Marijuana Legalization: A Primer
by Richard M. Evans

       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.)

       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.