The Case for Marijuana Decriminalization

REPORT 04.16.19 The Case for Marijuana Decriminalization

Katharine Neill Harris, Ph.D., Alfred C. Glassell, III, Fellow in Drug Policy William Martin, Ph.D., Director, Drug Policy Program

population that uses marijuana regularly INTRODUCTION (defined as past 30-day use) has been In 1972, a National Commission on slowly rising since 2000, long before any Marihuana and Drug Abuse, comprising state fully legalized the drug. And while establishment figures chosen mostly by teens today are less likely to use marijuana President Richard Nixon himself, issued a than their peers from a decade ago, they report declaring that “neither the marihuana continue to report that marijuana is easy user nor the drug itself can be said to to get, a trend that has held constant over constitute a danger to public safety” and the last 40 years. During this time, illicit recommended that Congress and state marijuana has flourished, increasing in both legislatures decriminalize the use and casual variability and potency. Taken together, distribution of marijuana and seek means these trends are evidence that prohibition other than prohibition to discourage use.1 has done little to reduce supply or demand Nixon, intent on pursuing his newly of the drug. Prohibition has, however, cost announced “war on drugs,” ignored the taxpayers billions of dollars, saddled millions In recent years public report and Congress declined to consider of Americans—many of them young adults opinion surveys have who will eventually stop using marijuana its recommendations, but during the found that a consistent 40-plus years since its publication, at on their own—with a criminal record, and least 44 states have acted to refashion a contributed to the racial disparities of the and increasing crazy-quilt collection of regulations, nearly U.S. criminal justice system. percentage of Texans always in the direction favored by the Opponents of reform may argue that support marijuana if not for prohibition, marijuana would be commission. The specifics vary by state, but reform, but this support most reforms have followed one of three even more available, more potent, and more formulas: decriminalization of possession frequently used. There are legitimate public has not translated into of small amounts of marijuana for personal health concerns about the effects that a legal policy change. use, legalization of marijuana for medical commercial marijuana market may have on use, or legalization of marijuana for use. But decriminalization, which would still commercial sale and general adult use. prohibit selling marijuana but would remove Opponents of marijuana reform have the negative consequences of possessing it argued that a system of prohibition, which for personal use, is a very different policy, carries possible penalties of jail time and one that arguably has little impact on use imposes a lifelong criminal record on rates or other outcomes of concern, except offenders, is necessary to keep people to reduce the collateral consequences from using marijuana. In 2017, nearly 123 associated with a criminal record. million people aged 12 or older (45 percent This paper is the first in a series of of the population) had tried marijuana at reports elaborating on issue briefs published least once and 41 million had used in the in February 2015 and February 2017 on past year.2 The percentage of the U.S. adult the same topic. Then, as now, the Texas BAKER INSTITUTE REPORT // 04.16.19

Legislature was considering several bills to when California legalized marijuana for reform marijuana laws. The goal of the 2015 medical use. In the early 2000s, states and 2017 reports was to present evidence began making small changes in marijuana about the effects of various marijuana laws—e.g., creating diversion programs for reform options, in hopes that the existing first offenders and lowering the length of research—which overwhelmingly supported jail time—that did not necessarily constitute the assertion that ending marijuana decriminalization but did have implications prohibition benefits society in numerous for the consequences of a marijuana arrest. and significant ways that outweigh potential During this time, large cities (including negative impacts—would motivate elected Seattle, Denver, and San Francisco) also officials to enact pragmatic policy reforms. started using their discretion to treat That did not happen in Texas. During the marijuana possession as the “lowest law current 2019 session, the legislature is enforcement priority,” or to reduce penalties again considering several bills that would for individuals arrested for marijuana reduce penalties for marijuana possession possession, especially first offenders. and allow legal access to medical marijuana At least 22 states have now reclassified for patients with a variety of conditions. low-level marijuana possession as fine- We present