC concentrates,” said Ethan Russo,
5
The e-mail publication Progress Notes for December 1, 2009 reports that the AMA has called for more
research into the medical use of marijuana. The article states: “The federal government should consider
moving marijuana out of Schedule 1 of the Controlled Substances Act in order to facilitate clinical research
and development of cannabinoid-based medications, the American Medical Association (AMA) said in a
new policy statement.” The article observes that in adopting the policy on November 10, 2009 the AMA’s
House of Delegates, with a report from the group’s Council on Science and Public Health stating that
smoked cannabis has been shown in short-term controlled trials to be effective in reducing neuropathic pain
and improving appetite, and may also alleviate symptoms among patients with multiple sclerosis, changed
its policy position that marijuana should remain in Schedule 1 as a drug with no accepted medical uses.
This article also noted that in February 2008 the American College of Physicians similarly called for an
“evidence-based review of marijuana’s status as a Schedule 1 controlled substance to determine whether it
should be reclassified to a different schedule.”
5
senior medical adviser with GW Pharmaceuticals, which is developing the marijuanabased medication Sativex. The CBD in almost all cases has been bred out. The reason
is cannabis in this country has been cultivated for its intoxicating effect.” “Medicalmarijuana advocates want to see more research into CBD. “The bridge to legalization is
medical marijuana,” said Addison DeMoura, one of the owners of the Steep Hill Medical
Collective in Oakland. “I believe the bridge from medical marijuana to real science will
be CBDs.”
This content suggests that it would be wise for Congress to mandate that NIH do
clinical trials on a prescription version of the medication rather than voters in each of the
respective States voting under referendums or State legislators enacting laws allowing the
use of raw marijuana to be used as medical marijuana with different strengths and
possibly contaminants with negative effects.6
Voter or legislator approved medical marijuana usage is now permitted under
State law in Alaska, California, Colorado, Hawaii, Iowa, Maine, Maryland, Michigan,
Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and
Washington. The Medical Marijuana Blog on the Internet claims that medical marijuana
can be helpful in treating people with Alzheimer’s, Anxiety, AIDS, Arthritis, Autism,
Cachexia, Cancer, Chron’s Disease, Depression, Epilepsy, Glaucoma, HIV, Insomnia,
Migraine, Multiple Sclerosis, Nausea, Pain, PTSD, Spasticity, Stress, and Wasting
Syndrome.7 It is there represented that references to the use of marijuana as a medicine
dates back to 2,000 years BC. It is further there represented that in China it was used to
treat conditions such as malaria, constipation and rheumatism and that cannabis was used
to alleviate menstrual cramps. Recently, there has been an effort to create a Coalition of
mothers to urge that marijuana is safer than alcohol, that teens should not face jail time
for experimenting with the drug, and that some of the mothers have had success in using
marijuana to treat morning sickness and post-partum depression. It is further there
6
eScience News reported December 3, 2009 that researchers from the Global Neuroscience Initiative
Foundation conducted a review of previously published research studies and concluded that THC and CBD
extracts were effective treatments for multiple sclerosis (MS) symptoms, albeit with side-effects like
intoxication. “Considering the distress and limitations spasticity brings to individuals with MS, it is
important to carefully weigh the potential for side effects with the potential for symptom relief,’ said
Shaheen Lakhan, who also noted: “The therapeutic potential of cannabinoids in MS is comprehensive and
should be given considerable attention.” See Progress Notes of January 1, 2010. The review was
published in the journal BMC Neurology.
7
An unintended problem has emerged with reference to the authorization of medical marijuana
dispensaries and distribution of medical marijuana to persons as patients.
Crime and violence has hit
medical marijuana growers, dispensaries and users. According to an article in Progress Notes of May 1,
2010, medical marijuana providers and users have faced robbery and shootings in states where the drug is
legal for medical use. The Associated Press reported March 19, 2010 that one Seattle medical-marijuana
activist has been targeted by thieves eight times, and that the activist critically wounded a would-be thief
during the latest incident. It is also stated in that article: “Last week, a medical marijuana user was beaten
to death in a confrontation with a man who was stealing marijuana from his rural property.” The article
also states that supporters of medical marijuana say “fully legalizing the drug – or putting the state in
charge of supplying medical users – could solve this problem.”
