Editor’s Note (10/7/22): On October 6 President Joe Biden announced he would pardon “all prior federal offenses of simple possession of marijuana” and asked U.S. governors to do the same at the state level. He also called for a review of the classification of marijuana on the federal schedule of drugs.
The U.S. House of Representatives has narrowly passed a bill called the Marijuana Opportunity Reinvestment and Expungement (MORE) Act. The bill would remove marijuana from the federal government’s list of illegal substances, a first of many steps in the process of decriminalizing the drug nationally. The bill would not create a nationwide legal cannabis market (as some headlines have implied) or remove any individual state’s criminal penalties; additional federal legislation would be required to accomplish those goals.
Public opinion has swung rapidly in favor of legalization, and there is growing discontent among the public and policy makers with the criminalization of low-level drug offenses. Lawmakers and legalization advocates will likely continue to propose policies to legalize marijuana at the state and federal levels. As public health researchers who have studied policies regulating marijuana, alcohol and tobacco, we are strongly in favor of decriminalization, but cautious about full legalization. The continued criminalization of marijuana harms people, but the history of legal alcohol and tobacco shows that public health can suffer when profits take priority over the public good. Here is what we think an ideal federal cannabis policy might look like, taking into account three primary considerations: just and equitable criminal policy, individual liberty and strong regulation.
Decriminalizing marijuana and legalizing it are two separate policy questions. Our research has shown that they can have different outcomes. From 1970s into the 2000s, possession of cannabis was a misdemeanor in most states, carrying the possibility of large fines and criminal records for having even small amounts of the drug. We and others have long thought these penalties are disproportionate to the crime.
In 2008, Massachusetts reduced penalties such that possession of small amounts of marijuana became akin to a traffic ticket. Many other states followed. This is decriminalization of marijuana: fewer or lesser penalties, but not necessarily with laws or infrastructure supporting legal sales. People of color are much more likely to be arrested for possession than white people, and this disparity has worsened in states that have not decriminalized or legalized cannabis. For these reasons, public health advocates have become more vocal in calls for cannabis decriminalization, because there are health effects of being arrested or having a criminal record. For example, the American Academy of Pediatrics issued a policy statement in 2015 calling for marijuana decriminalization in light of consequences such as lost job and educational opportunities, and trauma associated with arrest and detainment.
Yet legalization doesn’t completely solve the criminalization problem, because people can still break the law through underage possession, illegal sales and other violations. Our research has shown two interesting things: in states that have decriminalized marijuana and have age-restricted legal cannabis markets, there was no immediate reduction in arrests for people under the age of 21, but in states that decriminalized cannabis possession but did not fully legalize it, there was a reduction in arrest rates of minors and enforcement disparities.
We don’t yet know why this is, but perhaps in states where decriminalization was the primary goal, legislators focused explicitly on criminal penalties and carefully developed legislation that had maximum impact on criminal consequences for all ages; and in states where legislators’ primary goal was creating a legal market for marijuana, the decriminalization side of the equation didn’t get the same attention to detail.
And still, poor people and minorities bear the brunt of civil penalties and fines, even if there is no arrest record to go along with them. To combat this, we think that states should remove all penalties for carrying small amounts of cannabis, essentially legalizing possession for personal use but not sales or distribution. We also think states should expunge the past criminal records of people who were convicted of possession of small amounts of marijuana and even for low-level sales.
Our current drug policy regarding marijuana, when compared to laws for alcohol and tobacco, makes little sense. Cannabis rarely ever kills someone, unlike alcohol and other drugs. And deaths from the latter two are rising. We think that the individual choice and freedom that stem from a more liberal cannabis policy can contribute to the common good. Research from Uruguay, Canada and the United States suggests that the age-restricted legalization of marijuana sales does not lead to large increases in cannabis use among youth, a primary concern expressed by prohibition advocates. Some of this research has found that adults use marijuana more, but this is expected; the laws provide legal access to adults who chose to consume it.
However, increased freedom for the cannabis industry is not necessarily a good in and of itself. Cannabis is an addictive substance. At its extreme, laissez-faire legalization with few regulations is harmful. History offers multiple examples of the societal harm that stems from lax regulation, including the tobacco industry, an increasingly deregulated alcohol industry and too few restrictions on pharmaceutical marketing of opioids.
As with alcohol and other drugs, a small percentage of users consume most of the cannabis produced. These will be the marketing targets of the cannabis industry to expand sales and increase profits. While heavy use is not known to lead to death or organ damage, there is little question that cannabis has acute effects on learning and memory, and therefore on overall functioning and productivity. Over time, these effects can adversely impact work and educational outcomes, which in turn worsen health and decrease life expectancy.
Our read of the current cannabis legalization research is that most study results are consistent with the “commercialization hypothesis” put forth by policy analysts Robert MacCoun and Peter Reuter, and supported by their studies of the Dutch experience with partial legalization. They argue that the removal of criminal penalties and strictly regulated sales are unlikely to lead to large increases in problematic cannabis use, but conspicuous advertising and aggressive marketing likely will.
As the U.S. Senate considers the MORE act, we urge policy makers to be as proactive as possible in alleviating the suffering caused by unnecessary and ineffective criminal penalties for marijuana violations. We urge policy makers to consider how to limit the power and influence of an industry that will inevitably argue against taxes, restrictions on advertising and promotion, and a purchase age of 21. Decades of research show that these are the tools that can reduce the harms associated with addicting substances. Failure to use them will result in a new addiction industry in the United States.
