When one looks at many other important public policy debates in this country, at some point the courts can and must step in to render a decision that changes the entire debate, and corrects an injustice with the stroke of a pen. In our system of government, the courts have co-equal standing with the legislative and the executive branch, and can overrule an offensive or unfair policy based on Constitutional principles.
Perhaps the most important example of these modern decisions was Brown v. Board of Education, in 1954, in which a unanimous Supreme Court overruled the separate-but-equal policy of racial segregation in public schools, finding “separate educational facilities are inherently unequal” and declared the policy as a violation of the Equal Protection Clause of the Fourteenth Amendment, paving the way for integration. Next came Griswald v. Connecticut, in 1965, when the Supreme Court first identified a Constitutional right to privacy, overturning laws making the use of birth control a crime . Although the Bill of Rights does not explicitly mention “privacy”, Justice William O. Douglas wrote for the majority that the right was to be found in the “penumbras” and “emanations” of other constitutional protections.
Similarly, in 1967 the Supreme Court struck down state laws known as miscegenation laws, that made it a crime for interracial couple to marry, finding those laws a violation of both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. And in 1973, in Roe v. Wade, the court, based on the right to privacy found in the Fourteenth Amendment, ended the ban on abortions, permitting a women to decide whether to terminate her pregnancy.
For the rest of this column, please jump to Marijuana.com.
The new law takes effect in January.
Illinois joins more than a dozen states — including Hawaii, Indiana, Nebraska, South Carolina, Tennessee, and Utah earlier this year — that have enacted legislation redefining hemp as an agricultural commodity and authorizing state-sponsored research and/or cultivation of the crop.
Law enforcement in many states are making a greater number of marijuana arrests than ever before despite polling data showing that the majority of Americans believe that the adult use of the plant ought to be legal.
According to a just published report, “Marijuana in the States 2012: Analysis and Detailed Data on Marijuana Use and Arrests,” which appears on the newly launched RegulatingCannabis.com website, police made an estimated 750,000 arrests for marijuana violations in 2012 – a 110 percent increase in annual arrests since 1991. Yet, despite this doubling in annual marijuana arrests over the past two decades, there has not been any significant reduction in marijuana consumption in the United States the report found.
In 2012, marijuana arrests accounted for almost half (48.3 percent) of all drug arrests nationwide. Marijuana arrests accounted for two-thirds of more of all drug arrests in five states: Nebraska (74.1 percent), New Hampshire (72 percent), Montana (70.3 percent), Wyoming (68.7 percent) and Wisconsin (67.1 percent).
From 2008 to 2012, seventeen state-level jurisdictions experienced an average annual increase in marijuana arrests, the report found. South Carolina (11.6 percent) and the District of Columbia (7.7 percent) experienced the highest overall percentage increase in arrests during this time period. By contrast, annual marijuana arrests fell nationwide by an average of 3.3 percent from 2008 to 2012.
Overall, the study reported that the five state-level jurisdictions possessing the highest arrest rates for marijuana offenses are the District to Columbia (729 arrests per 100,000 citizens), New York (577), Louisiana (451), Illinois (447) and Nebraska (421). District of Columbia lawmakers decriminalized the adult possession of marijuana earlier this month.
The two states possessing the lowest marijuana arrest rates are California and Massachusetts, the report found. Both states decriminalized marijuana possession offenses in recent years.
Stated the report’s author, Shenondoah University professor Jon Gettman, “After a generation of marijuana arrests, nearly 19 million and counting since 1981, the results are that marijuana remains widely used, not perceived as risky by a majority of the population, and widely available. The tremendous variance in use and arrests at the state level demonstrate why marijuana prohibition has failed and is not a viable national policy.”
The New York Times has joined the majority of US citizens in the call for a more rational marijuana policy. The White House responded with an attempt to explain why a taxed and regulated market is no “silver bullet solution.” Alluding to The Lone Ranger probably wasn’t a great idea, but I think they mean that this isn’t a panacea for every problem related to cannabis.
Of course, all our other legislation is perfect, so we shouldn’t change this policy until we have a solution with all advantages and no disadvantages.
Our government says that this use of law enforcement and court time targets marijuana users because the plant alters brain development, impedes academic achievement, impairs driving, and creates addiction. The tacit assumption, that prohibition is going to prevent all of these problems, is tenable at best. (We’ve had police officers whip out the handcuffs over 18 million times since 1981. From 1995 until now, we’ve had at least one marijuana arrest per minute. The plant is more available than ever.) But let’s forget about how prohibition isn’t going to help and address the White House’s Furious Four Factors.
