The Future of Marijuana Reform, After Huge Victories in 2012

On Tuesday, a coalition of congressional lawmakers, led by Reps. Jared Polis (D-CO) and Earl Blumenaur (D-OR) will introduce legislation to permit for the regulated commercial production, retail sales and taxation of cannabis to adults in states that have legalized its consumption. The historic measures mark the first time members of Congress have sought to legalize the social use of marijuana and are indicative of the shifting tone in public and political opinion regarding the plant once dubbed the "assassin of youth."

America is at a tipping point regarding the public’s desire for common-sense alternatives to marijuana prohibition. Never in modern history has there existed greater public support for ending the nation’s nearly century-long experiment with pot prohibition and replacing it with a system of legalization and regulation. And following the Election Day victories in Washington and Colorado this past November, even some congressional lawmakers are gaining the confidence necessary to align themselves with public opinion when it comes to pot.

Cannabis prohibition financially burdens taxpayers, encroaches upon civil liberties, engenders disrespect for the law, impedes legitimate scientific research into the plant's medicinal properties, and disproportionately impacts communities of color. Furthermore, the criminalization of cannabis simply doesn't achieve its ostensible goals. Since 1970, an estimated 22 million US citizens have been cited or arrested for violating marijuana laws. Yet despite this vigorous criminal enforcement, over 100 million Americans acknowledge having consumed cannabis, and one in 10 admits to consuming  it regularly. Prohibition hasn't dissuaded a significant portion of the general public from consuming pot or reduced its availability, but it has damaged the lives and careers of millions of people who were arrested and sanctioned for choosing to ingest a substance that is safer than alcohol or tobacco.  

After witnessing decades of failure, a majority of Americans are now saying “Enough,” turning their backs on cannabis criminalization and demanding alternatives. National polling affirms this emerging public sentiment, as do the historic and much-talked about Election Day results in Colorado and Washington – where for the first time ever, a majority of the electorate decided in favor of legalizing the consumption, production, and retail sale of cannabis by adults.

In the three months since the November 6 election, it has become apparent that these victories at the ballot box have only strengthened the public’s desire for change.  For example, a December 2012 Public Policy Polling telephone survey of US voters found that 58 percent of the public believes that marijuana “should be legal.” Only 34 percent of respondents opposed the notion of legalizing cannabis. A newly released poll conducted by Princeton Survey Research Associates International reports that 53 percent of Americans believe that “the government should treat marijuana the same as alcohol,” while over 70 percent of respondents say that the federal government should butt out of the affairs of states that have legalized the plant. A post-election survey by the polling firm Angus Reid found that 54 percent of US citizens favor legalizing cannabis, and two out of three predicted that marijuana would be legal nationwide within 10 years. Their prediction may be accurate – assuming the marijuana law reform movement continues to build upon its existing momentum. It can do so in the following ways.

Address Polling Gaps

Despite Americans’ significant support for legalizing pot, there remain pivotal pockets of opposition. For example, self-described Democrats and Independents favor marijuana legalization by far greater percentages than do self-identified Republicans or conservatives. Republicans are the controlling party in many states, particularly in many southeastern and Midwestern states that lack the ballot initiative process and where cannabis possession and cultivation penalties still remain disproportionately harsh, such as in Florida, Oklahoma, Georgia, and Texas. If marijuana law reform advocates ever expect to replicate their recent ballot box victories in the legislatures of these and other politically right-leaning states, they must do a better job in the years ahead convincing self-identified and politically elected Republicans that this is an issue deserving action and support.

Polls also reveal an age divide within the public’s support for legalization. Predictably, those aged 18 to 65 – who likely have had firsthand experience with the drug – typically express far greater support for legalization than those over 65, many of whom likely have never consumed or even seen cannabis.

There is also a prominent gender gap. Men consistently support marijuana law reform in far greater numbers than women, typically by about nine percentage points. Arguably, reformers must better target and appeal to voters in these important demographics. Grassroots outreach efforts like the Silver Tour and NORML’s Women’s Alliance are laudable first steps toward building necessary inroads within these communities. But far greater and more expansive outreach is required in order for reformers to better gain the trust and support of women and older Americans – two of the most powerful forces in modern politics.

Better Identify What ‘Legalization’ Means to the General Public

Now that it is becoming self-evident that a majority of Americans support the notion of marijuana "legalization," there needs to be better clarity among advocates regarding what the public means when they use this terminology. Do a majority of Americans want to see cannabis regulated like alcohol and cigarettes, or do most of the voting public simply want adult marijuana consumers to be left alone? Do Americans favor taxing marijuana sales? If so, how much should this tax be? Are most Americans comfortable with the idea of licensed pot sales in stores? If so, in which types of stores would these sales take place, and to whom? Would producers and distributors be able to market and advertise their product like alcohol and pharmaceuticals? Is a majority of the public willing to accept advertisements for cannabis on television in manner similar to the ways Viagra, Budweiser and Levitra are promoted?

In short, if marijuana law reform advocates hope to successfully harness the public’s rapidly changing pot sentiments into actual changes in pot policies, then reformers must better identify and clarify precisely what the public and elected officials are ready to accept. And they must proceed accordingly.

