‘The Law and Marijuana’ Chronicles: Why Marijuana Remains Illegal

  • by Allen St. Pierre, Former NORML Executive Director June 23, 2009

    Last week Breckenridge Colorado joined the growing chorus of municipalities across America seeking to create a sensible cannabis policy (one, that in principle, is similar to that of alcohol in the recognition between acceptable, responsible adult use and abuse). Even though Colorado is already one of the 13 states that have decriminalized possession amounts of cannabis, following Denver’s lead, Breckenridge voters will soon be asked to make cannabis both a lowest law enforcement priority and the ‘penalty’ for possessing it– nothing. Nada. No fine, no criminal record.

    A bright and enthusiastic lawyer with a young and growing family in Breckenridge is one of the chief advocates for this initiative, and in an ongoing ‘The Law and Marijuana‘ series of essays submitted by attorneys from the NORML Legal Committee to be exclusively published by the organization, Sean McAllister opines about why he thinks cannabis prohibition has lasted over 70 years.



    By Sean T. McAllister, Esq., Member, NORML Legal Committee (Breckenridge, CO)

    Marijuana remains illegal even though public attitudes are clearly changing on this topic. It is illegal even though 100 million Americans have smoked it and suffered little if any negative side effects. It is illegal even though 40% or more of Americans currently support legalization. It is illegal even though it is not physically addictive; you cannot overdose on marijuana; and the dependency rate of marijuana is lower than alcohol.

    Marijuana remains illegal even though prohibition is incredibly expensive. The federal government spends at least $10 billion per year specifically on marijuana prohibition. Approximately 60,000 people are in prisons in America on marijuana violations only. If all 15-25 million Americans who smoke marijuana monthly were imprisoned, the country would spend $365 billion per year to incarcerate these people. Considering the country could reap approximately $6.2 billion per year if marijuana were taxed and regulated like alcohol, the war on marijuana easily costs somewhere in the neighborhood of $20 billion per year.

    Marijuana remains illegal even though prohibition has miserably failed. After 35 years of a war on drugs largely targeting marijuana, the same number of high school students now say marijuana is easy to get and they had used it as answered those question in the affirmative in 1975. It remains illegal even though the Obama administration has declared an end to the “war on drugs,” while at the same time laughing off marijuana legalization.

    Marijuana prohibition continues even though it empowers Mexican drug cartels. Approximately 60-70% of the profit of Mexican drug cartels comes from marijuana sales. If marijuana were taxed and regulated, this black market would virtually disappear, Mexican drug cartels would be much weaker, and our border would be much more secure.

    Despite these facts, most politicians continue support marijuana prohibition. Commission after commission and newspaper editorial board after board may endorse marijuana legalization, but it continues to be ignored in state capitals. Grassroots activism does a great job keeping this issue in the press, but politicians continue to ignore it. Few politicians see it in their narrow interests of reelection to come out in favor of legalization of marijuana.

    What follows is a brief analysis of some of the factors that continue to propagate the inertia of marijuana prohibition:

    Facts don’t matter

    When it comes to marijuana, statistics don’t seem to matter. Costs don’t matter. As noted above, no matter how many billions per year it costs to enforce marijuana prohibition, there seems to be no cost too high to prohibit it. Prohibitionist seem to be saying that there is no cost to high to attempt to limit marijuana use.

    Overall use and teen use is lower in countries that have legalized (Amsterdam) or fully decriminalized marijuana (Portugal, Spain, Britian) than in the United States. There is no real evidence that marijuana is a gateway drug (in fact research shows that marijuana is largely a terminus drug – meaning people use nothing more than marijuana throughout their lives).

    In Colorado alone, 13,000 people are arrested every year on marijuana charges. Another few hundred are in prison on marijuana charges. In total, Colorado spends around $85 million dollars per year on marijuana prohibition. If Colorado taxed and regulated marijuana, the net gain for the state coffers would be $150 million per year.

    None of this seems to matter to those in favor of prohibition. Instead, the debate turns on value judgments and justifications not tried to any empirical data. While those favoring legalization should continue to insist that we deal with empirical data, facts alone will not legalize marijuana.

    Prohibition is a hangover of the 60s culture war

    By far the greatest impediments to living in a world where marijuana is not criminalized are the left over stereotypes and culture wars from the 1960s and 70s. Those where the decades when the counterculture made widespread marijuana use synonymous with alternative lifestyles and an implicit rejection of mainstream traditional American values.

