In an essay in The Atlantic arguing that America is not a democracy─that is, that “public policy does not reflect the preferences of the majority of Americans”─the first example given is that, if it were, “Marijuana would be legal.”
If you disregard the fact that federal law still considers marijuana to be a dangerously addictive substance with no safe uses or medical benefits, medicinal cannabis is legal in more than half the nation: 29 states plus the District of Columbia.
Recreational use is legal in nine of those (plus DC), soon to be 10 when Vermont’s first-in-the-nation legislatively passed recreational cannabis law goes into effect on July 1.
Most of the marijuana legalization laws were passed by ballot initiative, a type of direct democracy that state legislatures and governors seem to hate. Even when they agree with the proposal, they’d rather do it themselves, lest the populace should think and act on its own.
When Marijuana Became Illegal
Marijuana was truly and completely banned with the adoption of the United Nations Single Convention on Narcotic Drugs of 1961, the Controlled Substances Act of 1970 (CSA), and the UN’s Convention on Psychotropic Substances of 1971, but the process began decade earlier.
Although marijuana was used in medicines in the US from the late 19th century through 1942, local laws in 29 states had already outlawed it by 1931. The Marihuana Tax Act of 1937 practically banned cannabis by making it too expensive, while the Boggs Act of 1952 and the Narcotics Control Act of 1956 established mandatory sentences for marijuana and other drug use.
The CSA established five “schedules” for controlled substances, with Schedule I representing the most irredeemable─”a high potential for abuse,” “no currently accepted medical use,” and no “accepted safety for use,” even “under medical supervision” ─and Schedule V the most benign.
(Alcohol and tobacco, two deadlier and more addictive substances, aren’t included in the CSA, though alcohol rehab and smoking cessation programs are much more needed than marijuana rehab.)
Marijuana is on Schedule I, along with heroin and LSD, while many of the most destructive and addictive drugs─including some contributing to the opioid epidemic─are on Schedule II (cocaine, the super-opioid fentanyl) or III (oxycodone, hydrocodone).
Why Marijuana Became Illegal
Marijuana─which has never caused a single overdose death, may not be physically addictive, and arguably has many potential medical benefits ─likely wound up on Schedule I due to politics. Journalist Dan Baum claims that in 1994 John Ehrlichman, President Richard Nixon’s Chief Domestic Advisor, said that marijuana was included to “disrupt” the leftist antiwar hippies.
The reason behind the criminalization of marijuana in the early 20th century may have been, in part at least, because of Mexican immigrants, some of whom smoked marijuana recreationally, and about what the drug might cause them to do. The name “marijuana” (cannabis had been used before) may have been chosen in an attempt to emphasize that otherness.
How Marijuana is Becoming Legal
Because the US government is a signatory to the UN treaties outlawing marijuana─largely at the behest of the US government─and other drugs, it is difficult for the feds to change marijuana’s status legally or politically, but the states don’t have that problem.
*A generation of casual users─who, by and large, haven’t suffered the kinds of infirmities warned of in films such as Marihuana: Weed with Roots in Hell (1936) and Reefer Madness (1938)─wants marijuana legalized.
Apart from knowing people’s lives are ruined for nonviolent marijuana-related offenses, these casual users also may realize how much money could be saved by not arresting, prosecuting and imprisoning them.
The legislatures and executives the People elected still resist the idea, so the People are going around their representatives through voter initiatives. Since the most gung-ho law enforcement politicians also tend to favor limiting federal control in favor of states’ rights, they are in a tough position.
In 1996, California became the first state post-CSA to legalize the medical use of marijuana. Sixteen years later the number had grown to 18 states (plus the District of Columbia), two of which also legalized recreational marijuana. By 2015, it was 23 states, plus four recreational (plus the District of Columbia).
The Tipping Point?
In 2016, along with the red wave that elected a businessman/TV star/outsider to the White House, voters in seven states passed marijuana legalization initiatives. The number of states allowing medical marijuana jumped past the 50 percent mark─28─and the number allowing recreational marijuana doubled to eight.
It seemed like a tipping point─or what a neoliberal think tank calls the Tide Effect─especially since on Tuesday, Canada under Prime Minister Justin Trudeau has now made marijuana fully legal.
