Few industries worth almost $10 billion are illegal under federal law. Fewer still operate out of giant dispensaries that sleekly advertise their extensive selections, or state-of-the-art cultivation processes, in open sight of passersby. But we live in a new age: the age of recreational marijuana.
2018 will be a telling year for the future of the burgeoning marijuana industry in the United States. The regulatory situation was already complex when, in January, an unexpected policy change at the federal level led to widespread confusion about the industry’s future. Meanwhile, policy implementation at the local level has been complicated by inconsistent Department of Justice enforcement, and the states which have already legalized marijuana must continue developing solutions to challenges widely overlooked by the public. These hurdles notwithstanding, many experts believe that the momentum propelling legalization across the country is likely to prevail.
The Conflict Intensifies
Tensions concerning the future of recreational marijuana exist not only between state and federal marijuana law, but also within the Trump administration itself. When Trump entered office, the Department of Justice operated under the Cole Memo, which discouraged DOJ resources from going towards the enforcement of federal marijuana law in states where the drug had been legalized. Although Trump affirmed that he was “in favor of medical marijuana 100 percent” in a 2016 interview, his Attorney General, Jeff Sessions, has long been a vocal opponent of both medical and recreational marijuana use, concerning marijuana activists deeply. As Trump neared a year in office without any significant action on marijuana policy, those invested in the industry felt increasingly safe from federal interference. But Sessions’ January decision to rescind the Cole Memo reignited activists’ deep-seated fears. Suddenly, it seemed likely that the federal government would act to punish marijuana use and possession by individuals previously deemed legal by the states.
For John Hudak, senior fellow at the Brookings Institute and marijuana policy expert, Sessions’ announcement, rescinding a policy that held bipartisan support, was indicative of an “individual letting his own … biases overwhelm public policy.” This view is not in the minority: dozens of Republican members of Congress and Governors have spoken out against the policy.
The direct effect of the policy on the legal marijuana market, however, is unclear, as the enforcement power will be in the hands of federal prosecutors. Federal prosecutors in California and Colorado, for instance, have committed to operating as they did before Sessions’ shift. Others, such as U.S. Attorney in Massachusetts Andrew Lelling, who labeled it “a straightforward rule of law issue,” have sided with the Trump administration. Enforcement seemingly depends on prosecutors’ personal priorities. It is unlikely that the policy will have a uniform effect across the country; rather, it will serve to continue the fragmentation of an already inconsistent framework of law.
In an interview with the HPR, Tick Segerblom, a Nevada state senator, warned that overwhelming grassroots support for marijuana would cause problems for any serious attempts at federal enforcement. He predicted that there “would be riots in the streets … You can’t put the genie [of marijuana legalization] back in the bottle.” Hudak noted, however, that no matter the impassioned rhetoric of local lawmakers, in the event of a sustained federal crackdown, states would be powerless to protect the industry, as federal law trumps state statutes.
The Unanticipated Consequences of Legalization
For now, there is little that states can do except wait to see whether Sessions’ move will have any effect. Meanwhile, states on the frontlines of legalization must continue to iron out policy wrinkles themselves.
Already, 30 states have legalized medical marijuana, and eight plus Washington D.C. have legalized recreational use. Driven by legislative efforts and voter propositions, even more states, such as Vermont and New Jersey, are on track to legalize recreational marijuana in the coming year. Hudak suggested that Massachusetts and California, the largest states to legalize recreational marijuana, will provide important case studies for the rest of the country. “All eyes will be on these new states as a signal of how effective marijuana policy is,” he noted.
The Road Ahead
Some challenges are sure to arise in all states. A significant concern for lawmakers is clarifying what level of THC is acceptable when driving. Using the same tests for marijuana as those used to determine intoxication from alcohol is inadequate, because the effects of marijuana use do not manifest themselves physically in the same way as alcohol. Treating marijuana as an equivalent to alcohol can allow for overwhelming police discretion. No accurate tests have been implemented for roadside use when officers pull people over for driving under the influence of marijuana. This discretion may manifest itself in potential for the next arena of police abuse of power against minorities.
