Why is Marijuana Decriminalization Not Enough?

Decriminalization of marijuana possession is a necessary first step toward a more comprehensive reform of the drug prohibition regime. However decriminalization alone does not address many of the greatest harms of prohibition such as high levels of crime, corruption and violence, massive illicit markets and the harmful health consequences of drugs produced in the absence of regulatory oversight. The Costs and Consequences of Prohibition Marijuana prohibition has been a costly failure. In 2011, there were 757,969 marijuana arrests in the U.S. comprising half of all drug arrests. Eighty-six percent of these arrests were for simple possession, not sale or manufacture. There are more annual arrests for marijuana possession than for all violent crimes combined. i Yet today, marijuana is the most widely used illegal drug in the U.S. and the world. More than 100 million Americans about 42 percent of American adults admit to having tried it, and over 18 million have used it in the past month.ii Decriminalization Sixteen statesiii including California, Massachusetts, Minnesota, Nebraska, Ohio, and, most recently, Connecticut and Rhode Island have enacted various forms of marijuana decriminalization. Two of these states, Colorado and Washington, have taken the additional step of legally regulating the sale and production of marijuana. Decriminalization is the reduction or elimination of criminal penalties for minor marijuana possession offenses. Many of these states have replaced criminal sanctions with the imposition of civil, fine-only

penaltiesiv; others have reduced marijuana possession from a felony to a fine-only misdemeanor or infraction.v Why is Decriminalization Not Enough? Decriminalization is certainly a step in the right direction, mitigating the excesses of marijuana prohibition to a degree. However, decriminalization falls short in many ways largely because it still lies within the framework of prohibition. Consequently, decriminalization still suffers from the inherent harms of prohibition namely, an illegal, unregulated market; the unequal application of the laws (regardless of severity of penalty) toward certain groups, especially people of color; unregulated products of unknown potency and quality; and the potential for continued arrests as part of a net-widening phenomenon.vi Under decriminalization, it is likely that marijuana possession arrests will continue, or even increase, because police may be more inclined to make arrests if they present less administrative burdens as infractions, civil offenses, or even misdemeanors (without jail), as opposed to felonies. This phenomenon occurred in California after the state reduced the penalty for marijuana possession from a felony to a misdemeanor: felony arrests declined dramatically, and overall arrests declined as well, but misdemeanor arrests rose sharply.vii A similar process of net-widening occurred in parts of Australia that decriminalized marijuana, where police officers, now relieved of the burden of taking the offender through formal booking procedures, made many more formal arrestsSince many arrestees did not pay their fines, the result was an increase in the number of individuals being incarcerated for marijuana offenses, albeit now indirectly for their failure to pay a fine.viii

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Even a misdemeanor conviction can hinder an individuals ability to succeed and participate in society by preventing him or her from obtaining employment, housing and student loans.ix Even an arrest record can be an obstacle to opportunities for otherwise lawabiding individuals. Additionally, not all decriminalization schemes protect all people from risk of arrest. In New York State, for example, carrying a small amount of marijuana in a pocket, backpack or purse is a violation, like a traffic violation, not a crime. Nonetheless, in 2011 the New York Police Department made 50,680 marijuana possession arrests more than for any other offense.x Overall, decriminalization provides only limited protections from the criminal justice system, because the police may increase the number of arrests, because the burden of arrest for them has been reducedOr the limits for possession have been set so low that many instances of possession for personal use may be wrongly classified [as trafficking or possession for distribution].xi Decriminalization will also do nothing to eliminate the lucrative underground market for marijuana. The value of marijuana produced in the U.S. is estimated to be more than $35 billion, making it the nations largest cash crop, exceeding the value of corn and wheat combined.xii This immense market is completely untaxed, a source of revenue that federal and state governments can ill-afford to neglect. Instead, prohibition ensures that this vast market enriches criminal organizations and contributes to violence, crime and corruption on a massive scale. Virtually all marijuana-related violence is a direct result of prohibition, which keeps responsible, regulated businesses out of the market. Since illegal businesses have no legitimate means to settle disputes, violence inevitably results just as it did during alcohol Prohibition. The effect has been unending bloodshed in countries like Mexico, where at least 70,000 people have been killed in prohibition-related violence in the past six years.xiii The U.N recently described Central America as one of the most violent regions in the world outside of active war zones.xiv Marijuana prohibition is a major cause of this carnage. The federal government has asserted that [M]arijuana