Legalization has momentum.
This year, at least another four states seem certain to have marijuana legalization proposals on the ballot, with another three possible. Fear of direct democracy has led some opponents to try to disrupt the process. It seems to have been in vain. The people will decide.
Even though conservative lawmakers and governors might not like the idea of legalizing marijuana it can still be in their interest to pass a law themselves rather than wait for the people to speak. One reason is that marijuana legalization initiatives appeal more to liberal voters, who often stay home in a non-presidential election year.
In Michigan, the squabbles over enacting its medical marijuana laws may have given the pro-legalization forces the stimulus they need. The legislature, which doesn’t approve of marijuana─medicinal or recreational─dragged its feet and in general, tried to delay or prevent the establishment of regulated marijuana dispensaries.
Many dispensaries opened anyway, determined not to be thwarted by reactionary politicians who don’t agree with the will of the people. Then the legislature tried to make them close in order to qualify for a state license. Pro-cannabis supporters then gathered enough signatures to place a recreational marijuana initiative on the ballot.
The members of the state legislature hatched a plan. If they passed the proposal before the election, they could make it amend it, change it, put in place more restrictions. Perhaps they could do like Vermont─the only state so far to legislatively pass a recreational marijuana bill─and prevent the commercial development of a marijuana industry, only allowing possession and cultivation for personal use. Or ban smoking marijuana.
That would have been an end run around the will of the people─nothing new for this bicameral entity─but in the end, they couldn’t reach a consensus on what amendments to add. Now they’re just hoping the Michigan people don’t pass the initiative.
Missouri state officials also tried to settle the matter legislatively and also failed. Now they might face four separate medical marijuana initiatives on the ballot. At least one seems likely to pass, but more than one could pass, creating further headaches.
Cannabis opponents in Utah got even more creative. Again, enough signatures were gathered to put the bill on the ballot, but Utah─along with Florida─allows petition signature revocation or rescission. That is, if someone who has signed a petition for a statewide ballot initiative changes their mind, they may withdraw their signature.
Since the signatures also must come from almost all of the districts in the state─26 out of 29─if the margin of victory is slim enough (in a few districts the pro-marijuana petitions only had a few hundred votes to spare), this maneuver can knock a petition off the ballot. Professional canvassers were hired to go door-to-door and persuade enough of these signers to change their minds.
Unfortunately for the anti-marijuana supporters, in at least one case (caught on video), the persuasion included outright falsehoods. Purportedly a member of the Utah Medical Association (UMA), a prominent foe of the legislation, the canvasser said untrue, nonsensical and logically contradictory things in an effort to get a signature withdrawn.
UMA denies she worked for them (its main argument─that medical marijuana may lead to recreational legalization─wasn’t among her talking points), but the underhandedness of the attempt, freelance or hired, led even the Republican governor to conclude it was better to let the people decide.
Oklahoma’s governor came up with another method of minimizing the electoral damage of motivated liberals at the polls. Once he realized a medical marijuana initiative was likely to pass, he put the proposal on the June 26 primary election ballot instead of November’s.
Three more states that may have marijuana initiatives on the ballot in November, if they gather enough signatures in time:
- Arizona narrowly failed to pass a recreational use initiative in 2016. This year it may have as many as three on the ballot if the petitions are completed by July 5. Gov. Doug Ducey is opposed to any change in the law, which is probably why a legislative proposal never passed.
- North Dakota also may have a recreational use proposal on the ballot, coupled with creating “a process to automatically expunge the record of an individual who has a drug conviction for a controlled substance that has been legalized“.
- Nebraskans may get to vote on a decriminalization and/or a full legalization initiatives.
Meanwhile, despite appointing an attorney general who is extremely antagonistic towards marijuana, President Trump seems to have resigned himself to eventual marijuana legalization. The World Health Organization, despite a strongly worded letter “warning” nations and states not to legalize marijuana, seems to be thinking likewise and may revise its cannabis rules over the next couple of years.
The worst thing about the current laws is that they don’t allow for proper regulation, safety testing, and health concerns. They can’t complain that there is no research when you are the one preventing research.
By abrogating their responsibilities, the world’s governments─the UN and the US especially─have forced the People’s hands.
Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.