CHAPTER 11
LEGALIZATION

Drug abuse existed long before the Nixon administration declared a "war on drugs" in the 1970s. More than thirty years later this "war" continues with no end in sight.

• Drug arrests increased from 580,900 in 1980 to 1.7 million in 2003; in 1984 they represented 6.1% of all arrests, while in 2003 they were 12.3% (Crime in the United States, 2003, Washington, DC: FBI).
• In 2003, 20% of state prisoners were held for drug offenses, up from 6.5% in 1980, according to the U.S. Department of Justice's Bureau of Justice Statistics.
• Annual expenditures to fight the war just at the federal level have exceeded $10 billion a year every year since 2000, and now exceed $12 billion, according to the Office of National Drug Control Policy. Judicial dockets have become crowded and prisons are operating above capacity.
• Heroin in the 1970s came primarily from Asia; now it comes from Mexico and Colombia in the western hemisphere. Synthetic drugs have multiplied, and one of the most potent, methamphetamine, is produced in every state.
• The population using drugs has been growing in recent years in every age group rather than declining.

Not surprisingly, the war on drugs, and/or the national policy under which it has been fought by administrations of both major parties, have many critics. One major alternative to the "war" is legalization. The issue, however, is inherently complex and controversial, in part because, as will be shown, a preponderant majority of the public opposes even the mildest form of legalization, the legalization of marijuana.

AN OUTLINE OF THE ISSUES

Marijuana

In the United States legalization of drugs almost invariably refers to the legalization of marijuana rather than, for instance, heroin and cocaine. Use of "hard drugs" like these is relatively limited, and most Americans consider them to be highly addictive and damaging to one's physical and mental health. Marijuana's situation is different. According to the Substance Abuse and Mental Health Services Administration (SAMHSA), in 2003 more than three-quarters of all current drug users (75.2%) were using marijuana, and more than half of all current drug users used only marijuana and no other drugs. "Current drug use" is defined by SAMHSA as drug use in the thirty days before a person participated in SAMHSA's annual Household Survey of Drug Abuse. Some studies have suggested significant harm from marijuana use, including effects on the heart, lungs, brain, and social and learning capabilities. Others have found little or no harm from moderate marijuana use. Regardless of what the research says, marijuana is generally thought of as a relatively mild drug, an opinion supported by government initiatives in Canada, where marijuana possession has been decriminalized in many localities, or in the Netherlands, where marijuana sales are tolerated in "coffee shops."

The Constituency

Based on SAMHSA data from its 2003 National Survey, 14.6 million people (age twelve and older) had used marijuana or hashish within a month of the agency's survey; twenty-five million had used these drugs in the past year; and 96.6 million people had smoked marijuana or hashish at some point in their lives. The increase in lifetime users between 2002 and 2003 alone was 1.67 million people.

Not all of these current and past users can be assumed to favor legalization, but Gallup polling data for selected years from 1969 to 2001 show public opinion increasingly favoring the legalization of marijuana. (See Table 11.1.) In 1969, 84% of the public opposed legalization, and 12% favored it. By 2001 those opposed had shrunk to 62% of the public, while 34% were in favor. In that year, 34% of the adult population (eighteen and older) represented 77.4 million people. Trends, if they continue, suggest that by about 2010 those who favor legalization of marijuana will be in the majority. Gallup surveys of public opinion regarding decriminalization of medical marijuana use when prescribed by a physician were 73% in favor in 1999.

It is with the support of this population that a number of initiatives and referenda attempting to legalize marijuana for medical purposes or to decriminalize possession of modest quantities have appeared on state ballots (to be discussed in more detail below). The pro-legalization constituencies express themselves through activist organizations, e.g., Marijuana Policy Project (MPP), The National Organization for the Reform of Marijuana Laws (NORML), Hemp Evolution, and state-level organizations. Some legal reform organizations, notably the American Civil Liberties Union (ACLU), advocate reforms. A number of groups specialize in advocacy for the medical uses of marijuana. By contrast there are no large organizations that promote the legalization of drugs like cocaine and heroin, showing that "legalization" really refers to marijuana legalization.

