In an election night of seismic shocks, one electoral trend held true to form Election Night: Marijuana law reform continued to win with voters.
With California, Nevada, Maine, and Massachusetts legalizing marijuana last week, eight states, including the entire West Coast, have now joined the District of Columbia in making marijuana possession and use legal for all adults.
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These states join the 28 states (plus D.C.) now permitting the medical use of cannabis, meaning that a growing majority of states now permit at least some form of marijuana consumption by adults.
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The states voting to legalize marijuana Tuesday night will find a complicated legal landscape ahead of them. Even as an increasing number of states are moving away from marijuana prohibition, marijuana remains a Schedule I drug under the Controlled Substances Act. This means that, at least, in theory, everyone producing, selling, or consuming it remains subject to arrest, asset forfeiture, conviction, and long terms in prison even if they are acting in compliance with their own states’ laws.
President Obama dealt with this tension — the states are increasingly legalizing that which the federal government continues to criminalize — by formulating a policy of deference with regard to state marijuana law reform.
His Justice Department pledged not to enforce federal criminal laws against those complying with robust state marijuana regulations that met federal priorities regarding access by minors, the participation of organized crime, the diversion of marijuana out of state, and other societal harms.
While this use of enforcement discretion was welcome news to those in law reform states, it was hardly a solution to the federal-state tension over marijuana law.
Marijuana’s continuing federal prohibition means that banks frequently do not provide basic services to marijuana businesses, that medical marijuana patients can be fired for consuming the medicine that they need to be able to work, and that parents may jeopardized their parental rights if they take advantage of state laws permitting them to use cannabis.
With the election on Tuesday of Donald TrumpDonald John TrumpSenate advances public lands bill in late-night vote Warren, Democrats urge Trump to back down from veto threat over changing Confederate-named bases Esper orders ‘After Action Review’ of National Guard’s role in protests MORE, the situation becomes even less clear. Although President-elect Trump has expressed an intention to continue President Obama’s hands-off approach to cannabis use in the states, we haven’t yet seen the details of his Department of Justice’s policy. Although many argue that it is too late to un-ring the bell of marijuana law reform, the state-federal imbalance — already complicated and fragile — cannot hold.
The time has thus come for significant federal marijuana law reform.
This reform could take any number of forms. The simplest would be to simply remove marijuana from the Controlled Substances Act entirely, allowing the states to truly chart their own path with regard to marijuana policy.
The federal government could still play a role – as it does with the regulation of tobacco and alcohol – but the states would be the primary policy maker with regard to the regulation and taxation of cannabis, unfettered by the threat of federal intervention.
Alternatively, the federal government could reschedule marijuana within the Controlled Substances Act so that it could be prescribed and dispensed like other, much more dangerous medicines currently are.
Or the federal government could keep the marijuana ban in place, but grant waivers to states that have demonstrated they are able to regulate the drug in a way that satisfies federal priorities.
It is important to remember that neither the federal government nor the states face a choice between prohibition on the one hand and unfettered marijuana capitalism on the other.
Rather, the choice is between prohibition and regulation. Whether the federal or state governments will be the primary authors of marijuana law reform going forward, it is important to start thinking now about what purposes we want those regulations to serve.
Sensible regulations will prohibit predatory market practices, stifle the black market, and provide public revenues, but these goals will often be in tension. High taxes raise revenue but could allow black market operators to undercut the legal market; prohibiting certain products like edibles or concentrates may serve the public health, but market demand will mean that those products will continue to be produced outside a carefully regulated industry.
A number of states are already wrestling with these regulatory questions and we certainly don’t yet have all the answers yet. But it is important that federal policy makers take the first step, eliminating the stark tension between federal law and the preference the people are consistently expressing at the ballot box.
Kamin, Esq. is the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver’s Sturm College ofLaw.
The views expressed by Contributors are their own and are not the views of The Hill.