The first two (brain development and academic achievement) fall under the “what about the children” category. When all else fails, it’s great to play the baby card. NORML has condemned juvenile consumption for decades now. Of course, the underground market is notoriously bad at carding purchasers. When was the last time a dealer asked for ID? Licensed distributors who could lose their livelihood for underage sales would be markedly more motivated to keep the plant from children. But let’s address the claims.
Brain Development. Regular use early in life could alter brain development. But here’s the point no one is supposed to mention: we don’t really know for sure. It’s likely. It works in animals. But it’s not proven. The niftiest gizmos that take pictures of brains often can find differences between those who’ve used early and those who haven’t. But we don’t have a time machine. We don’t really know if these people had deviant brains before they ever saw the plant.
Investigators who run these expensive studies also have a hell of a time publishing results unless they find some differences. Many would rather leave the data in a drawer than battle editors and reviewers in an attempt to publish a paper that says that marijuana has no impact. What has been found is not always consistent. It’s one brain area showing differences in one study and another in the next. Reports that find nothing, or that the non-users actually have deviant brains (e.g. Block, O’Leary, Ehrhardt, et al., 2000, who found bigger ventricles in non-users), never get mentioned. Big reviews try to tell a coherent story, but effects are small. Binge drinking is markedly worse. (See Lisdahl et al.). Cigarette smoking leads to detectable changes in brain structure, too. I’d joke that we should make alcohol and tobacco illegal following this logic, but I’m afraid some people will actually try to do so.
Academic achievement. If the government genuinely cared about my academic achievement, I think I would have learned more in public school. But that’s another issue. We know that mastering new material immediately after using cannabis is extremely difficult. Going to class high is a dumb waste of time. It would certainly interfere with grades. But what’s the real issue here?
Decades ago, researchers showed that college students who used the plant had better grades than their peers who didn’t (Gergen, Gergen, & Morse, 1972; Goode, 1971). It’s not that marijuana’s a study aid. Students who liked the plant might have taken classes they enjoyed and flourished as a result. Subsequent studies didn’t always confirm these results, and investigators lost interest.
But high school kids who use the plant often bonk their exams. Most heavy users had earned lower grades prior to their marijuana consumption, suggesting cannabis could not have caused the poorer performance (Shedler & Block, 1990). Essentially, cannabis users with bad grades in high school also had low marks when they were in fourth grade. Cannabis might not lead to bad grades, but folks with bad grades often turn to cannabis. In addition, high school students who smoke cannabis heavily also tend to use alcohol and other illicit substances. Once these factors are taken into account, the link between cannabis and academic performance disappears. These results suggest that drugs other than marijuana might lower grades (Hall, Solowij, & Lennon, 1994).
In truth, if the government wants to see better achievement in school, the best answer would require schools with funding. Perhaps we could attract more of the energetic, enthusiastic, well-trained teachers who inspire learning if we offered better salaries. Students might find school more engaging when teachers are delighted and facilities are excellent. Busting teens for possession seems too indirect a strategy for improving education.
Driving. Paul Armentano has done such a superb job of summarizing the relevant data on this topic that I don’t want to belabor it.
A few points are worth emphasizing. NORML has always opposed impaired driving. People who can’t pass appropriate roadside sobriety tests should not operate a motor vehicle. Note that passing a sobriety test has little to do with the content of anyone’s blood or urine.
A recent meta-analytic review suggests that, at most, cannabis is no worse than antihistamines and probably on par with penicillin when it comes to culpability for accidents. If we’re going to make all drugs that impair driving illegal, we’re going to have a lot of runny noses and infections to handle.
Research from The Netherlands shows that folks who use cannabis in the laboratory lose their willingness to drive (source). When the experimenter forced them, they go slower, avoid trying to pass other cars, and start putting on the breaks earlier when they have to stop. These compensatory steps probably explain why a couple of studies have found cannabis users less culpable than drug-free drivers. Surprise surprise! This work never got any press. (Drummer, 1994, Bates & Blakely, 1999).