A Sliding Scale

Many of those who advocate legalization wish to reform a national policy they see as using the criminal justice system to solve a public health problem. Instead of arresting and incarcerating people for drug possession, authorities should send them to treatment. Instead of eradicating coca crops in Colombia, the government should deal with socioeconomic problems or educational deficits that lead adults and youths to turn to drugs. Another viewpoint comes from those who advocate legalization on libertarian or constitutional grounds: the government has no right telling adults what to consume. These two positions result in a range of approaches on a sliding scale.

DECRIMINALIZATION.

A basic first step, advocated by the ACLU, for instance, is decriminalization (Ira Glasser, Executive Director, ACLU, in Testimony before the Criminal Justice, Drug Policy and Human Resources Subcommittee of the House Government Reform Committee, June 16, 1999). The ACLU argued that current drug policy produces harm in various forms—harm to individuals who must get drugs in

dangerous circumstances and suffer from abuse with-out treatment, harm to individuals who cannot use drugs in medical contexts, and harm to society by incarcerating large numbers of people. Criminalization of drug use, according to the ACLU, has curbed neither drug use nor the availability of drugs but has, instead, eroded liberties and imposed unnecessary costs on society.

REGULATORY MANAGEMENT.

Pharmaceuticals are strictly regulated by requiring doctors to prescribe them. Legal recreational drugs (tobacco and alcohol) are subject to regulation as well but are not prohibited; their mere possession will not land someone in jail. One expression of drug legalization is the call to substitute regulatory management for prohibition in drug use, providing the public limited access to some drugs. The legalization of syringe exchange programs would be an example of such regulatory approaches—as might be provision of heroin to addicts under controlled conditions. Those who advocate a regulatory system (e.g., the ACLU) stop well short of what an unbridled free-market approach might produce.

COMMERCIALIZATION.

Opponents of legalization envision an environment in which brightly packed and machine-rolled joints would be sold in drug stores alongside cigarettes, with the result that lung cancer rates, slowly decreasing as tobacco use declines, would take off again. Almost no one advocates replacing a system in which marijuana is prohibited with one where it is promoted on billboards. But such an outcome is at least possible under some implementations of drug legalization.

Institutionalized Opposition

According to Gallup data cited above, about six out of ten people were against legalization of marijuana in 2001. The majority's views are expressed in a massive institutional system that has been fighting the war on drugs with billions of dollars yearly for many decades at home and abroad.

Somewhat more than half of all federal expenditures on drug control are dedicated to controlling the trade in drugs, and substantially more than half of all drug-related expenditures within the criminal justice system are included. Federal funds on drug control are expended by dozens of agencies; these funds flow to states, then to lower levels of government. The war on drugs has become a well-funded institutional habit, not likely to yield rapidly to a slowly changing public mood.

ARGUMENTS PRO AND CON

For Legalization

Most of those who favor legalization in some form (decriminalization, regulation, for medical use) use two arguments in combination. The first is that an approach to drugs based on prohibition and criminalization does not work, produces excessive rates of incarceration, and costs a lot of money that could be more productively spent on treatment and prevention. The second is that drug use is an activity arbitrarily called a crime. It is imposed by law on some drugs and not on others, and can be seen as criminal at one time but perhaps not at another. Murder, rape, and robbery have always been considered inherently criminal acts, but drug use is just a consumption of substances; its control is arbitrary and follows fashions. Alcohol consumption was once prohibited but is now legal. In the early 1900s opiates were sold in pharmacies and Coca-Cola contained small quantities of cocaine.

While some who advocate legalization of drugs come at the issue from a libertarian perspective—the belief that the government has no business telling people what they may and may not ingest—most proponents do not deny that many drugs can be harmful (though many dispute the degree); they merely point out that tobacco use and alcohol abuse are harmful too—more harmful and/or more addictive in fact than some drugs that are illegal. The policy they recommend is based on educational and public health approaches also used vis-à-vis tobacco and alcohol. A greater harm is imposed on society by prohibiting such substances, as evidenced by the consequence of the Prohibition period of the early twentieth century, during which alcohol was banned and crime, racketeering, and homicide rates soared.

HARM REDUCTION.