the case for reducing penalties only offenses with no prospect of jail below, and address medical marijuana in a time or as civil violations punishable with subsequent report. a modest fine but no criminal charge or record. The amounts of the drug subject to decriminalization vary, ranging from as low MARIJUANA DECRIMINALIZATION as half an ounce (Connecticut and Maryland) to just under 4 ounces (Ohio).4 Incongruities We use “decriminalization” to refer to exist. In Mississippi, for example, possessing the removal of all criminal sanctions for up to 30 grams is a civil violation with a possession of small amounts of marijuana maximum penalty of $250, but possession for personal use. We consider laws that of paraphernalia to use it—e.g., a pipe, a lower the status of the offense from a vaporizer, or a bong—is a misdemeanor with felony or misdemeanor crime to a civil a possible $500 fine and six months in a violation, like a traffic ticket, to be a form of county jail.5 decriminalization because such laws remove The ability to study the impact the criminal status of the offense. We of decriminalization on use rates and acknowledge, however, that some observers other outcomes of interest is fraught may not consider this full decriminalization with measurement challenges due to because marijuana possession is still variability in state laws and enforcement, considered a civil offense and some and an inability to determine causal links sanction, usually a fine, still exists. Policies between policy changes and individual that reduce penalties but retain the criminal behaviors and attitudes. A 2004 review of status of marijuana possession, such as a decriminalization statutes found that of the reduction in classification from a Class B to 11 states thought to have “decriminalized” a Class C misdemeanor, are not considered marijuana possession between 1973 and decriminalization. Policies that decriminalize 1978, four states still considered marijuana marijuana possession for personal use still a criminal offense. The review also found 3 prohibit marijuana sales. that 31 of the 38 states considered non- Between 1973 and 1978, 11 states decriminalized as of 1996 had provisions reduced penalties for or the criminal status for first offenders to avoid jail time. of marijuana possession. This led some This review highlights the difficulties in observers to believe the U.S. was on the differentiating between decriminalized path toward marijuana legalization decades and non-decriminalized states, yet the ago, but several cultural and political shifts majority of analyses studying the impact of halted further reforms and marijuana laws decriminalization treat it as a yes/no policy remained relatively stagnant until 1996, variable. In addition, cross-state analyses of 2 THE CASE FOR MARIJUANA DECRIMINALIZATION

decriminalization typically do not account In Harris County, Texas, the Misdemeanor for large cities located in prohibitionist Marijuana Diversion Program (MMDP) took states that enact de facto decriminalization effect March 1, 2017, allowing individuals policies in their jurisdictions, an increasingly found in possession of 4 ounces or less of common practice that is likely to have an marijuana the opportunity to avoid charges, effect on some statewide measures such as arrest, ticketing, and a criminal record if they arrest rates and jail population sizes. agree to take a four-hour drug education class, regardless of past criminal history.9 Marijuana Policy in Texas While not technically decriminalization, Since 1989, possession of less than 2 ounces because the possibility of arrest remains of marijuana has been a Class B misdemeanor if a person does not take the drug class, in Texas, with possible penalties of 180 Harris County’s MMDP is one of the more days in state jail, a $2,000 fine, and most progressive programs implemented in a damaging of all, a criminal record. Since state that has long upheld prohibitionist 2005, the Texas Legislature has had the policies. As of February 2019, 8,685 people opportunity to pass a bill to reduce the had participated in the program. Of these, 51 penalty for low-level marijuana possession percent (4,467 participants) had completed from a Class B to a Class C misdemeanor it and 23 percent (1,992 participants) (thus removing jail time), and since 2015 it were in the process of completing the has had the opportunity to enact legislation program. About 25 percent of participants to remove criminal penalties for marijuana (2,212 people) had failed to complete the possession entirely and treat the offense program and have had warrants issued for 10 The available evidence like a traffic ticket.6 In recent years public their arrest. An earlier assessment of the opinion surveys have found that a consistent program found that the primary reason for provides no reason to and increasing percentage of Texans support program failure was that