    The classic narrative of drug use in America is that while it may have started out as an innocent and idealized behavior in the 60s, the 70s and early 80s saw the “drug culture” deteriorate into a narcissistic world of selfishness and excess. The irresponsibility of some early users saddled the next several generations with the general notion that marijuana users were not good citizens and their lifestyles did not produce healthy communities and families. Simply put, prohibitionist have succeeded in branding marijuana users as irresponsible and not serious. That perception must change, even if it means more people “coming out of the closet” and showing that marijuana use can occur in conjunction with healthy, intelligent lifestyles.

    Marijuana Prohibition Criminalizes Youth and Leads to Skewed Electoral Results

    The classic pattern of marijuana use is that people begin experiment with marijuana near the end of high school. Experimentation steadily tappers off through their late 20s and for most people by their mid-30s, marijuana use is a rare or nonexistent experience. As people acquire more responsibility (marriage, children, mortgage), they find less room in their lives for marijuana.

    This trend also explains why political change is so hard. As marijuana withers from adults’ habits, they are less likely to pursue or advocate for reform. By a person’s mid-30s, he or she has already quit using marijuana so they have no incentive to seek its legalization. This leads to the general atmosphere of marijuana reform, which is that too few people remain directly affected throughout their lifetimes so as to care about changing marijuana laws. Those that continue to “care,” perhaps care too much and are seen as radicals by the establishment. The reform movement needs to engage past users to help change marijuana laws.

    Free rider problem and Selective Enforcement

    For those that will continue to use marijuana throughout their lifetime (perhaps 6%-10% of users), there also is little incentive to advocate for legalization. As few as 2 in 100 people ever suffer criminal justice sanctions as a consequence of their marijuana use. Because so few stakeholders feel the effects of prohibition, those with the most at stake in legalization are not in the streets demanding change. The difference between the gay rights movement and marijuana proponents is that by advocating for marijuana rights people immediately subject themselves to criminal prosecution – something no longer possible for gay activists.

    Related to the free rider problem is the low stakes involved in most marijuana arrests. With the exception of a few states in the deep south and Utah, in most places marijuana arrests result in a small fine and perhaps community service and/or drug counseling. The popular stereotype that our prisons are filled with people who only smoked marijuana cigarettes is not accurate. Small time users generally do not go to jail, but cultivators and distributors do. Therefore, the lack of serious sanctions has also deflated the potential movement against injustice because the stakes are so small. Why would a doctor or lawyer risk his or her reputation seeking to legalize marijuana when the sanctions are already so slight? Again, these free riders need to be convinced that advocating for marijuana legalization is a “gateway issue” to reforming the larger failed drug war and that they may not avoid prosecution forever.

    Inability to have an honest discussion about drugs – lack of acknowledgement of responsible use

    Another barrier to societal acceptance of marijuana is the inability to have an honest dialogue about the potential positive benefits of marijuana use. Universally, when drugs and marijuana are discussed in public, the frame of debate is that marijuana use is a self-destructive and unhealthy activity. There is little public acknowledgement that for millions of people occasional and responsible marijuana use has greatly enhanced their lives, such as by making a walk in nature powerfully introspective, by resulting in riotous laughter, or by making their sex lives more fulfilling. Instead, those who are usually the most outspoken about marijuana’s positive aspects tend to preach in a manner that makes marijuana use out to be an unmitigated good, refusing to acknowledge any negative consequences of abuse. The message of legalization must be that while legalization may marginally increase some irresponsible behavior, the savings from ending the war on marijuana will far outstrip any harms.

    Just say no is an easy message for parents

    Parents have always had a hard time discussing drug use with their children. Many parents are conflicted on this issue because a large percentage of parents once experimented with marijuana. Keeping marijuana illegal gives parents an unassailable reason why their kids should not use it: because it is illegal. The simplicity and utility of prohibition is a major reason that many parents passively support it, even if they privately don’t believe marijuana is harmful. Parents need to be shown alternative methods for keeping their children away from marijuana, such as science based drug education.

    A long term minority without a constitutional right protecting them

    The main Constitutional defense to marijuana prosecution is that it violates rights to privacy under the 5th and 14th Amendment. Unfortunately, other than Alaska, most experts believe that state privacy rights are not strong enough to protect marijuana use in your own home. There are no other significant constitutional guarantees that can be expected to protect marijuana users. Unlike racial minorities or gays and lesbians, it is unlikely that marijuana users can seek refuge in Constitutional clauses for their activities. With only 15-25 million regular users, about 10%-15% of all adults in America, it is unlikely that a majority of American adults will ever use marijuana on a regular basis as long as it is illegal. Without a constitutional right to protect them, it is unlikely they will be able to muster electoral majorities in the next 10-15 years to end their persecution.