The general policy as advocated by most mainstream proponents of legalization is sometimes summed up in the phrase "harm reduction." The ACLU's Ira Glasser outlines the issues, in testimony cited above, concisely in three paragraphs:

There are two kinds of harms associated with the use of drugs. One set of harms may be caused by the drugs themselves, and varies widely, depending on the particular drug, its potency, its purity, its dosage, and the circumstances and frequency of its use. Distinctions must be made between the harms caused by heavy, compulsive use (e.g., alcoholism) and occasional, controlled use (e.g., a glass of wine each night with dinner). Distinctions must also be made between medical use (e.g., heavy dosages of morphine prescribed by doctors over a two-week period in a hospital setting or methadone prescribed daily on an outpatient basis as maintenance) and uncontrolled use (e.g., by addicts on the street using unregulated heroin and unclean needles). And distinctions must be made as well between relatively benign drugs (e.g., marijuana) and drugs with more extreme short-term effects (e.g., LSD) or more severe long-term effects (e.g., nicotine when delivered by smoking tobacco).

The second kind of harm associated with the use of drugs is the harm caused not by the drugs themselves but by dysfunctional laws designed to control the availability of the drug. These harms include massive incarceration, much of it racially disparate, and the violation of a wide range of constitutional rights so severe that it has led one Supreme Court justice to speak of a "drug exception" to the Constitution. Dysfunctional laws have also led to reduced availability of treatment by those who desire it (e.g., methadone maintenance), as well as a number of harms created by uncontrolled and unregulated illegal markets (e.g., untaxed and exaggerated subsidies for organized criminals; street crime caused by the settling of commercial disputes with automatic weapons; unregulated dosages and impurities; unclean needles and the spread of disease, etc.)

All laws that address the issue of drugs ought to be evaluated by assessing whether or not they reduce or enhance such harms.

BENEFITS.

Many proponents see the chief benefits of legalization in decreased crime from trafficking, gang wars, and crimes committed to obtain drugs, lower incarceration rates and associated cost savings, and more funds available for treatment from savings and from taxes on legally distributed drugs. Legalization of drugs is also seen as making available marijuana in medical applications, such as relieving the suffering of cancer and AIDS patients.

Against Legalization

The government's case against legalization is summarized in a brochure published by the Drug Enforcement Administration in 2003 entitled Speaking Out against Drug Legalization. The ten arguments presented by the Drug Enforcement Administration (DEA) are shown in Table 11.2.

The DEA's case is also organized around the concept of harm. Drugs are illegal because they cause harm. Legalization of drugs—even if only marijuana—will increase the harm already suffered by the drug-using public by spreading use to ever larger numbers of people. The agency cites Alaska's experience. Marijuana was legalized there in the 1970s and the DEA states that the Alaskan teenage consumption of marijuana at more than twice the rate of teenagers elsewhere was a direct consequence of the Alaska Supreme Court ruling. In 1990 there was a voter initiative that criminalized any possession of marijuana.

Yet despite the DEA's opinion, on August 29, 2003, a state appellate court affirmed the right of Alaskans to possess a small amount of marijuana in their homes; anything under four ounces might be deemed "for personal use." Anything over that amount is still illegal, since it is assumed the person is dealing drugs.

The DEA points to National Institute on Drug Abuse (NIDA) studies that show that smoking a marijuana joint introduces four times as much tar into the lungs as a filtered cigarette. The agency makes the point that drugs are much more addictive than alcohol and invites the public to contemplate a situation in which commercial interests might be enabled to promote the sale of presently illegal substances.

The DEA counters the "criminalization" charge by pointing out that only 5% of drug offenders in federal prisons and 27% of drug offenders in state prisons are held for possession, the rest for trafficking. The agency points out that even these numbers are deceptive because those imprisoned for possession are usually imprisoned after repeated offenses, and many of those serving a sentence for possession were arrested for trafficking but reached plea bargains permitting them to plead guilty to the lesser offense of possession.

Would legalization reduce crime? The DEA does not believe it would. Under a regulated drug-use system, age restrictions would apply. A criminal enterprise would continue to supply those under age. If marijuana were legalized, trade in heroin and cocaine would continue. If all three of the major drugs were permitted to be sold legally, other substances, like PCP and methamphetamine, would still support a criminal trade. The DEA does not envision that a black market in drugs could be eliminated entirely, because health authorities would never permit very potent drugs to be sold freely on the open market.

