In 1961, Harry J. Anslinger, America’s first drug czar, published a book explaining why, 24 years earlier, he had successfully pushed Congress to pass a law effectively criminalizing marijuana. “Sixteen-year-old kills entire family of five in Florida, Minnesota man shoots stranger in head on road; in Colorado (a) husband attempts to shoot wife, kills granddaughter -mother instead and then commits suicide. Each of these crimes had been (preceded) by the consumption of one or more “reefers” of marijuana.
Today we consider this reasoning idiotic. We know that using marijuana does not make you want to kill. Yet our federal laws are still largely based on these misconceptions from more than 85 years ago.
We are living in an interesting moment in American history on the issue of marijuana and whether it should be legalized. This issue is at the top of the state political agenda, as 23 states have legalized recreational marijuana in the past 11 years. A large majority of Americans – 68 percent, according to Gallup, support legalizing marijuana, a transformational change from the 12 percent of Americans who supported legalization in 1969. Today, majorities of Republicans and Democrats support legalization of marijuana.
When voters are asked why they support marijuana legalization, they give several reasons. First, voters today view the fight against marijuana as a drain on police resources. They don’t believe police should arrest people for marijuana possession or that people should be incarcerated for it.
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Second, they believe in the medical benefits of marijuana. Voters agree with the American Academy of Family Physicians, the New England Journal of Medicine and other medical associations that support legalizing medical marijuana.
Nor do they need a medical degree to understand the hypocrisy of legalizing alcohol and tobacco, which kill hundreds of thousands of people each year, while marijuana, which has only resulted in no overdose deaths, remains illegal. They want marijuana regulated and there are credible concerns about the current high potency of some marijuana strains, but they don’t believe it should be criminalized. The best way to control THC potency is through a regulated market.
Finally, voters also believe in the freedom to make personal choices when it comes to consumption, as long as they do not harm others. As John Stuart Mill wrote more than 160 years ago in On freedomwhile the government can “prevent harm to others…(upon) itself, upon its own body and mind, the individual is sovereign.”
Yet despite this major shift in attitudes in the United States and despite legalization in nearly two dozen states, Americans continue to be handcuffed for marijuana possession, and our federal laws still fail to convince voters where they are – in favor of legalizing marijuana.
Let’s start with the facts. In 2020, the most recent year for which complete data is available, police made 317,792 arrests for marijuana possession. That’s one arrest for possession of marijuana for personal use every 99 seconds. As with everything else in the criminal justice system, racial disparities in arrests are extreme. In 2020, Black people accounted for 38.8% of marijuana possession arrests, even though they use marijuana at similar rates to white people and make up only 14% of the population. From 2010 to 2018, a Black person was 3.64 times more likely to be arrested for marijuana possession than a white person, despite similar usage.
President Biden campaigned on a promise to solve this crisis through the decriminalization of marijuana. It has raised expectations among those who believe the war on marijuana should be over. And he took important, but limited, steps.
First, last October, President Biden announced that he would pardon prior federal marijuana possession offenses. It was a positive step forward. Never before has a president so explicitly acknowledged the failures of the war on marijuana. But it also didn’t help a single person in federal custody. Federal sentencing systems tend to send people to prison for more serious offenses, far more complex than simple marijuana possession.
Most recently, the Department of Health and Human Services recommended that marijuana be moved from Schedule I to Schedule III of the Controlled Substances Act, a process known as rescheduling. The move would have broad implications for federal policy, including recognizing that marijuana is now used for medical purposes and that the government no longer claims it has a high potential for abuse. It would also remove some barriers to marijuana research and, according to the Congressional Research Service, those who manufacture, distribute and possess medical marijuana could do so legally under the Controlled Substances Act. If passed, this rescheduling would represent the largest change in federal cannabis policy in more than 50 years.
But again, this decision does not directly address the current crisis in which Americans find themselves handcuffed for behavior that the vast majority of Americans believe should be legal. Placing marijuana on Schedule III will result in little change in the criminalization of people who use marijuana recreationally.
For example, rescheduling will not restore eligibility for public benefits such as housing and nutritional assistance for people who use marijuana recreationally (although federal agencies may issue guidance on discretionary enforcement ). The rescheduling will also mean that non-citizens may still be deported, ineligible for citizenship, and barred from asylum for marijuana-related recreational activities. Additionally, state recreational marijuana programs will remain illegal under federal law, and state criminal laws against recreational use will remain in effect.
Instead of tinkering, the White House and Congress should follow the will of the American people and pass comprehensive legislation to end federal marijuana prohibition. Such legislation should declassify marijuana and also expunge prior marijuana-related arrests and convictions, restore eligibility for public benefits, and reinvest in communities directly impacted by decades of racially discriminatory enforcement of the nation’s marijuana laws. There are versions of these policy solutions in the House and Senate.
The Biden administration acknowledged that “too many lives have been upended because of our failed approach to marijuana.” I agree. But now is the time to put the White House muscle behind that sentiment and end once and for all the federal war on marijuana started by Harry Anslinger more than 85 years ago.
This is clearly what Americans, Republicans and Democrats, want.
Udi Ofer is the John L. Weinberg Visiting Professor and lecturer in public and international affairs at Princeton University. He is founding director of the Princeton Policy Advocacy Clinic and former deputy national policy director of the ACLU.
The opinions expressed in this article are those of the author.
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