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Legalizing Marijuana: An Issue That Just Won't Go Away

Tuesday, 20 Apr 2010 | 12:01 AM ET


I am a baby boomer. I spent seven years in Ann Arbor attending the undergraduate and law schools of the University of Michigan, the home of the “Hash Bash.” (A yearly event of speeches and music centered on reforming marijuana laws)

When I arrived in Ann Arbor in 1966, I had never heard of marijuana. Two years later, when I finally figured out what that odor in the hall actually was, I decided to inhale. As long as I didn’t drive or put anybody in harm’s way, I wasn’t completely sure what the big deal was.

Approximately forty years later I’m still not sure I understand what the big deal is, although I must admit that my return to Ann Arbor where the penalty of possessing marijuana is only twenty-five dollars for the first offense has greatly influenced my thinking. (Interestingly, use of marijuana on university property subjects the user to greater sanctions, including jail time.)

Legalization of marijuana is now back in vogue primarily because of it’s palliative uses. An ever increasing number of states allow individuals suffering from ailments as diverse as cancer and glaucoma to use marijuana because it actually helps the patient.

Under the legal doctrine of federal “preemption”, however, using marijuana for medical purposes is still a crime. Thus, it really was a big deal when the U.S. Department of Justice announced guidelines which directed federal prosecutors in states which had decriminalized the medical use of marijuana to focus their attention on more serious drug trafficking cases.

In announcing a shift in policy, the Justice Department acknowledged the rights of states to regulate the health and welfare of their own citizens and the unfairness of prosecuting patients with severe illnesses, often terminal illnesses, and caregivers who complied with state laws.

For several years pharmacologists, physicians, and researchers at some of our most prestigious medical centers and universities have advocated the use of medical marijuana. More recently commentators have focused on the social and economic costs of driving underground the substantial and widespread use of this plant.

My own national bar association, The American Bar Association, supports federal legislation to remove the federal prohibition against the treatment of patients with marijuana “who are under the supervision of a physician and under controls adequate to prevent diversion or improper use”.

This policy was first adopted by the Association’s House of Delegates (a group which establishes policy for the association) in 1984. As early as 1972, however, the House of Delegates distinguished the use of marijuana from other controlled substances and dangerous drugs. As a result of the American Bar Association’s action, this classified possession of marijuana as a misdemeanor rather than a felony.
Recently, various constituencies within the ABA have discussed a resolution similar to the one recently passed by Washington State’s King County Bar Association: “Federal law should not impede or preempt the exercise of state authority to adopt and implement law governing the production, distribution or use of marijuana within a state’s border.”

What’s going on? To a large degree, it’s a simple matter of realizing that history has indeed repeated itself. Prohibition, as enshrined in the 18th Amendment to the U.S. Constitution, didn’t work in the early 20th century and it doesn’t work any better in the early 21st century. Indeed it is now widely accepted that prohibition of alcohol helped to create and sustain numerous organized crime syndicates.

Similarly prohibition of marijuana has helped to create and sustain foreign cartels and lawless gangs which murder innocent citizens both within and outside of our country. Rather than eliminating alcohol, prohibition merely increased its costs and allowed the product to escape taxation. The same is true for marijuana. It is estimated that regulating and taxing marijuana would yield combined savings and taxes of between $10-14 billion a year.

Illegal marijuana is still California’s biggest cash crop responsible for approximately $14 billion a year in sales. This is ahead of the state’s second largest agricultural commonality, milk products, which brings in $7.3 billion a year. California tax collectors estimate that a tax on marijuana would create approximately $1.3 billion per year of much needed revenue. And it’s anybody’s guess as to how many fewer prisons would need to be built, staffed and maintained.

Although the debate to legalize marijuana is clearly two-sided, on balance, however, the ayes seem to have it. Drug policy especially as it relates to marijuana is a total failure. We haven’t stopped or even curbed it use, and the cost to society as a result of increased incarcerations is incalculable.

This truism was recognized by no less than two former U.S. attorney generals, a former Chief Judge of the Third Circuit Court, and a former president of the American Bar Association when they founded the Voluntary Committee of Lawyers, VCL. The VCL is an association of lawyers and judges whose members share a strong misgiving about the direction and consequences of the United States’ drug policy.

Several years ago this committee issued a comprehensive analysis of why we might want to rethink our drug policy which allows for the use of morphine, a constituent of opium, yet prohibits the use of marijuana. This prohibition helps sustain known terrorists organizations such as the Taliban, Al-Qaeda, Hezbollah and Hamas to tap into the prohibited drug trade to finance their operations. Thus ironically our drug policies are financing terrorism against the United States and its allies.

Many have observed that it is easier for the average high schooler to obtain marijuana than to buy a six-pack. The fact that marijuana is “completely underground” drug clearly has something to do with this foolish anomaly. Isn’t it time to fix a policy that is clearly broken?