The Trump administration is cracking down on marijuana, using uncertainty and fear.
Early this month, Attorney General Jeff Sessions revoked the federal guidelines that let states choose to legalize marijuana without federal interference.
Now, it's up to individual federal prosecutors to decide whether to go after people and companies in states where weed is legal under state law.
Why is it important?
Marijuana has been illegal under U.S. federal law since the Marijuana Tax Act of 1934, which prohibited its sale and distribution. More recently, marijuana regulation played a large role in the "war on drugs," which began in the 1970's—and in turn contributed to the ballooning U.S. prison population. Under the Trump administration, the debates continue to escalate.
Americans are quickly warming to legalization: 64% believe the drug should be made legal, up from only a third in 2001 and half in 2011. The trajectory closely mirrors changing beliefs about gay marriage over the same period of time.
Should the federal government allow states to legalize weed without interference?
If we want marijuana to be legal across the country and not to have federal prosecutors pursue these cases, the 64% of Americans who support legalization can take their thoughts to Congress. For now, the drug is illegal under federal law—in fact, it's a schedule 1 drug, the highest category with the strictest criminal penalties. The federal government is obligated to enforce this reality in some way.
That being said, the government should also recognize the unique circumstances of each state, their differing laws on the subject and particular populations. Allowing federal prosecutors to use their discretion is the right solution for a challenging and nuanced problem. We recognize the benefits of this kind of solution in other areas too: Federal judges can use their discretion in imposing sentences, for example.
Marijuana is illegal for good reason. Legalizing—and therefore commercializing—recreational marijuana could lead to increased use and abuse, and create an industry with incentives that work against the public interest. And a recreational marijuana industry has inherently perverse incentives: dependent "problem users" are their best customers. An industry comparable to "Big Tobacco," with a psychoactive drug with unknown health risks (like lower cognitive function and car accidents) would be extremely dangerous. If we want to have this debate as a country, we should, but we have not yet finished it on a national level.
Sessions' decision is having the effect we would want: It is reminding people that an illegal drug is, in fact, illegal. Domestic marijuana stocks lost 25% of their value after the announcement, though they rose again slightly over the last few days.
You don't need to like the Trump administration nor Attorney General Sessions to appreciate the need to take this stance. As Sessions put it, "it is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission." Now, federal prosecutors will be able "to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."
Using federal power to stop states from choosing to legalize marijuana is a mistake. Doing it by creating chaos is worse.
In 2013, the Justice Department issued what's known as the Cole memo (after then-Attorney General James Cole), which required states to follow specific rules in order for the federal government to allow them to make their own decisions about legalizing marijuana. Those rules included preventing the distribution of marijuana to minors, preventing the revenue from funding gangs and cartels, and preventing the drug from being taken across state lines.
The memo brought sense and predictability to the market, to state law, and to people's lives. It stopped the random Bush-era raids based on conflicting state and federal guidelines. It allowed states to make sensible laws and their citizens to know that they could follow those laws.
Even if individual federal prosecutors do not choose to crack down on marijuana in their states, the confusion caused by Session's decision will cause real economic, social and medical harm.
It will cost us jobs, state tax revenue, and personal income by wrecking havoc on a market that is expected to grow to $50 billion in the next ten years.
It will increase race inequalities. Police make one marijuana-related arrest every 42 seconds. That's nearly half of U.S. drug arrests. And those arrests are 3.7 times more likely to affect black Americans than white, though both use the drug at approximately the same rates.
It will stop progress on health issues. After Colorado legalized marijuana in 2014, teen marijuana use in the state fell to its lowest level in nearly a decade. The medical community agrees that marijuana is significantly less dangerous than legal drugs like alcohol, tobacco, and some painkillers. Legalizing recreational use at the federal level would remove barriers to research.
Sessions' decision is also politically unwise. It's not just Americans at large that support legalization—51% of Republicans said they support it, a whopping 9-point increase from last year alone. Prominent Republicans like Senator Cory Gardner vocally oppose the move, saying it violates states' rights and harms citizens. They're right.
- The Obama Justice Department's original memo in 2013
"As several states enacted laws relating to the use of marijuana for medical purposes, the Department in recent years has focused its efforts on certain enforcement priorities that are particularly important to the federal government:
Preventing the distribution of marijuana to minors;
Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
Preventing the diversion of marijuana from states where it is legal under state law in some form to other states..."
- The Trump Justice Department's decision this January
- "Today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."