participants could think that Texas would marijuana reform (a June 2018 poll shows not afford the $150 payment to take the see a spike in marijuana four-hour drug education class.11 that 69 percent of registered Texas voters use or other negative 7 The district attorney’s office estimates support penalty reduction ), but this support outcomes as a result of has not translated into policy change. that the MMDP saves Harris County $27 12 Despite state inaction on marijuana million per year. This estimate is based on decriminalization. policy, a package of criminal justice reforms the avoided costs of arresting, detaining, that the legislature passed in 2007 has and prosecuting 10,000 people per year, allowed local jurisdictions to issue tickets which is what the county averaged prior for certain offenses, including low-level to implementation of the program. Current marijuana possession, instead of taking figures suggest the program has closer people to jail. Called “cite and release,” to 4,500 participants per year. It is likely, these programs have been enacted around however, that the MMDP has led some law the state. Travis County was the first to enforcement officers to ignore marijuana implement such a program, in 2009, when possession offenses entirely, thus contributing Austin police officers were allowed to issue to overall cost savings. Bexar County and tickets for marijuana possession. While this Dallas County are also experimenting with program enabled officers to use their time alternatives to prosecution for low-level more efficiently, individuals still received a marijuana offenders, as are several smaller criminal record for the possession offense, counties in Texas. thus doing little to address the negative and The fact that numerous Texas counties, long-lasting consequences of an encounter including the four most populous, are taking with the criminal justice system. Recognizing steps to reduce the impact of a marijuana this shortcoming, the Travis County arrest suggests widespread dissatisfaction Commissioner’s Court approved a program to with current laws and is consistent with start in January 2018 that allows individuals public opinion polls finding that a majority found with 2 ounces or less of marijuana to of Texans support decriminalizing marijuana take a four-hour class, pay a fee of $45, and, possession. Possible impacts of statewide by doing so, avoid a criminal record.8 decriminalization are discussed in greater 3 BAKER INSTITUTE REPORT // 04.16.19

detail below, but evidence to date from recent study looking at decriminalization’s Harris County, the most populous county in impact in five states (MA, CT, RI, VT, Texas and the jurisdiction with a diversion and MD) found no positive relationship program most akin to decriminalization, between decriminalization of marijuana indicates that decriminalizing marijuana possession and past-month marijuana possession would not have a negative use among 9th-12th graders. In Rhode impact on the state. Island, the study authors found a 4 percent In 2019 the 86th Texas Legislature decrease in marijuana use associated with could decriminalize marijuana possession by decriminalization.15 passing House Bill 63 (HB 63), which would On the other hand, a study using data replace jail time with a maximum fine of from Monitoring the Future, an annual $250 for individuals possessing up to 1 ounce survey of roughly 50,000 high school of marijuana. The offense would be treated students, looked at the impact of California’s like a traffic ticket, and offenders would 2010 decision to decriminalize marijuana not receive the stain of a criminal record. possession and found that after the law Other measures to reduce penalties for change 12th graders were significantly marijuana possession have been introduced more likely than 12th graders in other this session, but HB 63 is the only one that states to report past-30 day marijuana use removes criminal penalties entirely. and to be less likely to perceive a “great risk” associated with marijuana use. The The vast majority authors suggest this finding supports the DECRIMINALIZATION AND POSSIBLE of arrests related to hypothesis that decriminalization signals to NEGATIVE CONSEQUENCES teens that marijuana use is not dangerous marijuana are for and therefore increases the likelihood of simply possessing the Opponents of marijuana reform argue that use. However, they also find evidence substance, a crime that relaxing prohibition will result in several that the observed impact may be a limited negative consequences, including increased would be eliminated cohort effect that could attenuate following drug use, particularly among teens, a decline in public attention and media if possession were increased crime, and increased driving coverage to marijuana issues. In 2010, when decriminalized. accidents. Such fears are understandable, decriminalization was adopted, California but