A study of over 300 drivers involved in fatal crashes in California focused on motorists who tested positive for cannabis but no other drug. Unexpectedly, they were half as likely to be responsible for accidents as those who were free of substances (Williams,,Peat, & Crouch, 1985). Another investigation of over 1,800 fatal crashes in the United States found that drivers who used only cannabis were only 70% as likely to have caused an accident as the drug-free group (Terhune, Ippolito, & Crouch, 1992). These are literally impossible to publish anymore, potentially suggesting the bias alluded to in the Elvik meta-analysis. So don’t drive high, but drive as if you were. Go slowly. Don’t try to pass. Leave room to stop.
Addiction. The new DSM V definition of addiction qualifies me for a caffeine disorder, so I’m obviously biased. Better take what I say with a grain of salt. But be careful, salt allegedly has addictive properties, too.
After five millennia and a series of moving definitions, researchers have finally identified something that they can call marijuana withdrawal and marijuana addiction. I’m guessing that prohibitionists really love this one. it conjures up images of sweaty heroin users snatching purses and plunging needles into infected arms. Have you met people who mug girl scouts to maintain their marijuana money? Neither have I. So what is marijuana addiction supposed to be? Among the most common symptoms are disturbed sleep and, I can barely say this with a straight face, loss of appetite. Anybody who uses every day and then gets irritated on a day without the plant could end up qualifying. If you tell anyone struggling with the opiates that these are the symptoms of your addiction, you’re likely to get a swift kick in the crotch. Expert opinions suggest that only the hallucinogens are less addictive than marijuana.
The most negative thing a government can do to its citizens is punish them. If we want to use punishment, we need outstanding reasons. These four simply do not qualify.
Block, R. I., O’Leary, D. S., Ehrhardt, J. C., Augustinack, J. C., Ghoneim, M. M., Arndt, S., et al. (2000). Effects of frequent marijuana use on brain tissue volume and composition. NeuroReport, 11, 491–496.
Drummer, O. H. (1994). Drugs in drivers killed in Australian road traffic accidents. (Report no. 0594). Melbourne, Australia: Monash University, Victorian Institute of Forensic Pathology
Gergen, M. K., Gergen, K. J., & Morse, S. J. (1972). Correlates of marijuana use among college students. Journal of Applied Social Psychology, 2, 1–16.
Goode, E. (1971). Drug use and grades in college. Nature, 239, 225–227.
Hall, W., Solowij, N., & Lennon, J. (1994). The health and psychological consequences of cannabis use. Canberra: Australian Government Publication Services.
Shedler, J., & Block, J. (1990). Adolescent drug use and psychological health: A longitudinal inquiry. American Psychologist, 45, 612–630.
Terhune, K. W., Ippolito, C. A., & Crouch, D. J. (1992). The incidence and role of drugs in fatally injured drivers (DOT HS Report No. 808 065). Washington DC: U.S. Department of Transportation, National Highway Traffic Safety Administration.
Williams, A. F., Peat, M. A., & Crouch, D. J. (1985). Drugs in fatally injured young male drivers. Public Health Reports, 100, 19–25.
This afternoon, the House of Representatives voted 231 to 192 in favor of the Heck-Perlmutter-Lee-Rohrabacher Amendment, which will restrict Treasury Department and SEC funds from being spent to penalize financial institutions for providing services to marijuana related business that operate according to state law. This proposal amends H.R. 5016, a spending bill for fiscal year 2015 that funds the Internal Revenue Service, Treasury Department, and Securities and Exchange Commission.
The amendment reads:
“None of the funds made available in this Act may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, or Wisconsin or the District of Columbia, to prohibit, penalize, or otherwise discourage a financial institution from providing financial services to an entity solely because the entity is a manufacturer, producer, or person that participates in any business or organized activity that involves handling marijuana or marijuana products and engages in such activity pursuant to a law established by a State or a unit of local government.”
This vote comes on the heels of another recent historic vote in the House of Representatives, that restricted Department of Justice and DEA funds from being used to interfere in state approved medical marijuana programs. That measure is still awaiting action in the US Senate. This measure, HR 5106, will now be sent to the Senate as well.
“The recent votes in the House of Representatives demonstrate bi-partisan support at the federal level to allow states to experiment with new marijuana policies, free from federal interference,” stated NORML Communications Director Erik Altieri, “If implemented, this amendment will help alter the current untenable status quo that forces otherwise law abiding businesses to operate on a cash only basis, making them a target for criminal actions and unduly burdening their operations.”