Creating Legalization - What Rules and Why?
The next phase of America's long running debate over marijuana's legalization involves rules and regulations. Under what terms and conditions should one be free from the threat of arrest, sanction, and possible imprisonment for growing, selling, and/or using marijuana?
For several decades the debate only concerned that last matter – what is an appropriate penalty for marijuana possession? Usually the question was framed more narrowly, regarding the penalty for small, personal use amounts of marijuana, in most cases the query was focused on possession of an ounce or less. This debate often concerned the decriminalization of marijuana possession, in which possession of an ounce or less became subject to a fine, frequently $100, and may or may not involve a conviction of a criminal misdemeanor offense. Many jurisdictions adopted a policy of sentencing marijuana possession offenders to probation and charging them a fine, regardless of the maximum penalty provided for by law. Nonetheless, marijuana possession is still punishable by up to a year in jail in many parts of the country. As a practical matter, however, the question concerns an appropriate punishment – and the public's answer, in most places, is that marijuana possession should not be too harshly punished. The public does not support or insist on severe penalties for possessing pot.
Cultivation and sales of marijuana, though, are entirely different matters. With exceptions in some states for medical use, the manufacture (as it is called) and/or distribution of marijuana is usually a felony offense under criminal law, punishable by a year or more in prison. Indeed many individuals who possess moderate amounts of marijuana for personal use, or grow marijuana for personal use, are often prosecuted for possession with intent to sell marijuana. In many places two dozen plants or a pound of marijuana is held by the state to be far in excess of personal use amounts and obvious evidence of an intent to distribute, subjecting an individual to prosecution for a felony and placing them at risk of years under correctional supervision, most likely in prison.
Medical marijuana laws have created exemptions from these policies for qualified medical users, though even here the debate continues over just who is qualified, how much marijuana they are entitled to in order to meet their therapeutic requirements, and just how they are supposed to obtain it. Now – in California and Colorado for example – states are addressing the issue of publicly operated dispensaries which sell marijuana over the counter to qualified patients, and this emerging industry has experienced (and continues to experience) rapid growth and capitalization. The organizations involved are grossing large amounts of money, as are their suppliers.
Discussion about legalization, on a practical basis, concerns proposing new laws, rules, and regulations about the cultivation, distribution, and possession of marijuana. Users want to be free from the threat of criminal sanctions. Those in the medical marijuana industry want to be able to maintain their ability to increase their capitalization – they want to make money. Growers, who supply both the medical marijuana industry and the general public, want to continue to profit from artificially high marijuana prices – they also want to continue to make money. Local government, which, in some areas, is beginning to take an interest in providing a legal environment for marijuana commerce, also wants to make money – they want to make money from taxes on the marijuana trade.
All of this makes marijuana legalization a much more complicated issue than many supporters once believed or may be willing to accept. There are many people who would benefit from regulations that restrict access, restrict production, or both. Restrictions keep prices inflated. For many interests, their goal in influencing the creation of a regulated marijuana market is to keep the price of marijuana inflated. They want pot prices to stay high, and they wish to conspire with other stakeholders to restrict supply. Limited supply, faced with strong demand, creates high prices. That's basic economics.
So, here are some important questions for comment and discussion.
Who should have access to legal marijuana? If only patients, then for what conditions? If the general public, then should there be an age limit? And if so, what should it be?
Should individuals be able to grow marijuana for their own use? And if so, how much? Should there be a limit? Should a license be required, and should the license require a fee? If so, how much should that fee be?
Should individuals be able to grow marijuana for sale to others, and if so should this activity be licensed, and at what cost? Should the cultivation of marijuana for sale be similar to cultivation of other farm crops, such as corn or tomatoes, or should it be a tightly controlled industrial operation like the manufacture of pharmaceutical drugs?
Should the retail sale of marijuana be restricted to special stores, or available in any business that wishes to engage in this type of commerce? Should it be subject to a special excise tax like alcohol and cigarettes, or merely subject to routine sales taxes?
What criminal penalties, if any, should be applied to marijuana's cultivation, sale, and use? Should actions such as sale or distribution to a minor, driving under the influence, use while driving, sale or cultivation without a license, cultivation beyond licensed amounts, and evasion of sales/excise taxes be criminal offenses?
And finally, what consumer protections should be required by law? Should marijuana be certified as toxin free? Should potencies be determined and labeled? Should marijuana be certified as organically grown? Should marijuana be certified as containing organic THC and free from chemical adulterants such as synthetic cannabinoids and/or other drugs?
Marijuana legalization advocates often suggest that alcohol and tobacco provide reasonable regulatory models to use for a regulated cannabis market, and these models provide easy answers to all these questions. These models, however, are not necessarily in the interests of today's marijuana profiteers. Nor are these models necessarily the basis for legalization proposals being advanced in various jurisdictions – proposals that are often modestly drafted to calm public concern and/or respond to anticipated political opposition.
Political pragmatism is and will be required to legalize marijuana. Less than ideal regulations will have to be tolerated by advocates of legalization. The state will require revenue in any deal over an end to criminal penalties. These are hard truths, but that's the reality of the situation. That said, the question remains: What sort of regulations do marijuana users think are required for a legal marijuana market?
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.
The Cannabis Column
Creating Legalization - What Rules and Why?