Legal Pot's Future: Dazed and Confused

By Maia Szalavitz 11/13/12

Washington and Colorado voted last week to legalize marijuana, but the politics of opposition are still in play. How will a second-term President Obama respond?

A San Francisco smoke-in photo

As the reality of the election results starts to hit, two states are facing the fact that voters want—and have authorized—legal recreational marijuana. Colorado and Oregon will now have to determine how to implement the will of the people, which flouts federal marijuana prohibition.

With 18 states and the District of Columbia now also on the medical marijuana bandwagon, change is clearly in the air. Last year, for the first time, Gallup found a national majority in support of legal marijuana. But will President Obama stand with the hardliners who insist on marijuana prohibition at all costs? Or will he finally recognize that the current law is not only irrational, unenforceable and absurdly expensive, but also a vehicle for racially biased enforcement and social inequities?

There are clues that the re-elected president—who doesn’t have to face voters again and who won in large part due to a coalition of minorities disproportionately affected by the war on drugs—may be open to letting the states experiment. When California tried to pass a similar initiative in 2010, Obama’s attorney general, Eric Holder, vociferously opposed the measure, saying in a letter that he would “vigorously enforce” federal law, not just against sellers and growers but even against users.

In 2012, however, the Justice Department stayed silent and has so far refused to comment on what actions it might take, other than noting that Congress has declared that marijuana is a Schedule 1 controlled substance, which means that it cannot be used legally, even as medicine.

The Justice Department has refused to comment on what actions it might take on the new legal-pot state laws.

That status could change, however. The US Court of Appeals recently heard a lawsuit filed by medical marijuana advocates challenging the classification. Americans for Safe Access (ASA) argued that the drug should be placed in a lower schedule, along with drugs like cocaine and prescription pain medications that can be dangerous but can also be used medically.

Hundreds of peer-reviewed publications support allowing the medical use of marijuana, which is why both the Institute of Medicine (the organization charged by Congress with attempting to settle medical controversies) and the American Medical Association say that it should be permitted. Indeed, an extract of pure cannabis, known as Sativex, has been approved for prescription use in Canada and Britain. Sativex is currently undergoing trials for FDA approval in the US.

Should that court decide that all this data abundantly supports rescheduling marijuana, its legal status would be altered. A decision could come any time in the next few months to a year, according to ASA. The Obama administration could decide to appeal to the Supreme Court—or it might let it stand. Those choices, in combination with the strong showing for legal marijuana at the polls, might well signal the beginning of the end for marijuana prohibition.

Meanwhile, the states that legalized have to figure out how to implement their new laws. The Seattle Police Department issued a cheeky blog post on the issue, entitled “Marijwhatnow?”

It answers important questions like “Can I legally carry around an ounce of marijuana?” (Answer: yes, after December 6, but don’t display it publicly) and “Well, where can I legally buy pot then?” (The Washington State Liquor Control Board is trying to sort that out. It has until December 1, 2013, to make the final rules; in the interim, growing and distributing marijuana for non-medical use remains illegal).

In Colorado, regulators have until July 13, 2013, to create growing and distribution rules, but recreational marijuana stores cannot open legally until January 2014. However, possession and growing for personal use become legal under state law immediately. Although the state attorney general wants to wait for a clear statement of intent by the federal government about enforcement of national law, advocates for legalization are pushing the state to act first to implement the voters’ legislation.

Meanwhile, three Colorado legislators are trying to do something about the clashing federal law: two representatives and a senator are introducing federal legislation to allow legal use of marijuana in states that approve it. But if congressional voting records on drug policy are anything to go by, this has little chance of passing.

Nonetheless, signs of panic among prohibition supporters are evident. For one, there are very few who still crusade publicly for it: the same single source, Kevin Sabet, who is a former Obama drug advisor, is cited in virtually all media coverage of the issue (according to his website, "he has been quoted in over 15,000 news stories" since becoming a private consultant for drug policy a year ago). He writes many of the op-eds in favor of the status quo himself (though The New York Times recently also managed to find a psychiatrist willing to write an anti-pot screed).

But Sabet was long affiliated with the Drug Free America Foundation (DFAF), which is so reactionary on drug policy that it remains opposed to needle exchange programs, despite support from every public health authority that has ever studied them. Sabet is hardly the voice of a progressive likely to represent Obama’s second term, though he does illustrate nicely that Democrats have often done little to distinguish themselves from Republicans on this issue. [ed.: Sabet, who is also an assistant professor at the University of Florida, has contributed columns to The Fix. You can read them here, here and here.]

Arresting marijuana users and dealers has had no correlation at all with rates of use or addiction; treatment is far more effective.

Indeed, over the past three decades any sign of being “soft on drugs” was seen as a potentially fatal political weakness: Democrats signaled their toughness on crime by being as harsh or even harsher than Republicans. That, in fact, is how we wound up with crack laws 100 times harsher than those for powder cocaine, laws that overwhelmingly incarcerated black people even though whites are actually more likely to use cocaine than African Americans. And it’s why in trying to remedy this injustice, the scientifically unjustified disparity was merely reduced, not eliminated.

It’s also how we got into a situation where black youth are at least twice as likely to get arrested for drug crimes as whites despite equal or sometimes lower rates of using and dealing. And how we ended up as a country where blacks are five times more likely to be prosecuted for drug crimes as whites (one in three black men go to prison over the course of a lifetime).

Arresting marijuana users and dealers hasn’t stopped marijuana use or addiction; in fact, arrest rates have no correlation at all with rates of use or addiction. Indeed, studies show over and over that treatment is a far more cost-effective way of fighting addiction problems than arresting or jailing users. While marijuana addiction can be harmful, having a criminal record and being incarcerated is far more so.

After all, marijuana smoking didn’t prevent Barack Obama, George W. Bush or Bill Clinton from becoming president—and it wasn’t what prevented Al Gore from coming very close, even though some of these politicians reportedly smoked quite frequently. But being arrested for it almost certainly would have precluded their political ambitions. It will be interesting to see whether President Obama will move America towards saner drug laws that recognize these facts and treat drug problems as the health issue they really are.

Maia Szalavitz is a columnist at The Fix. She is also a health reporter at Time magazine online, and co-author, with Bruce Perry, of Born for Love: Why Empathy Is Essential—and Endangered (Morrow, 2010), and author of Help at Any Cost: How the Troubled-Teen Industry Cons Parents and Hurts Kids (Riverhead, 2006).

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Maia Szalavitz is an author and journalist working at the intersection of brain, culture and behavior.  She has reported for Time magazine online, and is the co-author, with Bruce Perry, of Born for Love: Why Empathy Is Essential—and Endangered, and author of Help at Any Cost: How the Troubled-Teen Industry Cons Parents and Hurts Kids. You can find her on Linkedin and  Twitter.