For all of these reasons, the DEA advocates the continuation of a balanced approach to the control of drugs including prevention, enforcement, and treatment.

Contradictions and Inconsistencies

Both proponents and opponents of legalization produce good arguments for their cases, but contradictions and inconsistencies are present in both presentations, suggesting that the ultimate evolution of this issue will turn on political, i.e., pragmatic, issues.

Proponents of legalization sometimes find the question of where to draw the legal line problematic. How harmful must a drug be before it should be made illegal? In an environment where public pressures are mounting against the use of tobacco, legalization of marijuana has a contradictory aspect. Funds expended now on incarcerating drug offenders may have to be expended in some future time on public health programs to treat ills caused by newly legalized drugs, though whether or how much the use of such drugs as marijuana would increase if it were legal remains entirely unknown.

Opponents of legalization fail to coherently address the question of alcohol and tobacco. One must engage in serious logical contortions to justify their legality when consumptions of comparably harmful substances can yield lengthy prison sentences.

Arguments claiming that the war on drugs is succeeding because drug use is down as measured against some point in the past ignore the fact that drug use is a cyclical phenomenon with ebbs and flows. In Speaking Out, for instance, the DEA presents a chart comparing overall drug use between 1979 and 2001, showing a decline in current users from 25.4 to 15.9 million people. In that period, however, current drug use first declined to twelve million persons in 1992 and then rose again to 15.9 million by 2001 while the same policies were being pursued. If the DEA had used 1992 as its base year, it would have had to argue that its programs were not working.

MEDICAL MARIJUANA

Before the passage of the Marijuana Tax Act of 1937, which effectively prohibited the sale of marijuana, more than twenty pharmaceuticals were on the market with marijuana as an ingredient (Medical Marijuana Briefing Paper—2005, Washington, DC: Marijuana Policy Project, http://www.mpp.org/pdf/mmjbrief.pdf). In the 1970s marijuana's medicinal properties were rediscovered by recreational users. In the November 1996 elections, California and Arizona voters approved referenda legalizing the possession of marijuana and other drugs for medical purposes. California Proposition 215, enacted as The Compassionate Use Act of 1996, permitted patients and primary caregivers to possess and/or cultivate marijuana without fear of prosecution under state laws. The act permitted physicians to recommend (not to prescribe) the use of marijuana as a treatment for cancer, AIDS, anorexia, chronic pain, glaucoma, arthritis, migraine headaches, "or any other illness for which marijuana provides relief." More than half (56%) of California voters supported Proposition 215.

In neighboring Arizona, 65% of the voters supported Proposition 200, enacted as the Drug Medicalization, Prevention, and Control Act. It provided that, in the case of medical necessity, marijuana and other drugs (including heroin and LSD) could be used in medical treatment. Two doctors would have to prescribe the use of these drugs. The law also called for probation and treatment rather than incarceration for first- and second-time non-violent drug offenders. The Arizona legislature amended the measure, saying that voters had committed a grave error, and sent it back to the voters. In 1998 Proposition 200 again passed, this time with a 57% majority.

The Justice Department brought suit in 1998 against the Oakland Cannabis Buyers' Club, which supplied marijuana for medical purposes. The government argued that the club's activities, even if legal under California law, violated federal law, specifically the Controlled Substances Act. The case reached the Supreme Court in 2001. The Court ruled in favor of the federal government and struck down state laws legalizing the use of marijuana for purposes of medical necessity, arguing that the intention of Congress in classifying marijuana as a Schedule I substance was unambiguously clear. Schedule I drugs have, by definition, "no currently accepted medical use in treatment in the United States," have "a high potential for abuse," and have "a lack of accepted safety for use under medical supervision." (United States v. Oakland Cannabis Buyers' Cooperative et al., 532 U.S. 483, decided May 14, 2001.)

The high court's actions are not the final word on medical uses of marijuana, especially because the Court's ruling was narrowly cast around the classification of marijuana as a Schedule I drug. Future amendments of the Controlled Substances Act could well remove marijuana from Schedule I and place it on Schedule II with morphine, cocaine, and methamphetamine. Schedule II states that "the drug or other substance [on the schedule] has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions."