The article concludes with the
observation: “Police in Denver, Colorado said that the crime rate associated with medical marijuana is
lower than that related to banks or liquor stores.”
6
claimed that marijuana remained in the United States pharmacopoeia until 1941 and up
until that time, cannabis was freely available in Queen Victoria and in the United
Kingdom.
The use of medical marijuana controversy is about to become even more heated.
The District of Columbia City Council recently enacted a law in the District of Columbia
allowing the use of medical marijuana through regulated dispensaries. The 13-member
City Council voted unanimously to approve a measure to allow doctors to recommend
marijuana for treating certain chronic conditions. The measure empowers the D.C.
Mayor to establish up to eight city-regulated dispensaries where patients with H.I.V.,
glaucoma, cancer or a “chronic and lasting disease” can obtain up to two ounces of the
drug per month with their physician’s approval. The mayor could subsequently increase
the allowance to four ounces per month without council interdiction. An article in
Progress Notes, Vol. XI, No. 14, dated July 1, 2010 states: “Congress last year lifted a
longstanding ban on use of public money to support medical marijuana in Washington,
D.C., but now a pair of Republican lawmakers wants to block implementation of the law.
The Washington Post reported June 23, 2010 that Reps. Jason Chaffetz (R. Utah) and Jim
Jordan (R. Ohio) have filed a resolution to have Congress disapprove the law, which
would otherwise go into effect in July. Congressional lawmakers blocked the law,
approved by district residents [in a referendum] in 1998, for more than a decade before
relenting last year.” The article concludes with the observation: “The Chaffetz/Jordan
proposed joint resolution is not expected to pass, but the law could still be challenged
through the budget process.” In my view, depending on the outcome, it could also lead to
further litigation in court.
Then there is the closely related question of the use of hemp in America. Progress
Notes for June 1, 2010 reports: “The U.S. Department of Agriculture once used the land
in Virginia where the Pentagon now stands to grow hemp, a close cousin of the cannabis
sativa plant that produces marijuana, the Washington Post reported on May 13, 2010. To
quote the article: “Recently discovered documents show that botanist Lyster H. Dewey
used government land known as Arlington Farms to grow exotic varieties of hemp in the
late 19th and early 20th centuries. A group called the Hemp Industries Association is
using Dewey’s diaries -- found at a yard sale near Buffalo, N.Y. – to support their
campaign to legalize industrial use of hemp, which was banned along with marijuana in
the 1930s.” The article continues: “The history of Dewey’s hemp farm is particularly
poignant for David Bronner, an entrepreneur who developed a successful line of hempbased soaps and has battled the Drug Enforcement Administration (DEA) over its ban on
hemp-based foods. Last October, Bronner was arrested for planting hemp seeds on the
lawn at DEA headquarters, and he payed (sic) $4,000 to buy Dewey’s diaries on behalf of
the hemp association.” ‘Its kind of ironic that we dug up DEA’s lawn to plant hemp
seeds and highlight the absurdity of the drug war, but you take it back 50 years and that’s
what the government itself was doing,’ said Bronner.” Other literature reflects that
during World War II the United States used hemp to make ropes used in the Philippines
and elsewhere.
7
It is significant to note the volatility of these issues and to focus on what happen
in Portugal between 2001 and 2006. According to a Report done under the auspices of
the Cato Institute in Washington, D.C. by Glenn Greenwald, an attorney and researcher,
Portugal decriminalized possession of small quantities drugs, including marijuana,
cocaine, heroin and methamphetamines in 2001 and between 2001 and the end of 2006
the study revealed that there was no increase of marijuana drug usage. Indeed, it was
suggested that it was no longer an “attractive nuisance” to entice young people to use
marijuana. A Times Magazine article of April 26, 2009 observed that compared to the
European Union and the United States, Portugal’s drug use numbers were impressive.
