We as Americans are no strangers to the constant drama and developments surrounding the legalization of marijuana. Attorney General Jeff Sessions has made it clear where he stands on marijuana and the states that have legalized it over the last five years, yet states continue to move towards legalization. Where is this trend going? What are the latest developments under the new administration? What options are available to Sessions going forward?
Wait, backup. Can I have some background?
We are all aware of the horrific drug epidemic that has taken over in our country over the last few years. But we’re not winning the war on drugs. Check out this post The War on Drugs: America’s Number One Public Enemy for more information about the history and repercussions of that decades long policy. Of all of the initiatives in history, few have been, and still are, analyzed and criticized as much as the war on drugs and marijuana’s designation as a Schedule I drug. Schedule I drugs are drugs with “the most potential for abuse and dependence” and with no medical value. Other drugs that are classified as schedule I are heroin, LSD, ecstasy, Peyote and methaqualone. The level below, schedule II drugs, consists of cocaine, methamphetamine, methadone, hydromorphone (dilaudid), meperidine (demerol), oxycodone (oxycontin), fentanyl, dexedrine, adderall and ritalin.
Despite the federal government’s on going prohibition, marijuana is legal for medical or recreational purposes in 30 states and Washington, D.C.. Marijuana has come a long way over the last few years in the public eye. In March, a government poll found 57 percent Americans favor legalizing marijuana. In an April Quinnipiac poll, they found medicinal marijuana was supported by 94 percent of the public.
Sessions is more or less famous for his anti-marijuana stance. He has highly publicized quotes like “good people don’t smoke marijuana” or marijuana is “only slightly less awful than heroin”. (Quick fact – in 2015, heroin killed almost 13,000 people and no one on record has ever died from a marijuana overdose.)
Okay, What is Happening with Sessions and Marijuana Currently?
In May, Sessions wrote a letter to Congress asking them to undo federal medical-marijuana protections, aka the Rohrabacher-Farr amendment, which have been in place since 2014. In case you’re not familiar with the Rohrabacher-Farr amendment, it prohibits the Justice Department from using federal funds to impede states “from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.” The amendment does not include any protections for recreational marijuana.
In his letter, Sessions states: “I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime.” This new direction comes after recent national movement trying to step away from prosecuting small marijuana crimes.
We reached out to Justin Strekal, Political Director, of NORML (National Organization for the Reform of Marijuana Laws) to get his thoughts on Sessions’ claims and likely future actions and he shared some clear concerns: “Attorney General Jeff Sessions has been a lifelong advocate for the failed policies of the “Just Say No” era — policies that resulted in the arrests of millions of otherwise law abiding citizens who possessed personal use amounts of marijuana. At a time when the majority of states now regulate marijuana use, and where six out of ten voters endorse legalizing the plant’s use by adults, it makes no sense from a political, fiscal, or cultural perspective to try to put this genie back in the bottle. It is high time that members of Congress take action to comport federal law with majority public opinion and the plant’s rapidly changing legal and cultural status.”
What is Currently Going On?
Considering there is a growing body of research (acknowledged by the National Institute on Drug Abuse) showing opiate deaths and overdoses actually decrease in states with medical marijuana laws, which makes trying to change access a trickier situation. Taking away medicinal marijuana could actually make the opioid epidemic worse. Voters have also stated that they disagree with the government enforcing federal marijuana laws (aka marijuana being an illegal, Schedule I drug) with over half of the states having legalized marijuana either medically or recreationally.
Here is a map of all the legislation proposed in 2017 having to do with the legalization of marijuana:
Governor Inslee and Attorney General Ferguson of Washington said in their letter, “We encourage you to keep in mind why we are having this conversation. State and federal prohibition of marijuana failed to prevent its widespread use, which was generating huge profits for violent criminal organizations.” Not to mention costing the country millions for crime enforcement and incarceration.
What are the Options?
In August 2013, deputy attorney general, James Cole, wrote the Cole Memo. This memo was addressed to all U.S. attorneys and said, “In jurisdictions that have enacted laws legalizing marijuana in some form… conduct in compliance with those laws and regulations is less likely to threaten the federal priorities…”. The memo laid out eight federal guidelines on marijuana law enforcement:
- Prevent distribution of marijuana to minors
- Prevent marijuana revenue from funding criminal enterprises, gangs or cartels
- Prevent marijuana from moving out of states where it is legal
- Prevent use of state-legal marijuana sales as a cover for illegal activity
- Prevent violence and use of firearms in growing or distributing marijuana
- Prevent drugged driving or exacerbation of other adverse public health consequences associated with marijuana use
- Prevent growing marijuana on public lands
- Prevent marijuana possession or use on federal property
Rohrabacher-Farr passed in 2014. In 2015, representatives Polis (D-CO) and McClintock (R-CA) attempted to go further by proposing a similar measure to Rohrabacher-Farr, but one that would have protected state-legal recreational marijuana programs; it narrowly failed. But the fundamental issue with both state laws and these guidelines remain — none of them are “law of the land”. The law is that marijuana is illegal.
The continuing resolution bill passed in May included the Rohrabacher-Farr amendment (look at section 537 for the amendment text), allowing states to carry on with developing and passing their own medical marijuana policies without fear of federal intervention. However, as Mr. Strekal explained to me, “the base CJS bill rolled out in the summer did not [include the amendment] nor has it been amended in the House to include it.”