The U.S. Supreme Court issued another relevant ruling in June of 2005, overturning a 2003 federal appeals court decision that shielded California's Compassionate Use Act, the medical marijuana initiative adopted by California voters nine years earlier. The Supreme Court's ruling in this case reaffirmed the ability of Congress to prohibit and prosecute for the possession and use of marijuana even in states (eleven as of the decision) that allow it under state law. As with the earlier Supreme Court decisions, this ruling was not the final word on medical marijuana. Other challenges to the application of federal drug laws may still be issued.

Medical Opinion

The medicinal value of THC (tetrahydrocannibinol), the active ingredient in marijuana, has long been known to the medical community. The drug has been shown to alleviate the nausea and vomiting caused by chemotherapy used to treat many forms of cancer. Marijuana has also been found useful in alleviating pressure on the eye in glaucoma patients. The drug has also been found effective in helping to fight the physical wasting that usually accompanies AIDS. AIDS patients lose their appetites and can slowly waste away because they do not eat. Marijuana has been found effective in restoring the appetites of some AIDS patients. Many of the newer AIDS remedies must be taken on a full stomach. Other studies, in contrast, have found that marijuana suppresses the immune system and contains a number of lung-damaging chemicals.

NIDA GREW IT.

During the 1970s and 1980s the National Institute of Drug Abuse grew marijuana in Mississippi to supply the drug to experimental research programs in six states. Such action is expressly permitted under the Controlled Substances Act. In 1986 the Reagan administration, feeling increasingly uncomfortable with this program and concerned that the growing AIDS epidemic might lead to increased demand for the medical legalization of marijuana, accelerated the approval of Marinol, a drug containing a synthetic form of THC. The state experimental programs were closed.

MARINOL.

Opponents of the medical legalization of marijuana often point to Marinol as a superior alternative. However, many patients do not respond to Marinol; the determination of the right dose is variable from patient to patient. Nonresponding patients claim that smoking marijuana allows them to control the dosage they get. Marijuana has been used, illegally, of course, by an unknown number of cancer and AIDS patients on the recommendation of doctors.

NEW ENGLAND JOURNAL OF MEDICINE.

In 1997 the highly respected New England Journal of Medicine came out in favor of legalizing marijuana for medical use. Jerome P. Kassirer, the journal's editor, published an editorial entitled "Federal Foolishness and Marijuana" in which he wrote: "I believe that a federal policy that prohibits physicians from alleviating suffering by prescribing marijuana is misguided, heavy-handed and inhumane" (vol. 336, January 30, 1997). Dr. Kassirer acknowledged that marijuana use could cause long-term adverse effects and could even lead to serious addiction, but he felt that these risks were irrelevant when the drug was used to combat uncontrollable nausea and pain in patients critically ill with cancer, AIDS, and other serious diseases.

The editorial mentioned that dronabinol (the generic name of Marinol) contains THC, but this legal drug is not widely prescribed because its therapeutic dosing is difficult to determine. "By contrast," wrote Kassirer, "smoking marijuana produces a rapid increase in the blood level of the active ingredients and is thus more likely to be therapeutic." He makes the point that doctors can prescribe morphine and other very strong drugs that can cause death, but with marijuana there is no immediate risk of death.

THE INSTITUTE OF MEDICINE STUDY.

With the California and Arizona medical legalization propositions as background, General Barry McCaffrey, the Clinton administration's drug czar, asked the Institute of Medicine (IOM), a private organization that advises the government on medical matters, to review the scientific evidence on marijuana in order to assess the potential health benefits and risks of marijuana and its constituent cannabinoids. The review began in August 1997 and culminated in March 1999 with a report entitled Marijuana and Medicine: Assessing the Science Base (Janet E. Joy, Stanley J. Watson, Jr., and John A. Benson, Jr., eds., Washington, DC: National Academy Press, 1999).