“Following decriminalization, Portugal had the lowest rate of lifetime marijuana use in
people over 15 in the European Union: 10%,” observing that “the comparable figure in
the United States is in people over 12: 39.8%.” The Times article further states that the
Report establishes that illegal drug usage among teens in Portugal declined. The Times
article also represents that the Cato report shows that “between 2001 and 2006 in
Portugal, rates of lifetime use of any illegal drug among seventh through ninth grades fell
from 14.1% to 10.6%; drug use in older teens also declined. Lifetime heroin use among
16 to 18 year olds fell from 2.5% to 1.8% (although there was a slight increase in
marijuana use in that age group).”
Some might argue that the nature of the population in Portugal may be far
different than the population in the United States which may not react in the same
manner. But rather than act on assumption, speculation and theory, I would recommend
that Congress, or any Commission created by Congress, would hold hearings at which the
drug czar of Portugal and other high-level officials would testify before it as well as
psychologists as to how Portugal teens and population might differ from teens and the
general population in the United States and thus it would be reasonable to conclude that
our population might not act in the same manner.
We should also hear from law enforcement officials from those States which have
decriminalized possession of small amounts of drugs as to whether any tremendous
increase in usage has occurred by teenagers or young adults.8 Thus, we should look at
8
Rhode Island has adopted this approach in considering the question. The Providence Journal reported
on July 2, 2009 that the Rhode Island General Assembly had commissioned a panel to study the issue of
marijuana legalization. An article in Progress Notes for July 15, 2009 stated: “The nine-member Special
Senate Commission to Study the Prohibition of Marijuana will be comprised of ‘elected members of the
Rhode Island Senate, local law enforcement officials, physicians, nurses, social workers, academic leaders
in the field of addiction studies, advocates or patients in the state’s medical marijuana program, and
advocates working in the field of prisoner reentry, economists, and members of the general public.” The
article continues: “The panel will explore such questions as how much tax revenue the state would receive
if marijuana was legalized and taxed at a rate of $35 per ounce. Members also will look at the experiences
of other nations and states that have legalized the drug, youth access to marijuana, and the relationship
between marijuana use and crime.” “Sponsor Sen. Joshua Miller (D. Cranston) said the study was
prompted in part by Massachusetts’ recent voter-driven decriminalization of minor marijuana possession
and “a national trend towards decriminalization.” The article concluded with the observation that Rhode
Island lawmakers also recently legalized the sale of marijuana to medical users.
8
such states as Massachusetts where in November 2008 its citizens voted in a referendum
to decriminalize small quantities of such drug substances.9
I also note that in 2009 Mexico decriminalized possession of small quantities of
drugs.10 I would recommend that we hear from officials of that Nation as to whether
such an approach has led to substantial increase of the usage of marijuana or other illegal
drug substances. These developments suggest the question of whether we can educate
our youth – and the entire population - of the public health consequences of the use of
marijuana just as we have educated our public about the consequences of tobacco
smoking and achieve a reduction in the use of marijuana in this Nation in eliminating the
application of our criminal laws to such behavior.11
9
On November 4, 2008 the citizens of Massachusetts approved a ballot initiative to decriminalize
possession of small amounts of marijuana, making getting caught with less than an ounce of pot punishable
by a civil fine of $100. The Boston Globe reported that this change in the law meant that someone found
carrying as many as dozens of marijuana cigarettes would no longer be reported to the State’s criminal
history board. Thus the matter would be treated in the same manner as a ticket for a building code citation,
according to the Boston Globe, which observed that an individual could appeal an infraction in court within
21 days or pay a $100 fine set in the law. Further, the proposal would require those persons younger than
age 18 to complete a drug awareness program and community service. The civil fine would increase to as
much as $1000 for those persons who fail to complete the program. This law went into effect on January
2, 2009.
