Another historic election for cannabis legalization is approaching; so far, the polls look promising. But whether the voters approve pending initiative measures in Arizona, California, Massachusetts, Maine and Nevada or not, making legalization the law of the land, effective throughout the nation, remains a daunting task.
First, organized and well-funded opposition has emerged in these latest campaigns. They are a little late to the party, and they have a lot of catching up to do. Legalization now enjoys the most public support it has ever had. But opponents are using this to rouse and motivate voters, often using a “barbarians at the gate” approach based on hysteria about legal cannabis and/or distorted reports about the impact of legalization where it has already been enacted.
Second, opposition to legalization from existing cultivators may emerge as a significant roadblock to reform. Growers in California favor an end to prohibition, but fear competition from big business under Proposition 64 which will go before voters this fall, and some believe it to be more profitable to work outside legal markets and sell marijuana to non-legal states. Should this occur, on one hand it will call attention to the need for national legalization, but on the other, it will contribute to a backlash against legalization that will further mobilize opposition in other states to continued reform.
Nonetheless, the way to close the deal on legalized cannabis is to further expand the terms of the debate to include examination of how the illegal business prospers under prohibition. Only a small percentage, roughly 2 percent, of all people who sell marijuana are ever arrested. Marijuana has remained widely available despite the arrests of an average of 90,000 people a year from 2006 to 2015. The most people the police have ever managed to arrest in a single year was 103,247 in 2010; in 2015, law enforcement only managed to arrest 68,841 people for marijuana sales. And yet according to national survey data, millions of people sell marijuana every year.
So, the simple truth is this—under prohibition illegal marijuana sales thrive. End of story, or, at least, it should be.
The problem is two-fold. First, supporters of prohibition refuse to acknowledge the extent, scope and persistence of the illegal market in marijuana. They are in an acute stage of denial. Second, advocates of legalization will refer to the need to get rid of the illegal market, but they don’t pay a lot of attention to just how many arrests there are each year for marijuana sales.
The classic argument against prohibition is the injustice of arresting marijuana users, and for this, the public has a lot of sympathy, understanding and agreement. They are not, however, nearly as sympathetic regarding arrests of people who sell marijuana. Legalization advocates know this, and consequently rarely refer to sales arrests when they make arguments against prohibition. But they need to start doing this to close the deal.
Marijuana sales arrests are important because in the aggregate, looking at the total, they quantify the futility of trying to make prohibition work as an effective means of drug control.
More important, though, is that many marijuana arrests are just as unjust as marijuana possession arrests. Many sales arrests are, really, possession arrests, but possession of more marijuana than the police, courts or the public are willing to recognize as being for personal use.
Many cultivation cases are charged as manufacturing with the intent to distribute based on a prosecution argument that the amount being grown is more than an individual would consumer in a year’s time. They make this case by exaggerating the potential yield of the plants involved and minimizing the amount of marijuana someone might consume.
Also, consider a marijuana consumer who buys four ounces of marijuana because they want to get a better price and to keep from having to go out and buy marijuana again later. For some reason, they get arrested and charged with possession of marijuana with intent to distribute solely because of the amount involved.
Marijuana sales arrests are not an indication of how many professional drug dealers have been arrested. Even when people possess marijuana with the intent of selling it, their plans are to sell it to a close circle of friends (a fact also supported by national survey data).
In any event, sales arrests tell us something important about public policy—there is no way to control the current illegal marijuana market through arrests and criminal sanctions. That deserves discussion, and greater attention to this issue also will call supporters of prohibition to account for their implicit support for overpriced, non-regulated illegal marijuana sales.
This is the discussion the public needs to hear in order to close the deal on legalizing cannabis throughout the United States.
Previously in Pot Matters: Blacks Still Arrested at Extreme Levels in Massachusetts
Read all of Jon Gettman’s columns right here.
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