Finish the Job in Colorado and Washington

Arguably, before reformers can begin looking toward the future, they must first finish the job in Colorado and Washington. That means making sure that those state’s new laws regulating the consumption and retail distribution of cannabis are implemented responsibly – both by state regulators (many of whom may be motivated to over-regulate the plant) as well as by the cannabis community (some of whom may try to exploit these nascent laws). It is up to the reform movement to insist that egregious violations of the spirit of these laws do not occur.

This movement is now acting on a national stage. Politicians and voters from around the nation, if not the world, are waiting to see that this movement and the cannabis community can legally regulate the plant in a manner that is allied with the voters’ sentiments and that they can do so in a way that does not negatively impact public safety. Assuring the proper and appropriate implementation of cannabis legalization in Colorado and Washington will galvanize support for the enactment of similar policies in other states around the country. But the failure to do so will undercut the public’s support for legalization and could provoke a nationwide backlash the reform movement can ill afford.

Be Open to Regulation, But Be Wary of Over-Regulation

Reformers in the months and years ahead must better engage the public as to the safety of cannabis relative to other controlled substances, including most therapeutic drugs, herbal supplements or social intoxicants. Marijuana poses a very low risk of toxicity to healthy cells and organs. It lacks overdose death potential in humans, and it possesses an unparalleled safety profile (ratio of effective dose to fatal dose). Further, compared to virtually all legally marketed synthetic agents, cannabis possesses a much longer and wider history of human use. As a result, scientists today arguably do not need to speculate as to the long-term effects of cannabis use by adults. Rather, society ought to acknowledge that human beings from all walks of life have largely used cannabis safely for thousands of years.

Why is this discussion so important? It’s important because as America transitions from a policy of cannabis prohibition to one of legalization, reformers must be ready and willing to engage in serious conversations with lawmakers and the public regarding the enactment and imposition of appropriate regulations guiding cannabis’ consumption, production, and distribution. Ideally, the facts surrounding marijuana’s unique and exceptional safety profile relative to other legally available substances must drive this conversation. Regulators are unlikely, at least at first, to accept legalizing cannabis without imposing significant regulations upon it. It is the job of reformers to see to it that these regulations are not overly burdensome to the adult cannabis consumer and that they do not inadvertently foster a lucrative grey market.

As a consumer lobby, NORML is accepting of proposed regulations that are intended to benefit the adult cannabis user. These potentially include: the enactment of regulations regarding retail product testing for purity and potency, some level of product standardization (again, this would be applicable to commercially produced and distributed cannabis only), the imposition of state or local licensing requirements for commercial producers, guidelines governing how the product may or may not be marketed publicly, the imposition of labeling requirements regarding concurrent use of the product with other psychotropic substances, warning labeling regarding cannabis’ influence of psychomotor performance, and/or labeling requirements specific to substance’s potential risks among certain subpopulations who may be more prone to risks (such as those with a history of mental illness or psychiatric disorders). The enactment of some or all of these regulations would better inform the prospective cannabis consumer, be consistent with those governing similar products in the marketplace, and would be in accordance with the plant’s relatively low risk potential.

Keep Up the Pressure on Congress

Of course, no legal retail market for cannabis can ever take hold as long as there exists federal cannabis prohibition. Fortunately, some congressional lawmakers are now actively trying to bring an end to the government’s destructive criminalization of pot. In the weeks following the 2012 election, a bipartisan coalition of U.S. representatives, led by Rep. Diana Degette (D-Colo.), introduced H.R. 6606, the Respect States and Citizens Rights Act, to prevent federal officials from interfering in Colorado's and Washington's newly enacted laws. Federal lawmakers are anticipated to introduce a 2013 version of this measure and Sen. Patrick Leahy (D-VT) has called for hearings to discuss similar legislative options to ensure that the federal government does not disregard the will of Colorado and Washington voters.

On Tuesday, a bipartisan coalition of Congressional lawmakers will formally introduce a pair of measures to significantly amend federal marijuana laws. Representative Jared Polis will introduce legislation to remove cannabis from the control of the Drug Enforcement Administration and authorize the Department of Treasury to license state-authorized retail marijuana producers and distributors. Separate legislation by Rep. Earl Bluemenauer (D-OR) will seek to establish a federal excise tax structure for retail cannabis production and sales.

Will Congress enact any of these measures this year? Arguably the answer is no. But it is important to remember that Congress relented its stranglehold on alcohol prohibition after fewer than a dozen states rejected the policy. It is likely that this same lesson will also be applicable to cannabis – assuming that marijuana law reformers continue to hold Congress’ feet to the fire.

Where Do We Go From Here?

November’s Election Day results provide marijuana law reformers with a template of what voters will accept – and what they will not. Washington state voters approved the limited legalization, but without the option for home cultivation. In Colorado, however, voters accepted the notion of allowing home cultivation, but only within specified personal use limits. By contrast, Oregon voters rejected a statewide measure that proposed a more laissez-faire approach to cannabis cultivation and consumption.

Ultimately, as reformers look toward the future, they must remember that there is no one-size-fits-all model of legalization. But the recent polling and victories at the ballot box show that, arguably for the first time in modern history, a majority of Americans are ready to amend the status quo. It is now the job of the cannabis reform movement to better identify the specific policy changes that voters desire and to turn voters’ sentiment into political reality.

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