Legalizing Marijuana -- But How?

Legalizing Marijuana – But How?

Many now advocate legalizing marijuana – several surveys indicate that a majority of the population does. The idea is so vaguely worded that it presents two questions: what does legalization mean and how can it be done? The first can be clarified rather easily, but the second presents a tangle of complication.

Those advocating marijuana reform fall into three camps: decriminalization, medical use, and legalization. Decriminalization means removal of criminal penalties from possession for personal use while maintaining criminal laws against growth, distribution and sale. About twelve states have taken this approach (with most retaining small civil fines for possession), as have The Netherlands, Portugal, Germany, Mexico, and Brazil. Other European nations have simply quit enforcing laws against possession. Fourteen states and the District of Columbia allow possession for medical use by those with a doctor’s recommendation, several of these also establishing approved production and distribution systems. The federal government has announced that it will respect these programs. Canada and most of Western Europe also allow medical marijuana. In most respects, recognition of medical use is a form of decriminalization.

The most comprehensive reform being advocated is legalization, or removal of all criminal penalties for growing, processing, distributing, or possession. This would be accompanied by laws regulating places and methods of sale, age of users, and liability rules for misuse or abuse. Taxation would probably follow. Legalization would result in a system much like that used for alcohol today.

Current nation-wide polls show that over sixty per cent, and possibly eighty per cent, of adults favor recognition of medical marijuana, while about forty-five per cent favor legalization. These surveys usually do not distinguish between legalization and decriminalization. Some kind of national reform looks likely, but the methods are problematic.

The major problem comes from the federal structure of the American government. Both the national government and the state governments (all fifty of them!) have independent jurisdictions to make and enforce laws against marijuana. If the federal law is reformed, a person would still be restrained by the law of whichever state she was in; and if a state reformed its law, its residents would still be in jeopardy from federal enforcement. The current efforts of states to allow medical use of marijuana illustrate this problem. Even though today’s national administration has pledged to respect the state laws, the effect of the federal laws on banking, marketing of medicines, education, employment, and other areas of life prevent full implementation of those laws. Federal and state laws must both be changed if reform is to be effective.

Under these circumstances, three approaches are possible. Reform in the states may be pursued first before challenging the federal law; federal law can be confronted first, followed by the states; or the two can be assailed simultaneously.

Groups are currently active on both the state and federal level, but with little coordination between them. The major defect in this approach is that it dilutes resources, scattering people and money among dozens of groups with minimal cooperation between them. The major advantage is that these many groups can create widespread public attention and enthusiasm.

Federal reform could be pursued first, allowing the states to follow at their own rates. This approach was the one followed in the repeal of alcohol prohibition, with some states still retaining prohibitory laws some eighty-five years later. The result is a confusing patchwork of laws across the country, but it does allow localities to control their own destinies.

The third approach is to concentrate on the states first. Pending referenda in California and Washington are examples of this approach. If enough states reform their laws, the federal government will be forced to follow. Federal law, even during alcohol prohibition, was forced to rely on state and local agencies for enforcement. A national police force large enough to enforce drug laws would be prohibitively expensive and most people would refuse to allow that level of federal policing in everyday life.

Even if marijuana were legalized, federal law would need changing to allow medical use. Ending prohibition under the Controlled Substances Act would still have medicinal marketing banned by the Federal Drug Administration. The FDA’s administrative approval for marketing as a drug is practically prohibitive. Normally, approval of a new drug costs several hundred million dollars and takes many years. However, the safety requirements for approval of marijuana can be met from current information, and at least one new study showing the effectiveness of marijuana for pain relief claims to satisfy FDA requirements for a Phase III study (a number of Phase III clinical studies are required for approval), possibly making approval more likely. If marijuana is approved for even one use, the doctrine of off-label prescription means that physicians can prescribe it for any therapeutic purpose and pharmacists may fill those prescriptions.

The question remains about whether to attack DEA scheduling of marijuana as having no medical use, which would allow sales subject to FDA regulation, or to first seek FDA approval, which would force DEA rescheduling. Currently both are being pursued in parallel.

However, a third approach is possible. In the 1990s Congress established a separate method for regulating herbal remedies and dietary supplements. This system allows products to be sold without prior approval but subject to FDA after-market supervision for both safety and misleading claims. Marijuana clearly fits into the definition of many products now subject to that law and is safer than many of them that are also psychoactive like St. John’s Wort and Kava. Congress could easily move marijuana from the CSA to coverage under this system without facing the stigma of legalizing drugs.

Some kind of reform of marijuana laws is probable. However, the route to that reform is more complex than most people assume. More thinking about the best path to reform is necessary.