Cannabis Column #51: Marijuana in the Age of Obama

Jon Gettman is a long time contributor to HIGH TIMES. A former National Director of NORML, Jon has a Ph.D. in public policy and regional economic development and consults with attorneys, advocates, and non-profits on cannabis related research and public policy issues. On October 8, 2002, along with a coalition of organizations, he filed a new petition to have cannabis rescheduled under federal law. This column will track that petition's progress.

Marijuana in the Age of Obama

Overall it appears that the prospects for marijuana law reform are good. Prohibition is an artifact of limited government, a cynical approach that says that we can do no better than this and there is no advantage to trying any other approach. The turn toward activist government, then, represents opportunities for innovation and change in several areas of government policy. The president has said as much on several occasions, highlighting his interest in a more pragmatic approach to problem solving and policymaking.

The fiscal climate of the nation has created an urgent need for pragmatism. America can no longer afford ideology, it needs results. Government programs, while receiving a massive influx of funding under the Administration’s stimulus package and recent budget, must provide results. State governments are facing severe budget issues of their own. Money is tight, and marijuana prohibition is an expensive luxury and many states can no longer afford. Indeed the dominant trend over the last several decades can be characterized as the march of states away from supporting the federal policy of prohibition. States have opted out of enforcing stiff criminal penalties and sentencing marijuana users to jail time for possession of small amounts of marijuana.

Policies like decriminalization, medical-marijuana exemptions, conditional discharge, reduced criminal penalties, police and prosecutorial discretion and diversion from the criminal justice system to treatment are all challenges to the notion that marijuana use is a serious crime requiring serious criminal penalties. All are admissions that enforcement of federal prohibition is an expensive proposition and that many state and local governments have opted out of the program. So the worsening fiscal condition of federal and state governments promises increased receptiveness to further marijuana-related reforms. They can’t afford to take any other approach.

We are also in an era in which there will be increased attention to racial disparities in the criminal justice system. Yes, partly because we now have an African-American president and an African-American attorney general, who by the way has recently observed that Americans have been afraid to honestly discuss race-related issues. More important, though, is that the Democrats in power in both Congress and the White House, and their staffs, are both aware of the disproportionate number of blacks in our jails and prisons and the ethical problems such disparities produce. Democrats realize the necessity for race-neutral criminal justice policies, for example, in which sentencing produces similar outcomes for both whites and blacks passing through the criminal justice system.

Marijuana arrests provide a vivid context for examining unequal treatment of blacks and whites by the criminal justice system. We know, for example, that marijuana use is about 20% more prevalent among blacks, and how arrest rates for blacks are several hundred percent greater than arrest rates for whites. Levels of marijuana use, therefore, do not explain the differences in arrest rates.

The Obama Administration has recently confirmed that it will keep the president’s campaign promise not to interfere with state medical marijuana laws, and this is a historic development in marijuana law reform. One of the fundamental benefits of our federal system is to allow states to experiment with new policy approaches. Eventually the primary result of this approach is that other states adopt successful policies, and the federal government also learns from these innovations and adjusts its own policies accordingly. The Obama Administration has already given the green light to letting this process continue, and this is an important sign that the current state-level reforms, such as California’s model medical-marijuana laws, will not be subject to a federally influenced roll back.

All of these factors create a positive environment for reform. The keys to taking advantage of this new environment derive from these four central points: We are in a pragmatic age, so it is crucial to stress that marijuana prohibition has failed to adequately regulate marijuana and restrict access to adults. We’re in an era of tight money, so it is valuable to stress that there are other more pressing priorities for law enforcement than a futile effort to arrest marijuana users. Our leaders are committed to equal treatment under the law, so it is relevant to call attention to the racial disparities of marijuana law enforcement. We have a federal system in the United States, so it is instructive to learn from the successes of state-level innovations in marijuana policy and to continue to look to the states for leadership in finding new approaches to address marijuana-related social issues.

A climate for change will be nurtured and developed through attention to four simple rules: Advocates for marijuana’s legalization should stress pragmatism over ideology, performance over potential tax revenue, priorities over injustice, and local innovation over federal interference. There are philosophical reasons to end the drug war, but the practical reasons are the best way to advance this philosophy in the current climate. There are fiscal benefits to legalizing marijuana, but the benefits of greater and more effective control over teen access are more compelling and convincing. Marijuana prohibition creates a great injustice, but stressing the need to prioritize the use of limited resources is a more effective argument. Federal dominance causes resentment among many state residents and officials, but promoting local level creativity is the most effective way to champion reform.

The challenge before the reform community is not convincing Washington that this is the time for marijuana’s legalization, but instead to rally support throughout the country for a radical change in our national approach to this issue. If reformers nurture and cultivate the crop of change, Washington will have little choice but to harvest it. Can America legalize marijuana in the age of Obama? Yes, it can.