Sessions does have a point in saying that federal law is “not eviscerated because the state ceases to enforce it in that state” and I think this mentality and practice from states could be dangerous. We do have federal laws for a reason and when states start to disregard the federal government it can lead to a slippery slope to other federal laws being contested across the US (think same-sex marriage and abortion).
Sessions’ first option: Let states keep doing what they’re doing
Although this seems like an unlikely scenario due to Sessions’ dislike of marijuana, even though the legislators and citizens of the US have spoken on their stance of generally approving legalizing some type of marijuana. With the recent reaffirmation of the Rohrabacher-Farr amendment, legislators have said that they want to continue to let states control their own regulatory affairs surrounding marijuana.
There has been new legislation, the Marijuana Justice Act, and old legislation, the Regulate Marijuana like Alcohol Act, that make it appear that legislators are moving in this direction, despite Sessions’ opinions and attempts. The Marijuana Justice Act would not only remove marijuana from the DEA’s list of controlled substances entirely and legalize it on a federal level, but provide financial incentives for states to legalize it. The Regulate Marijuana like Alcohol Act would do exactly as the title states, which many people support because they believe marijuana is a less dangerous substance than alcohol, which is legal but heavily regulated.
Sessions’ second option: Increasing restrictions on states that legalize in the future and change the status quo for states with existing laws
Although this is not something people seem to be talking about, to me, an option that is more of a middle ground makes sense more than a complete prohibition is treating states differently based on what they’ve already legalized. For states that allow recreational and/or medical marijuana Sessions could try encourage the creation of additional regulations, starting from, and perhaps building on, the Cole Memo. For states that haven’t legalized either recreational or any marijuana yet he could be even more aggressive about the regulations seeks to have put in place.
As Mr. Strekal from NORML said above, it isn’t easy to put the genie back in the bottle. For example, Governor Hickenlooper of Colorado earlier this year said about Sessions’ desire to make marijuana illegal across the states “my God, it creates a level of conflict that’s going to be very difficult”. When Colorado legalized marijuana in 2012, they amended their state constitution to make the legalization of marijuana part of it – so no law can just make it go away, it’s explicitly constitutional. Governor Hickenlooper took an oath to defend both the Colorado and the US Constitutions, so forcing him to choose between them puts him in an impossible situation. Other states that have approved use of marijuana face similar difficulties.
So I think Sessions would have much better luck trying to impose new restrictions than attempting to figure out how to undo what states have already done.
Sessions’ third option: taking away the option of recreational marijuana
There are two different areas of the marijuana fight, medicinal and recreational. With the myriad studies out, it’s hard to deny that there are medicinal components to marijuana and that it does actually help people, so I think this would be incredibly difficult to outlaw in its entirety. Recreational use of marijuana, on the other hand, is a bit easier to argue against. But, as I stated earlier, many people think that marijuana is safer than alcohol so this argument too could prove to be difficult.
Sessions’ fourth option: complete marijuana prohibition
This option obviously seems the least likely scenario based on of how states, voters, and legislators have reacted to Sessions’ attempts at re-implementing a complete prohibition. One step he has taken towards prohibition is stating that he wants to increase asset forfeiture (allowing the government to seize money and property without ever formally charging people with a crime if they are suspected of one). Sessions stated he would use it “especially for drug traffickers”. Asset forfeiture has historically been used to fight cartels but if the use of it is increased, officers could potentially take cash, property, and supplies from cannabis businesses operating legitimately under their state law.
Concluding Thoughts and Predictions
Coming from one of the first states to legalize marijuana, I personally find the fact that marijuana could be considered worse than something like oxycontin or cocaine or Adderall to be ridiculous. From observing people using all of these drugs throughout college, marijuana is far and away the least dangerous, especially for young people. When considering marijuana’s relative harmlessness in the context of limited resources and the opioid epidemic (which kills 91 people in the U.S. each day), there is no question where our effort, resources and time should be spent. Furthermore, in January, the National Academies of Sciences, Engineering, and Medicine (NAS) reported that there is “conclusive evidence” that cannabis (both whole plant and extracts) is clinically effective at treating certain conditions, including chronic pain, which are some of the leading problems for those suffering from opioid addiction.
Marijuana is not only not as dangerous as opioids but is a safer, better alternative to prescription pain medicine – heroin, fentanyl and prescription painkillers. The Journal of Pain found chronic pain suffers who used cannabis reported a 64 percent drop in opioid use, fewer negative side effects and a higher quality of life than they experienced under opioids. Even The National Institute on Drug Abuse (NIDA) acknowledges that cannabis may be an effective tool to combat the opioid crisis.
If we are in a state of emergency over the opioid crisis like Trump has recently stated, then time, resources, and the attention of Congress should not be spent on attempting to renew a prohibition of marijuana nation wide that the people don’t even want. Instead, both state and federal governments should be considering how they can mitigate the opioid crisis with medicinal marijuana.
One of the most important things we want and expect from our government is consistency and predictability and we definitely are not getting that right now. Given Sessions’ history, I highly doubt he will back down from this fight which is unfortunate because our time and resources could definitely be put to better use.