distribution in the United States remains the single largest source of revenue for the Mexican cartels,xv and has called the substance a cash crop that finances corruption and the carnage of violence year after year.xvi The former U.S. drug czar, John Walters, went so far as to publicly contend that more than 60 percent of cartels revenue derives from the marijuana trade amounting to some $13.8 billion.xvii Taxation and Regulation Legal regulation is not a step into the unknown we have centuries of experience in legally regulating thousands of different drugs. Legal regulation means commonsense controls marijuana wouldnt be treated like Coca-Cola, available to anyone of any age, anywhere, at any time. Under many regulatory proposals, it would be taxed and regulated in a manner similar to alcoholic beverages, with age limits, licensing controls, and other regulatory restrictions. Just as cities, counties and states vary in the way they regulate alcohol, the same could be true for marijuana. In November of 2012, residents of Colorado and Washington took the historic step of rejecting the decades-long failed policy of marijuana prohibition by deciding to permit the legal regulation of marijuana sales, cultivation and distribution for adults 21 and older. In Colorado, Amendment 64 won with 54.8 percent of the vote. In Washington State, I-502 won with 55.7 percent of the vote. The states have already begun implementing their new laws, both of which completely eliminate penalties for marijuana possession by adults. Colorados law also allows adults 21 and older to cultivate six marijuana plants. Both states determined that simply eliminating criminal penalties for possession was not enough. They are now in the process of establishing regulations for the cultivation, distribution and retail sale of marijuana to adults as well a process that will be completed toward the end of 2013. Legislators in several states have also introduced (or pledged to introduce) bills to tax and regulate marijuana. At the federal level, a bipartisan group of legislators has introduced the first bill ever to end federal marijuana prohibition. Public support for making marijuana legal has shifted dramatically in the last two decades, especially in the last few years. For the first time, a 2011 Gallup poll found that 50 percent of Americans support making

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marijuana legal, with only 46 percent opposed. Majorities of men, 18-29 year-olds, 30-49 year-olds, liberals, moderates, Independents, Democrats, and voters in Western, Midwestern and Eastern states now support legalizing marijuana. Other recent polls have found even higher levels of support. Importantly, recent polls by both Gallup and CBS News have shown that significant majorities of Americans believe that the federal government should not intervene to prevent the implementation of Colorados and Washingtons new laws. Even respondents who oppose marijuana legalization on principle nevertheless believe that the decision of whether or not to legally regulate marijuana should be left to the states to decide. Do you think the use of marijuana should be made legal or not?
% No, illegal

Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States: 2011 (2012), http://www.fbi.gov/about-us/cjis/ucr/crime-in-theu.s/2011/crime-in-the-u.s.-2011/persons-arrested/personsarrested. ii Substance Abuse and Mental Health Services Administration (SAMHSA), Office of Applied Studies. (2012). Results from the 2011 National Survey on Drug Use and Health: National findings (Substance Abuse and Mental Health Services Administration.), Table 1.24B Marijuana Use in Lifetime, Past Year, and Past Month among Persons Aged 12 or Older, by Demographic Characteristics: Percentages, 2010 and 2011, and Table 1.24A Marijuana Use in Lifetime, Past Year, and Past Month among Persons Aged 12 or Older, by Demographic Characteristics: Numbers in Thousands, 2010 and 2011."; http://www.samhsa.gov/data/NSDUH/2011SummNatFindDet Tables/NSDUHDetTabsPDFWHTML2011/2k11DetailedTabs/Web/PDFW/NS DUH-DetTabsSect1peTabs24to28-2011.pdf. [107,842,000 Americans age 12 or older report having tried marijuana in their lifetime; 18,071,000 report using it in the past month]. iii Alaska, California, Connecticut, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, Oregon and Rhode Island. iv California, Colorado, Connecticut, Maine, Massachusetts, Nebraska, New York, Oregon and Rhode Island. Alaska imposes no criminal or civil penalty for the private possession of small amounts of marijuana by adults. v Nevada, North Carolina, Minnesota, Mississippi, and Ohio. vi Peter Reuter, Marijuana Legalization: What Can be Learned from Other Countries? RAND Corporation (2010). vii Aldrich, M., Mikuriya, T., et al., Fiscal Savings In California Marijuana Law Enforcement, 1976 - 1985 Attributable to the Moscone Act of 1976 (1986). viii Reuter 9. ix See, for example, K. Babe Howell, "Broken Lives from Broken Windows: The Hidden Costs of Aggressive Order Maintenance Policing," NYU Review of Law & Social Change, 33 (2009): 371; Human Rights Watch, No Second Chance: People with Criminal Records Denied Access to Public Housing, November 18, 2004, http://www.hrw.org/reports/2004/11/17/no-second-chance; and Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 New York University Law Review 457534 (2010). x Drug Policy Alliance, $75 Million a Year: The Cost of New York City's Marijuana Possession Arrests, (March 2011), http://www.drugpolicy.org/docUploads/_75_Million_A_Year.pd f; Harry G. Levine and Deborah Peterson Small, Marijuana Arrest Crusade: Racial Bias and Police Policy, 1997- 2007, New York Civil Liberties Union, (2008); Levine, Harry. New York Citys Marijuana Arrest Crusade Continues, (2009); and Alice Speri, 2010 Marijuana Arrests Top 1978-96 Total, New York Times (February 11, 2011). xi Reuter (2010) 12. xii Gettman, Jon, Marijuana Production in the United States, The Bulletin of Cannabis Reform (December 2006). xiii E. Eduardo Castillo, Mexico Drug War: List Of Missing Raises Doubts In Mexico, Associated Press (December 22,
i

% Yes, legal
84 81 78 66 70 70 73 73 64 62 64 60 54 50 46 50

44 46 28 12 1969 15 16 1972 1973 1977 1979 1980 1985 1995 2000 2001 2003 2005 2009 2010 31 25 25 23 25 34 34 36

50 48

2011

The people of Washington and Colorado have chosen to stop wasting resources, fueling violence, and destroying lives on a failed policy. The impact of these laws is likely to be tremendous. According to the Washington State Office of Financial Management, the new law could generate as much at $1.9 billion within 5 years. According to the Colorado Center on Law and Policy, the new law could save state and local law enforcement millions of dollars and generate as much as much as $24 million annually. And according to a report by the Mexican Institute for Competiveness, marijuana legalization in Colorado and Washington could reduce profits of criminal organizations in Mexico by $2 billion or more.xviii

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2012


2012), http://www.huffingtonpost.com/2012/12/23/mexicodrug-war-missing-list_n_2355789.html. xiv United Nations, Office on Drugs and Crime, Global Study on Homicide 2011, http://www.unodc.org/unodc/en/data-andanalysis/statistics/crime/global-study-on-homicide-2011.html. xv David G. Ogden, U.S. Department of Justice, Office of the Deputy Attorney General, Memorandum for Selected United States Attorneys, Re: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, (October 19, 2009), http://blogs.justice.gov/main/archives/192. xvi Kevin L. Perkins, Assistant Director, Criminal Investigative Division, FBI; Anthony P. Placido, Assistant Administrator for Intelligence, DEA. Statement Before the U.S. Senate Caucus on International Narcotics Control, May 5, 2010. http://www.justice.gov/dea/speeches/100505_inc.pdf xvii Office of National Drug Control Policy, National Drug Control Strategy, Washington, D.C., February 2006. https://www.ncjrs.gov/pdffiles1/ondcp/212940.pdf; Corchado, Alfredo, Drug Czar Says U.S. Use Fueling Mexico Violence, Dallas Morning News, February 22, 2008. http://www.banderasnews.com/0802/edat-mexviolence.htm xviii Instituto Mexicano para la Competitividad (IMCO), Posible impacto de la legalizacin de la marihuana en Estados Unidos, 2012, http://imco.org.mx/en/temas/estado_de_derecho_y_segurida d/posible_impacto_de_la_legalizacion_de_la_marihuana_en_ estados_unidos/.

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