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The history of marijuana
laws in the United States, in a nutshell, is that until the early
part of the last century marijuana was legal everywhere. First
appearing in southwestern states, prohibition laws culminated in
the passage, by Congress in 1937, of the Marihuana Tax Act. That “revenue”
measure soon morphed into federal criminal laws against possession,
cultivation and commerce. In not too many years, all states adopted
similar laws.
Though widely used around
the globe for centuries, marijuana was foreign to the U.S. middle class until the cultural revolution of
the 1960s. As it burst upon the youth scene, President Nixon launched
the drug war (although he apparently did not utter those two words).
Since then, over twenty million citizens have been arrested on marijuana
charges. Ninety percent of those arrests have been for possession of
small amounts. Despite nearly a million arrests every year, marijuana
remains ubiquitous.
The term “prohibition” is
used to describe the marijuana law prevailing since 1937, whereby
cultivation, commerce or possession of marijuana by anyone, anywhere,
subjects him or her to criminal penalties. It conjures up images
of the period in American history known as Prohibition, 1920-33,
when commerce in (but not possession of) beverage alcohol
was criminalized. Unlike that era, the period of marijuana prohibition
(1937-present) has not yet earned a capital P.
The issue facing policymakers
and voters today is whether marijuana prohibition should be perpetuated
or replaced. That debate, and this website, is premised on the
painful truths that prohibition has not only failed to eradicate
marijuana use from within our borders, but has also managed to
exacerbate the very few problems associated with the substance.
If there is any public official
who believes that investing more taxpayer dollars in prohibition
enforcement will accomplish some level of success in the struggle
against marijuana, he or she must, in all honesty, step forward
and explain (1) how many more people will have to be arrested, prosecuted,
convicted and punished in order to achieve that level of success,
(2) how much will that cost taxpayers, and (3) where the money will
come from. Absent any good answers to those questions, a productive
discussion necessarily turns from whether to replace prohibition
to how to replace it.
A variety of options are
talked about. About the only thing that all the legalization
scenarios have in common is that they are alternatives to arrest
and punishment.
Some speak of “decriminalization,”
where personal use of marijuana would not be punishable, but commerce
remains criminal. Decriminalization protects consumers from
arrest and the permanent stain of a criminal record, but keeps a
heavy burden on police and the courts to stamp out “trafficking.”
(New
York solved that problem in 1923 by repealing its alcohol
prohibition laws, ceding the burden of enforcement
to federal authorities. New York City consequently
avoided the level of prohibition-related crime and violence that
plagued other large cities, like Chicago and Detroit. Massachusetts dd the same thing in 1930 by voter initiative, followed by eleven more states in 1932.)
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Some suggest
a plan sometimes called the “tomato model,” where cannabis (the
botanically correct term for marijuana) would be treated like any
other agricultural commodity, with controls over purity and packaging,
and subjected to ordinary sale and income taxes. Under what might
be called the medical tomato model, California is said to collect
some $20 million annually from sales taxes on medical marijuana alone.
As economic exigencies demand
that governments exploit every opportunity for every possible
source of revenue, the cannabis legalization option currently getting the
most attention is what is called “regulation and taxation.” Under
such a system, cannabis commerce would be regulated and taxed similarly to alcohol, with controls
over commercial cultivation, processing, distribution and sale,
and with a hefty excise tax attached. As to who would be permitted
to grow, process, distribute and
sell, and under what circumstances, all of those issues are up in
the air, yet to be examined and debated.
Abundant questions face policymakers.
How deeply should which agencies of what governments be involved
in a legal cannabis market? Should government retain a monopoly,
like state lotteries, or exercise regulatory control, as with
casinos? Will the tax be collected by the federal government or
the states, or both? How can the level of tax be set to produce
the most revenue, without encouraging a black market? How about
home cultivation? In what form should cannabis be sold? To and by whom?
Perhaps the most important
question is: how does a regulatory system best impose on cannabis
consumers a profound sense of responsibility for their own conduct?
No state, acting alone, may
implement a system of taxation and regulation until federal law is modified to allow
it. States can, however, follow New York’s 1923 lead and repeal their
prohibition laws, thus shifting the burden of enforcement to federal
authorities. That would surely get the attention of Congress.
In a recent op-ed
in the Denver Post,, the writer Ed Quillen sportingly suggested that
Colorado implement a tax and regulate system, and send the revienue first
to the state attorney general's office to provide a vigorous defense to
anyone obeying state law but violating federal law, and thus wear down the
Feds. That would certainly bring attention as well.
Decades of whispered grumblings
about the wisdom and efficacy of prohibition are rapidly giving
way to a serious—really serious, without winks, smirks or puns—public
discussion about how to replace it. Those who consider themselves
leaders in government and the media have the obligation to either
show how prohibition can be made to work, or join in the exploration
of alternatives.
No living person is responsible
for the marijuana prohibition laws. They were conceived three generations
ago in a cultural and racial climate very different from our
own, and very different from that to which we aspire. They are
an obsolete legacy of the past that we don't need and can't afford.
2.26.11
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