As Jacob Sullum wrote in the January issue of Reason magazine, police officers currently possess broad power to claim that drivers are under the influence of marijuana. He cited the example of an officer in Georgia who arrested three drivers for marijuana intoxication, booking them and placing them in jail for the night, before tests finally proved that there was no THC in their blood. In the absence of clear regulations, police abuse of powers in regulating driving under the influence is deeply concerning. Interestingly, however, in states where marijuana is legalized, overall arrests, which had disproportionately targeted minorities, have decreased dramatically. Hudak noted that more public awareness about the effects of driving under the influence of marijuana is critical, as is more knowledge about penalties. Segerblom suggested adopting a new test rather than test blood-levels of THC once arrested. “There’s no correlation between what’s in your blood and being under the influence. Medical patients can have sky high THC levels but … function perfectly,” Segerblom commented.
Segerblom said the most pressing issue will be regulating public use of the substance. In all states that have legalized marijuana, public consumption remains illegal. Current laws that allow marijuana use only within one’s home are especially problematic, as tourists—a pillar of the Nevada economy—have nowhere to legally consume marijuana. Contradictory law manifests itself in manners difficult to resolve: for instance, if a casino worker finds marijuana in a hotel room, the question of whether it should be treated as equivalent to alcohol, since recreational marijuana is regulated under Nevada state law, or as equivalent to heroin, since marijuana is classified under the federal Controlled Substances Act, remains difficult.
Another question for states that have legalized the substance is what to do with those imprisoned under a law that no longer exists at the state level. There is little precedent to guide the way. During the Prohibition era of the 1920s, when there was a federal ban on alcohol, thousands were arrested and jailed, many of whom were not released after the 21st Amendment repealed Prohibition. As Jon Gettman, professor of criminal justice at Shepherd University and a marijuana reform activist, told the HPR that individuals who are arrested for marijuana possession most commonly receive misdemeanors. Though jail time is less common, misdemeanors still appear indefinitely on individuals’ records, affecting their ability to get jobs, houses, loans, and more. Gettman argues that states must create new laws to expunge the records of those previously arrested and filed for marijuana possession.
Breakthroughs Despite Uncertainty
Though detailed policy-making at the state level has room to advance in 2018, the progressive approach to marijuana in the states has been surprisingly effective. Hudak, the author of Marijuana: A Short History, is surprised by the capability of states to effectively regulate marijuana. Segerblom confirmed that state-level marijuana policy has proven overwhelmingly successful, commenting that marijuana in Nevada is strictly “regulated, tested, and taxed.” In many states, strict laws to trace marijuana throughout all levels of production, called “Seed to Sale,” have limited interstate issues and streamlined quality.
Jeffrey Miron, Director of Undergraduate Studies in Economics at Harvard and the Director of Economics Studies at the Cato Institute, however, believes that the bureaucratic rule-making and extensive regulatory measures implemented by states actually hinder the potential economic benefits of legalization. He argued that “[states are] trying to regulate in a complicated and expensive way … believing that they can get the benefits of legalization and yet not have anyone actually increase their use of marijuana.” However, the consensus of state lawmakers in Oregon, Washington, Colorado, and other states, has been overwhelmingly positive as to the overall impact of legalization, especially as the details of regulations continue to be refined.
Thus, though the Trump administration seems unlikely to reverse course on marijuana policy or other social issues, the states have proven themselves more than capable. On issues like the “environment, labor, and minimum wage,” according to Hudak, the progressive approach at the state level has the potential to empower states beyond the Trump administration’s agenda.
For example, state-level policy development has allowed states to adopt laws specific to their needs, such as Nevada’s prioritization of access for tourists. Segerblom expressed confidence in states’ abilities to continue implementing effective policy, arguing that “we don’t want to go crazy on the federal level … then it will just empower big pharma, or big alcohol or big tobacco to … take it all over.”
Federal legalization any time soon looks unlikely, despite popular support, because marijuana has come to be a states’ rights issue. Hudak views the most likely scenario to be the federal enactment of legal marijuana as a waiver program, whereby states that so choose can legalize marijuana without the threat of federal intervention, but are otherwise not forced into legalization.
As Gettman, an activist in the push to legalize marijuana who has been involved with the issue for over two decades, noted, “It’s hard to make an argument based on any empirical observations that there’s going to be a reversal or a change in this trend.” No states have gone back to prohibition after liberalizing marijuana laws, even at the more incremental levels of medical marijuana. This suggests that public policy may finally be catching up to public opinion. Despite the whirlwind around federal crackdown of marijuana law, shiny dispensaries adorned with neon cannabis leaves are not going anywhere.
Image Credit: unsplash/Itay Kabalo