their relevance is primarily in the was also debating whether to legalize a context of legalization of a commercial commercial market for marijuana sales, so market for marijuana. There is limited it is quite possible that increased focus on evidence to suggest that decriminalization the topic affected youth attitudes toward has a significant impact on use rates, crime marijuana use. rates, or drugged driving. Another analysis also using Monitoring the Future data that were not confined to Possible Effects on Marijuana Use Rates California found no association between A primary objection to marijuana reform marijuana decriminalization and increased is that liberalization of current policies will use of marijuana, cocaine, or heroin, increase teen access to marijuana or lead suggesting that the law change has had teens to think that using it does not carry little impact on marijuana or other illicit risks. Numerous studies in the U.S. and drug use.16 abroad have found that decriminalization There are a few explanations for why does not lead to increased use.13 decriminalization may not affect use. One is In the U.S., several studies that assessed that laws prohibiting marijuana possession the impact of penalty reductions enacted are sporadically and unevenly enforced. by 11 states between 1973 and 1978 found Even in cases where significant resources conflicting evidence, with some studies are dedicated to enforcing marijuana laws, indicating no relationship between penalty the likelihood of getting arrested for using reduction and use and others finding a marijuana in one’s own home is relatively small increase in use or probability of use low, thus limiting the law’s ability to serve in states with more relaxed laws.14 A more as a deterrent from use. Another reason is 4 THE CASE FOR MARIJUANA DECRIMINALIZATION

that a person’s decision about whether to drugs; “marijuana alone is involved in fewer use marijuana regularly is more likely to than 10 percent of all crimes and fewer be driven by perceptions about its health than 15 percent of robberies.”20 The vast risks and social acceptability than its majority of arrests related to marijuana criminal status,17 suggesting that criminal are for simply possessing the substance penalties have little deterrent effect anyway, (marijuana accounts for nearly half of drug regardless of enforcement practices, except possession arrests nationally), a crime that perhaps for some would-be experimental would be eliminated if possession were users. Further, laws that decriminalize decriminalized. possession for use still outlaw marijuana Few studies exist that examine the sales and therefore do little to increase impact, if any, that decriminalization has on availability. crime rates. Especially more recently, the The available evidence provides no bulk of research in this area has focused reason to think that Texas would see a spike on whether legalization of marijuana sales, in marijuana use or other negative outcomes either for medical or adult use, might as a result of decriminalization. increase crime. But an analysis using 2014 data found no statistical relationship between Possible Effects on Crime Rates marijuana’s decriminalized status and The relationship between marijuana policy property or violent crime rates. Aggravated and crime is a contested issue. Supporters of assault and larceny theft rates were lower 21 reform argue that decriminalization lowers in states that had decriminalized. This is crime by freeing up police resources to not to suggest that decriminalizing causes pursue more serious offenses and reducing a reduction in assault and theft, but at a the need for economically motivated offenses minimum it indicates that decriminalization (such as theft) created by the burden of a does not cause an increase. criminal record on employment prospects. Reform opponents have argued that Possible Effects on Crime Related to liberalization could increase property crimes Mental Illness by leading to more users who commit That said, there are populations for whom offenses to support their habit. While extensive marijuana use could lead to some evidence has been found linking use criminal activity. For example, there is some of drugs such as cocaine and heroin to evidence to suggest that using marijuana in economically motivated crimes, there is no adolescence is associated with committing evidence to suggest that marijuana users crimes in adulthood, with heavier and engage in this behavior.18 earlier use increasing the odds of engaging Opponents of reform also argue that in future crimes, although some studies ending marijuana prohibition will lead to an have found a link only between marijuana increase in crime by increasing the number use and drug-related and property crime, of marijuana users who commit offenses as not violent crime. But most studies a result of their drug use. To date, there is finding an association