    Discomfort with Freedom

    Despite America being the “land of the free and home of the brave,” in practice there appears to be a significant resistance and discomfort with giving people the freedom to make potentially bad choices. Regardless of how many can use marijuana safely or responsibly, if some abuse it, many will oppose legalizing it. This inherent discomfort with the actual practice of freedom is a major cultural hurdle to legalization.

    The many have always paid for the poor choices of the few. Marijuana prohibition is by definition a preemptive war which seeks to criminalize all who use marijuana because a few may abuse it. While America seems to recognizing the futility of preemptive wars, there is still a strong undercurrent of support for this type of reaction.

    Discomfort with Marijuana Intoxication Compared with Alcohol

    There is no principled distinction between alcohol and marijuana intoxication. The Attorney General of Colorado says that people can drink alcohol in “sub-intoxicating doses,” which seems only possible for those chronic users of alcohol who are not affected by small amounts. Of course, the mild psychedelic or psychological aspects of the marijuana are different than alcohol. The paranoia resulting from marijuana use in a small number of users is among its most common psychological negative effect. While most people experience great insight and pleasure from the use of marijuana, others experience this paranoia. The general discomfort with psychedelic or spiritual experiences related to marijuana use lead many to a conclusion that it should not be widely used. Again, this is the many paying for the negative consequences of the few.


    Marijuana legalization is gaining steam. I believe firmly that in my lifetime it will be legal for both medical and recreational purposes. What seems necessary at this point is to build a movement of tolerance for responsible marijuana users’ rights to be left alone. This tolerance will also need to acknowledge that a small minority of people may abuse their freedom if marijuana is legalized and that society will need to deal with those negative effects. Surely all the money saved on incarceration and prohibition would cover the costs of any negative effects of legalization. Rather than spending another generation toiling under a failed system, I hope we can end this failed preemptive war on marijuana soon. However, it will not end until the reform movement addresses the above concerns and transforms the debate back into a human-centered fact-based dialogue which focuses on reasonable solutions rather than ideology.

    Sean T. McAllister, Esq.
    McAllister Law Office, P.C.
    PO Box 3903
    Breckenridge, CO 80424

    110 responses to “‘The Law and Marijuana’ Chronicles: Why Marijuana Remains Illegal”

    1. […] original here: ‘The Law and Marijuana’ Chronicles: Why Marijuana Remains Illegal Share and […]

    2. Jay says:

      such a powerful message, i have been saddened that it has taken so long for the lights to start shining on this subject.. but clearly they are now here! and the light is shining!
      thank you for fighting so hard for the americans rights

    3. Kristina says:

      This was a great read! i totally agree.

      Smokers need there families who know that life is functioning to also speak up in defense, since they dont smoke and wont be so quickly judged.

      Voices are so meek and need to be stronger, but with the constant Federal overrule we refrain from engaging.

      and i appreciate your willingness to address the few that make us look bad. we all know there are those who abuse, but until we agree with legislators on this issue it will remain rhetoric to comments.

    4. If anyone is contemplating moving to Colorado, better move fast! The Realty Market is not stupid, they’ll up the price as thousands move to Colorado to be truly FREE. All indicators and market data support the changes to Marijuana Laws on the horizon. Thousands of people are moving to Colorado already, employment is up and construction is in full swing ahead of the legalization movement of MJ. The hell with California, “Colorado” is now seen as the promise land for medical marijuana patients AND personal users of MJ alike.

      If anyone can suggest helpful data to new arrivals such as employment (Pot Friendly Employers,) houseing, etc., please post a link on this blog so we can all share the information.

    5. […] the original post:  ‘The Law and Marijuana’ Chronicles: Why Marijuana Remains Illegal Share and […]

    6. Mark says:


      Let’s raise some funds for NORML, every search gives 1.3 cents to the charity of your choice (NORML anyone?). If every one did this we could raise a good deal together.

      Conservatively, lets say 10 searches daily per person, and maybe 5000 people use this. That’s about $36 per person per year, $182,500 a year among 5000 people.