Cannabinoids, a group of compounds found in marijuana, contain THC, the primary psychoactive ingredient in marijuana. The IOM report drew the following general conclusions regarding cannabinoids:

• Cannabinoids likely have a natural role in pain modulation, control of movement, and memory.
• The natural role of cannabinoids in immune systems is likely multifaceted and remains unclear.
• The brain develops tolerance to cannabinoids.
• Animal research demonstrates the potential for dependence, but this potential is observed under a narrower range of conditions than with benzodiazepines, opiates, cocaine, or nicotine.
• Withdrawal symptoms can be observed in animals but appear mild compared with those of opiates or benzodiazepines such as diazepam (Valium).

The IOM report concluded that "the future of cannabinoid drugs lies not in smoked marijuana, but in chemically defined drugs that act on the cannabinoid systems that are a natural component of human physiology. Until such drugs can be developed and made available for medical use, the report recommends interim solutions."

John Benson and Stanley Watson, the report's principal investigators, determined that marijuana's effects are limited to symptom relief and that, for most symptoms, more effective drugs already exist. However, for patients who do not respond well to standard medications, cannabinoids seem to hold potential for treating pain, chemotherapy-induced nausea and vomiting, and the poor appetite and wasting caused by AIDS and advanced cancer.

The report noted that medical use of marijuana is not without risk. The primary negative effect is diminished control over movement (psychomotor performance). In some cases users may experience unpleasant emotional states or feelings. In addition, the usefulness of medical marijuana is limited by the harmful effects of smoking, which can increase a person's risk of cancer, lung damage, and problems (such as low birth weight) with pregnancies. Therefore, the report concluded, smoking marijuana should be recommended only for terminally ill patients or those with debilitating symptoms who do not respond to approved medications.

The report recommended that patients with no alternative to smoking marijuana be allowed to use it on a short-term, experimental basis. Both physical and psychological effects should be closely monitored and documented under medical supervision. Clinical trials of marijuana should be carried out parallel with the development of new delivery systems, such as inhalers, that are safe, fast-acting, and reliable but that do not involve inhaling harmful smoke. Cannabinoid compounds that are produced under controlled laboratory conditions are preferable to plant products because they deliver a consistent dose.

Data collected in the review did not support the contention that marijuana should be used to treat glaucoma. Though smoked marijuana can reduce some of the eye pressure related to glaucoma, it provides only short-term relief that does not outweigh the hazards associated with long-term use of the drug. Also, with the exception of painful muscle spasms in multiple sclerosis, there is little evidence of marijuana's potential for treating migraines or movement disorders like Parkinson's disease or Huntington's disease.

INDUSTRIAL HEMP

Industrial hemp and marijuana both come from the Cannabis sativa plant, but while marijuana can contain THC levels of 3 to 15%, cannabis plants grown for industrial hemp contain less than 1% of THC. Industrial hemp can be used to make many products, including rope, textiles, plastics, paper products, and oil.

U.S. law bans the cultivation of hemp but permits the sale of hemp products. From only a few million dollars in the early 1990s, global hemp sales reached $75 million in 1997. According to the Hemp Industries Association, sales of hemp products were about $250 million in 2004 and were expected to reach $350 million in 2005, largely on the strength of increased demand for hemp-based food products. Many agree with David Monson, a farmer and state legislator in North Dakota, who said, "We in North Dakota believe this [hemp] is a legitimate crop that can make us some money, help the environment, and maybe save some family farms" (U.S. News & World Report, March 8, 1999). Growing hemp is legal in Germany, France, Spain, and Britain. Romania is the largest commercial hemp producer in Europe.

The changing economic fortunes of many of the nation's farmers have forced them to look to new alternatives. An acre of hemp can earn more than an acre of wheat, soybeans, or barley in some states—but cannot compete with tomatoes, potatoes, or tobacco. In 1999 the Virginia legislature approved the "controlled, experimental" cultivation of hemp. By 2001 Arkansas, California, Hawaii, Illinois, Maryland, Minnesota, Montana, North Dakota, Vermont, and Virginia had all passed legislation supporting either research into or cultivation of hemp, and several others had considered but rejected such proposals.

The DEA opposes the cultivation of hemp and has indicated that it will not register or permit it. The DEA indicates that it is hard to distinguish between a field of legitimate hemp and one of illegal cannabis. Since laboratory testing is needed to absolutely determine the difference, this would certainly slow down the process of fighting drugs. Finally, the DEA fears that legalizing hemp may be the first step on the way to legalizing marijuana.