between adolescent a lack of evidence demonstrating that the marijuana use and later crime are not able pharmacological properties of marijuana to determine the nature of this link (i.e., is it cause users to commit crimes. An extensive the biochemistry of the plant or contextual literature review conducted in 2013 by the factors surrounding its use that affect RAND Corporation on behalf of the Office criminality?), nor are they able to rule out of National Drug Control Policy found that additional circumstantial factors. While “even though marijuana is commonly used the mechanisms behind the possible link by individuals arrested for crimes, there is between early marijuana use and criminal little support for a contemporaneous, causal risk are unclear, the research is quite clear relationship between its use and either that adolescents, whose developing brains violent or property crime.”19 The majority make them vulnerable to long-term and of offenders who use marijuana use other negative effects of repeated exposure to 5 BAKER INSTITUTE REPORT // 04.16.19

THC, should not use marijuana.22 Research Possible Effects on Driving Accidents also suggests that marijuana use can Opponents of reform argue that relaxation of exacerbate mental illness, especially marijuana laws will increase the prevalence schizophrenia, and people diagnosed with of drugged driving. In the last couple of schizophrenia or other forms of psychosis years, some states that have legalized should not use marijuana. For people at risk marijuana sales are seeing an increase in of psychosis, marijuana use can contribute the number of drivers who are under the to psychotic episodes, during which a influence of marijuana. One limitation of person may be more likely to commit violent these assessments is that only recently have acts. Alex Berenson, who has recently states and localities more actively tested written extensively about the relationship for marijuana-related impairment, limiting between marijuana, psychosis, and violence, the validity of comparing rates of drugged argues that marijuana use causes psychosis, driving before and after law changes. and that people with psychosis are more Most studies of the impact of marijuana likely to commit acts of violence, and thus policy on drugged driving have focused 23 that marijuana use causes violence. on legalization of a medical or adult-use Critics of this argument have countered commercial market, not decriminalization. that researchers have not been able One recent study found that Massachusetts to rule out the possibility of a “shared experienced a significant increase in THC- vulnerability,” by which people at risk involved fatal crashes after decriminalizing in for schizophrenia are also more likely to 2009 compared to states with prohibition.25 use marijuana while young due to other As the authors point out, however, the study 24 mediating factors. And while there is could not determine any causal effects of substantial evidence that marijuana may the law change, and other factors that could trigger a psychotic episode in a person cause variation between Massachusetts and with schizophrenia, the research linking comparison states were not controlled for. marijuana use itself to violence and crime Another study found that after California is less robust; most studies cannot isolate decriminalized marijuana in 2010, there was marijuana use from use of other drugs and an increase in THC-involved traffic fatalities, alcohol or environmental factors that may but not an increase in marijuana-impaired contribute to criminality. weekend nighttime drivers. The study authors The relationship between marijuana note several possible explanations for this, one and psychosis, and the relationship that of which is that due to “changes in vigilance marijuana-related psychosis may have with regarding ‘drugged driving’ enforcement over a propensity toward violence, are important time,” THC was more likely to be tested for public health concerns that should be and its presence recorded after marijuana at the forefront of conversations about decriminalization took effect, compared to the whether and how to legalize marijuana period before the law change.26 sales. But there is no evidence to suggest Research on marijuana-impaired that decriminalization has any such driving is also complicated by challenges in associated consequences. Even critics of distinguishing between the presence of THC in legalizing marijuana for commercial sale, drivers involved in accidents and the role that whose primary objection is that doing so THC may have played in driver impairment. will increase violence, have expressed Delta-9-THC is the main psychoactive support for decriminalization. Berenson component in marijuana and the best himself supports decriminalization as a indicator of whether a person is impaired. A “compromise” policy that is warranted in blood sample can determine the presence order to remove the burden of arrest and a of delta-9-THC, but active levels of the criminal record for marijuana possession. compound in a person’s blood decline quickly, Implicit in this support for decriminalization making time an essential aspect of accurate is the assumption that reduction or removal testing. Due to logistical issues, collecting of legal penalties does not lead to increased blood samples from suspected drivers, when marijuana use. feasible, is usually an hours-long process. 6 THE CASE FOR MARIJUANA DECRIMINALIZATION