      Numbers are fun…

    7. Thomas says:

      Good article, but he forgot to mention all the money alcohol, tobacco, and pharmaceutical companies pay the lawmakers to keep it illegal.

    8. money says:

      marijuana is illegal because of its economical potential. the chemical companies (namely DuPont that today has their hands in all GMO and are feeding us crap) stand to loose a lot of money if cannabis was legalized. if you look at how marijuana became illegal you will see that DuPont had a big influence on the matter. this is what you can do with cannabis

      * All schoolbooks were made from hemp or flax paper until the 1880s; Hemp Paper Reconsidered, Jack Frazier, 1974.

      * It was LEGAL TO PAY TAXES WITH HEMP in America from 1631 until the early 1800s; LA Times, Aug. 12, 1981.

      * REFUSING TO GROW HEMP in America during the 17th and 18th Centuries WAS AGAINST THE LAW! You could be jailed in Virginia for refusing to grow hemp from 1763 to 1769; Hemp in Colonial Virginia, G. M. Herdon.

      * George Washington, Thomas Jefferson and other founding fathers GREW HEMP; Washington and Jefferson Diaries. Jefferson smuggled hemp seeds from China to France then to America.

      * Benjamin Franklin owned one of the first paper mills in America and it processed hemp. Also, the War of 1812 was fought over hemp. Napoleon wanted to cut off Moscow’s export to England– Emperor Wears No Clothes, Jack Herer.

      * For thousands of years, 90% of all ships’ sails and rope were made from hemp. The word ’canvas’ is Dutch for cannabis — Webster’s New World Dictionary.

      * 80% of all textiles, fabrics, clothes, linen, drapes, bed sheets, etc. were made from hemp until the 1820s with the introduction of the cotton gin.

      * The first Bibles, maps, charts, Betsy Ross’s flag, the first drafts of the Declaration of Independence and the Constitution were made from hemp; U.S. Government Archives.

      * The first crop grown in many states was hemp. 1850 was a peak year for Kentucky producing 40,000 tons. Hemp was the largest cash crop until the 20th Century; State Archives.

      * Oldest known records of hemp farming go back 5000 years in China, although hemp industrialization probably goes back to ancient Egypt.

      * Rembrants, Gainsboroughs, Van Goghs as well as most early canvas paintings were principally painted on hemp linen.

      * In 1916, the U.S. Government predicted that by the 1940s all paper would come from hemp and that no more trees need to be cut down. Government studies report that 1 acre of hemp equals 4.1 acres of trees. Plans were in the works to implement such programs; Department of Agriculture

      * Quality paints and varnishes were made from hemp seed oil until 1937. 58,000 tons of hemp seeds were used in America for paint products in 1935; Sherman Williams Paint Co. testimony before Congress against the 1937 Marijuana Tax Act.

      * Henry Ford’s first Model-T was built to run on hemp gasoline and the CAR ITSELF WAS CONSTRUCTED FROM HEMP! On his large estate, Ford was photographed among his hemp fields. The car, ’grown from the soil,’ had hemp plastic panels whose impact strength was 10 times stronger than steel; Popular Mechanics, 1941.

      * Hemp called ’Billion Dollar Crop.’ It was the first time a cash crop had a business potential to exceed a billion dollars; Popular Mechanics, Feb., 1938.

      * Mechanical Engineering Magazine (Feb. 1938) published an article entitled ’The Most Profitable and Desirable Crop that Can be Grown.’ It stated that if hemp was cultivated using 20th Century technology, it would be the single largest agricultural crop in the U.S. and the rest of the world.

      DuPont was invested in chemicals and lumber he stand to loose a lot of money due to the hemp industry getting bigger. So he had some people put in the right places in government and then strated a propaganda campaign agains cannabis.

    9. MikeH says:

      I have never before seen the truth of this issue portrayed so clearly. Thank you Mr. McAllister for taking time out of your life to write this, we will win this war if people like you keep bringing this issue up.

      -Mike H

    10. Glen says:

      While you make good arguments, ignoring the powerful lobbies that actually keep Cannabis illegal is not an answer. Great read for me, but people may be interested in seeing how much money is actually made because of prohibition.

      What pharma drugs could be replaced? How many prison guards let go? How many police will lose jobs? How would paper mills and chemical companies deal with legal hemp? How many lawyers and judicial employees would be unemployed?

      Legalization of drugs would bring the scale of change that a single payer health care model would bring. Massive savings, and massive needs to shift obsolete employment into new fields.