A Tipping Point for Marijuana Reform?

A week after Election Day 2012, I am still considering the full significance of the legalization of adult marijuana use in Washington and Colorado. I don’t mean whether this is an important development for the reform of American drug policy. It is. My colleague Kasia Malinowska-Sempruch has an excellent piece in Project Syndicate that thoroughly covers why the voters in these two states chose legalization. As Kasia’s counterpart working specifically on U.S. drug policy, I am asking myself a slightly different set of questions. How did this happen? What could happen next? What should happen next?

I believe—and even say out loud, occasionally—that laws prohibiting adult marijuana use are headed toward extinction. It is just a matter of time. Focus groups and opinion polls, old and new, consistently show that younger people better understand and are more comfortable with the idea of regulated access to marijuana than older generations. The influence of these voters increases with each election cycle, as additional young voters take the field and older voters depart. It is simple mathematics.

But, can it be happening so soon? Clearly, many (older?) voters who were unsure about marijuana have changed their minds. Credit the local-level reform campaigns—and not just in regard to successful state ballot efforts. Numerous municipalities around the country have elevated these issues by changing their local marijuana policies. It would also be unfair not to acknowledge the massive 2010 effort in California to pass Proposition 19. It lost at home, but maybe it has something to do with the wins in Washington and Oregon.

And, for me, the outcomes in both Colorado and Washington are only a part of the story in 2012. The fact that a similar measure in Oregon didn’t pass could actually be even more compelling evidence that America is approaching a marijuana policy paradigm shift. Why? The campaign to pass the initiative in Oregon was a pale shadow of the efforts mounted in the other two states. The Oregon campaign did have Willie Nelson, but that’s about it. It did not have Washington’s astounding cast of unimpeachable supporters and spokespeople; it did not have the Colorado campaign’s experienced and relentless staff. The sponsors of the Oregon initiative were also hamstrung by the provisions of their own proposed law, which some knowledgeable reviewers have described as “flakey.” And yet, 45 percent of Oregon’s voters, nearly half, still supported marijuana legalization with their votes.

So, is this a tipping point for marijuana reform? Maybe. But, I see it more as the leading edge of a trend that will intensify. I sense an element of historical inevitability.

How will the Obama administration respond? Nearly all U.S. marijuana arrests are made by state authorities and prosecuted in state courts, with only possession on federal property and large scale trafficking charged and prosecuted federally. Washington and Colorado voters flipped that relationship in their states. They have decided to try something different, and the federal government can do nothing to reverse their decision.

On the other hand, federal law enforcement authorities could roll into states that legalize marijuana and start arresting marijuana users on purely federal charges. There will certainly be some primitive thinkers at the DEA who will recommend this course of action, but it is hard to imagine the more thoughtful individuals in the Obama administration agreeing. Even the well-publicized raids on medical marijuana providers around the country have been justified as a crackdown on “fake” dispensaries. That justification will no longer exist in Washington and Colorado. I’m sure there will be federal arrests, but I see no way that the federal government would be able to sustain the logistical and political burden of a protracted marijuana war in the states.

So, what should the federal government do? Above all, the Obama administration should take it slow. Nothing in Washington or Colorado is going to change overnight, with the exception of the elimination of the individual and public cost of marijuana arrests and prosecutions. Marijuana use might go up some, but millions of Americans have still used and produced marijuana even under prohibition. Both states have implementation horizons that will give the federal government plenty of time to weigh in on issues that are properly of federal concern.

There are areas where the feds should act now. For example, the federal government should ensure that marijuana does not cross state boundaries in violation of either state’s laws, just as we do with alcohol. And the Obama administration should be considering how we can produce and control, on a national level, the supply of marijuana domestically. We already do produce much of our own marijuana domestically, but without even the simplest safeguards. And, by the way, if Mexico and other countries are to stop paying the price for our appetites, we should also consider realistic options for dealing with the demand for all drugs in America. Hint: The threat of criminal punishment hasn’t worked.

Let me suggest a starting point for the Obama administration. Talk to the sponsors of the marijuana initiatives in both Washington and Colorado. They are as different as their respective states. The president’s team would learn a lot about how to be part of the solution, rather than the last stay of failed drug policies. And, as this president said when asked if he inhaled, that is the point. This is the federal government’s opportunity to get in early and help shape an orderly transition. Regulated access to marijuana for adults in the states is inevitable. The question is whether the new national marijuana policy will be realistic and benefit society or repeat the same old mistakes.