Further complicating matters, marijuana BENEFITS OF MARIJUANA use leaves traces of another compound, carboxy-THC, which can be identified through DECRIMINALIZATION urinalysis and can linger in users’ systems for Reduction in Arrests and Collateral months, even after impairment has long gone. Consequences Regular users can build up both delta-9-THC and carboxy-THC in their systems, meaning Over 62,000 people were arrested for that a drug test might show a person to be marijuana-related offenses in Texas in 2017. under the influence of marijuana when that is Ninety-seven percent of those arrests were 31 not the case. for simple possession. Decriminalization The difficulties associated with accurately would result in a substantial reduction in determining whether an individual is impaired those arrests and, by extension, a reduction from marijuana use create uncertainties for in the consequences that come with a law enforcement officers and drivers, as criminal record. well as for researchers trying to evaluate States that have decriminalized the prevalence of drugged driving and the marijuana have seen significant drops in connection between this behavior and low-level marijuana arrests following the policy change. Complications in the ability policy change. A year after decriminalization, to assess the prevalence and consequences marijuana possession arrests for adults of marijuana-impaired driving highlight the decreased by 90 percent in Massachusetts, Despite similar use need for improved testing methods, but are 86 percent in California, and 67 percent rates, blacks are 32 not a reason to reject decriminalization. It is in Connecticut. Another analysis of roughly 3 times more decriminalization’s impact on arrests found still too early to determine whether broad likely to be arrested for legalization of marijuana increases drugged a 75 percent decline in youth arrests across driving, although there is some evidence to five states (MA, CT, RI, VT, and MD), and a 78 marijuana possession 33 suggest an association. The data regarding percent reduction in adult arrests. than whites and 10 decriminalization are far less persuasive. Arrests for marijuana possession times more likely to It is also worth noting that roughly disproportionately affect communities of color. Despite similar use rates, blacks are be incarcerated. In two-thirds of THC-positive drivers involved Texas, blacks make up in fatal crashes tested positive for alcohol, roughly 3 times more likely to be arrested other drugs, or a combination of both.27 for marijuana possession than whites and roughly 12 percent of 34 This is not to contend that driving while 10 times more likely to be incarcerated. In the state’s population intoxicated on marijuana is safe. It is not, and Texas, blacks make up roughly 12 percent of the state’s population but accounted but accounted for 31 DUI laws should apply to marijuana users as percent of marijuana stringently as to users of alcohol, but there for 31 percent of marijuana arrests in 35 is no question that alcohol poses the greater 2017. These troubling statistics explain arrests in 2017. threat. A review of numerous studies of the why “marijuana is already legal if you’re impact of marijuana or alcohol on motor white” has become a common aphorism. vehicle crashes found that driving while using Decriminalizing marijuana would not marijuana raises the chances of an accident eliminate racial disparities in marijuana by 1.3 to 3 times, compared to 6 to 15 times arrests. Even in places that have fully for alcohol.28 Other analyses have found legalized marijuana use, blacks and Latinos similar differences.29 Legislators seriously are more likely to be arrested for marijuana- interested in reducing traffic accidents should related offenses, such as possession as a consider lowering the permissible level of juvenile or public consumption, highlighting blood alcohol concentration. They might also the deeply ingrained nature of disparate law 36 crack down further on the use of cell phones enforcement practices. Still, the overall while driving, which quadruples the risk of an reduction in marijuana arrests that results accident. Texting while driving is estimated to from decriminalization will result in fewer be 6 times more likely to cause an accident people of color becoming ensnared in the than alcohol.30 criminal justice system.