10
An article in Progress Notes for July 1, 2009 reported that the Los Angeles Times reported June 21,
2009 that the Mexican Congress passed a law that would decriminalize the possession of small amounts of
marijuana, cocaine, methamphetamine, and other drugs. The article asserts: “Users caught with five grams
of marijuana or 500 milligrams of cocaine who intend to use the drugs for ‘personal and immediate use’
will not be criminally prosecuted, for example, according to the legislation. Police will notify the
individuals of available clinics and encourage them to enter treatment programs, however.” The article
further recited that President Felipe Calderon had proposed “the decriminalization bill in an effort to
separate small-time users from big-time dealers. His plan is to focus crime-fighting resources on dealers
and drug barons, rather than consumers.” The article concludes: “The important thing is . . . that
consumers are not treated as criminals,” said Rafael Ruiz Mena, secretary general of the National Institute
of Penal Sciences. ‘It is a public-health problem, not a penal problem.’”
California’s Secretary of State has certified a ballot question that could lead to the state legalizing
possession of marijuana, and the campaign to get the measure approved will focus partly on its fiscal
impact on the cash-strapped state, the New York Times reported March 26, 2010. An article in Progress
Notes of April 1, 2010 based on a news release from Join Together of March 26, 2010 states: “California’s
state budget deficit stands at $20 billion, and drug-policy reform advocates contend that legalizing, taxing
and regulating marijuana could raise $1.4 billion in tax revenues and cut law-enforcement and prison costs.
The article also observes that the leading candidates for governor of California oppose legalization, but
polls show 56 percent of state residents support the idea. The ballot question would let local governments
opt out of the law, limit marijuana possession to adults ages 21 and older, and ban smoking in public or
around children.
11
9
Some advocates might urge a move to decriminalization first for a period of 5 to
10 years in our own population’s culture to see what the results will be, and whether there
would be a significant increase in drug usage and harms to our society. They might
urge that we first go the way Portugal has gone as an interim step while we study and
evaluate the process and the consequences. Others might advocate that we should do as
we did with Prohibition and immediately move forward to legalization, with a strong
education program to discourage our populace from using black market drugs because of
contaminants and quality control issues and for health concerns. Others might argue that
in legalizing marijuana, we would be engaging in an experimental phase, if we delayed
legalizing heroin, cocaine and methamphetamines until we have seen the result of the
legalization of marijuana. This would be a partial and evolutionary approach to this
most perplexing problem facing the citizens of this country.
Another approach suggested by some advocates has been to decriminalize the
possession of small amounts, but to allow a civil penalty or treat the matter as a civil
infraction.12 On April 17, 2008 Congressman Barney Frank introduced H.R. 5843
regarding marijuana for personal use. It would have removed criminal penalties for
possession for personal use up to 100 mg and would have also removed penalties
associated with the “not-for-profit” transfer up to one ounce of marijuana and only allow
a civil penalty of no more than $100 to be imposed for the public use of marijuana. That
Bill however never gained any traction. Some commentators have claimed that it would
not eliminate the black market in the selling and distribution of marijuana.
This leads to the question of whether merely moving to decriminalization is
enough. Decriminalization would still leave in place the black market and the selling of
marijuana by drug cartels and dealers, could lead to fights over turf or territories, and
result in burglaries, robberies and homicides.
Thus, some thoughtful commentators
might suggest that legalization is the far better approach with marijuana being regulated
and taxed, and dispensed through State controlled dispensaries or stores, much in the
manner some States have used State Controlled Liquor Stores to sell hard liquor. In
California in 2009 State Assemblyman Tom Ammiano introduced a Bill that would have
legalized marijuana and impose a $50-per ounce state tax on the drug, saying that the
measure would raise up to $1.3 billion for the State annually. That Bill did not gain
traction and pass, but now pending before the voters of California is a referendum
referred to as Proposition 19 to achieve this purpose to be voted on in November 2010.
12
This is the approach taken in Massachusetts. It is recommended that should the Congress or any
Commission created, or any State wish to follow this approach, it would be prudent to have officials from
the Massachusetts Executive Office of Public Safety and Security appear by invitation to testify at a
legislative or commission hearing on how the law has worked in reality in Massachusetts since January 2,
2009 and in any other State employing the civil infraction approach. Opponents of the Massachusetts’
Initiative had argued that decriminalizing marijuana possession would promote drug use and benefit drug
dealers at a time when they say marijuana has become more potent. They warned it would increase
violence on the streets and safety hazards in the workplace, and cause the number of car crashes to rise as
more youths drive under the influence, according to the Boston Globe articles on this Initiative. As of this
date, more than 18 months would have passed, and the question should be addressed: “Have these fears
materialized?”
10
The Governor of California in May 2009 stated that he was “open for debate” on the
question of whether marijuana should be legalized, taxed and regulated in order to
generate revenue for the state, according to the San Francisco Chronicle of May 6,
2009.13 In this way the government could restrict the distribution of marijuana to
persons under 21 years of age, just as it now deals with underage alcohol beverage
drinking.
Further, if there were competitive lawful dispensaries selling marijuana at
reasonable prices, some would assert, this could eliminate the drug cartels, the illegal
dealer operations, and the related violence which accompanies drug distribution in
America today and would tremendously reduce the crime rate and its costs, the use of
vital government financial resources for law enforcement activities, court operations, and
incarceration, freeing up these funds for education, healthcare services, trash and garbage
collection services, maintenance of highways, bridges and streets and other vital public
services needed for a thriving society. To the extent that there are individuals willing to
purchase marijuana for personal consumption, they would be assured of the content of the
substance and that the drug was not contaminated by substances which might lead to
overdose hospitalizations, death or other harmful consequences.14
13
It is significant to note that the Join Together organization on February 13, 2009 reported that the
former presidents of Columbia, Brazil and Mexico declared the war on drugs was a failure and called for a
meaningful debate on alternatives, including more treatment for drug users and legalization. They were
acting under the umbrella of the Latin American Commission on Drugs and Democracy to call for a
serious, international discussion on alternative anti-drug policies.
An article in Progress Notes for
February 15, 2009 noted that the United Nations was then poised to hold meetings to draft a new drug
policy for the next decade. It stated that the presidents’ group of the U.N. had called for a focus on treating
users, decriminalizing marijuana, and investing in drug education.
14
An article in Progress Notes for May 1, 2010 states that the Associated Press reported April 20, 2010
that in a telephone poll of 1,000 adults nationally, only 33 percent of respondents favored marijuana
legalization, along the lines of what California voters will consider this November, while 55 percent
opposed it. By contrast, 60 percent of respondents supported use of medical marijuana, which is now
allowed in 13 states. In addition, 74 percent said they believe the drug yields medical benefits for some
individuals. The article recites: “On the legalization question, only the age group under 30 gave majority
support to the idea (54 percent). Also, only 14 percent of all opponents to legalization said they would
support the idea if states opted to tax marijuana. The revenue generation argument has been a popular
strategy employed by pro-legalization groups in cash-strapped states.” The article concludes with the
observation: “Many opponents of legalization in the poll cited concerns that legalization would lead to
more widespread abuse of the drug. ‘I think it would be chaos if it was legalized,’ said Shirley Williams, a
retired Illinois teacher. ‘People would get in trouble and use marijuana as an excuse.’”
11
I conclude with the qualification I expressed at the beginning of this Paper that I
have endeavored to set forth the pros and cons on both sides of the issues herein in a
balanced fashion, and as I retain my Commission to sit as a Senior Judge for the rest of
my life and may have to decide some of these issues in a litigation context, civil or
criminal, no one should infer what my personal view is on any of the issues presented.15
15
It is noted that the United States Senate Judiciary Committee has reported out a Bill sponsored by
Senator Jim Webb and thirty-nine (39) other Senators to create a National Crime Commission to review
both Federal and State Criminal Laws in this Nation. This Bill is Senate No. 714. The companion Bill in
the United States House of Representatives is H.R. 5143.
Should this legislation pass, it will be my
strong recommendation that the Commission conduct extensive hearings on the issues presented here and
hear from witnesses from foreign countries and from the States to get the actual facts as to how some of
these changes have worked empirically in living reality, and not act on fears, conjecture and speculation,
nor on ideology, moral or religious philosophy, but that future drug law policy in this Nation both at the
federal and state levels be based on “evidence-based science and practices and actual realities.”
12