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Some opponents of marijuana reform Cato Institute estimate that Texas spends have argued that very few people actually $330 million (2008 dollars) per year just on serve time in jail for marijuana possession. marijuana prohibition.40 That considerable This is increasingly true, in large part sum could be used to greater benefit because local jurisdictions are implementing if directed to such needs as education, alternatives to incarceration for low-level transportation, public health, human offenders. Still, the consequences of an trafficking, or to other reforms within the arrest and a criminal record can be severe. criminal justice system. Individuals with a criminal conviction Decriminalization could also improve often face difficulties finding employment. resource allocation for drug treatment. In They may lose or be barred from obtaining 2016, roughly half of admissions to publicly professional licenses, public housing, and funded treatment providers for marijuana educational assistance. Twelve states, use were criminal justice referrals, a pattern including Texas, revoke a person’s driver’s that has remained stable for 20 years.41 license for a criminal conviction for a People arrested for marijuana (and other period of six months to two years and drug) possession are often required to impose fees to get it back.37 Noncitizens undergo treatment, whether they need it can face deportation.38 The negative or not—and many do not. One study found impacts of a criminal record can extend that 74 percent of treatment participants beyond an individual, potentially affecting who had been referred through probation long-term outcomes for a person’s family or parole did not meet the criteria for and community. Disparate enforcement substance use or dependence.42 In an of prohibition means that all of these environment where resources are scarce, Decriminalization is a consequences are likely to fall more heavily mandating participation in treatment fairly modest policy on minority communities. It is because of the programs from people who do not severely negative consequences associated need, or desire, treatment can result in proposal that does with enforcement of prohibition, and their someone else who does need assistance not increase access disproportionate impact on minority youth being denied access or put on a waiting to marijuana or allow and young adults, that organizations such as list. And while more cautious supporters advertising for its use. the American Academy of Pediatrics and the of decriminalization may like to see American Public Health Association, which mandated treatment as an alternative to strongly oppose adolescent marijuana use, incarceration, imposing such requirements support decriminalizing marijuana possession can be a significant burden on individuals as a way to minimize the harms associated that complicates their lives and increases with its use.39 unnecessary contact with the criminal justice system. More Efficient Use of Resources This is not meant to suggest that Removing the criminal status of marijuana marijuana users are never in need of possession would mean federal, state, and treatment. Approximately 4 million people local governments would no longer need aged 12 or older, which is 1.5 percent of to spend money to arrest, process, and jail the U.S. population but 15.6 percent of defendants; to provide taxpayer-funded past-month users, are estimated to have a 43 legal counsel to indigent defendants; or to marijuana use disorder requiring attention. incarcerate convicted offenders or monitor But evidence suggests that people referred them through probation. to treatment for marijuana use through Most recent analyses of the economic the criminal justice system are actually benefits of marijuana reform focus on less likely to need it than people who legalization. Decriminalization, a more enter treatment for marijuana use through moderate policy, has more modest other channels. Fewer legal mandates economic potential. Still, decriminalizing for marijuana users to participate in drug can save significant dollars in enforcement. treatment could provide an opportunity to Jeffrey Miron and Katherine Waldock of the focus limited resources on people who have more serious substance use disorders. 8 THE CASE FOR MARIJUANA DECRIMINALIZATION

growing and selling marijuana remain illegal, CONCLUSION criminals decide what and to whom to sell, The issue of whether and how to and they get to keep the money, tax-free. reform marijuana laws has garnered Still, decriminalization is a major widespread public attention in recent improvement over prohibition, one that years. Decriminalization of possession for would reduce arrests and the collateral personal use has received considerably less consequences of a criminal record, reduce media and research focus than legalization racial disparities in drug law enforcement, of commercial marijuana sales. There and allow for more efficient use of taxpayer is some justification for this. Compared dollars. Research shows these gains can to legalization of a regulated marijuana be had without endangering public safety market, there is greater consensus or encouraging use. Decriminalization is about the possible impacts of marijuana a sensible, conservative policy proposal. decriminalization, which, many experts Perhaps this is why Gov. Greg Abbott and agree, would be relatively few beyond both major political parties in Texas have the intended reduction in marijuana expressed support for reducing penalties possession arrests. And as states continue for marijuana possession. A bill to do just to legalize marijuana for medical and adult that will come before the Texas Legislature sale and use, identifying the implications in 2019, and elected officials will have the of these more substantial policy changes opportunity to support a policy that is fiscally has become a more pressing issue. That prudent, socially just, and politically popular. decriminalization has been increasingly eclipsed by debates over full legalization may contribute to the tendency among ENDNOTES some of its opponents to conflate penalty 1. National Commission on Marihuana reduction for marijuana possession with and Drug Abuse, http://bit.ly/2mkmcaT. legalization of sales.44 This is unfortunate 2. Substance Abuse and Mental Health because decriminalization of possession Services Administration (SAMHSA), 2017 for personal use is a substantively different National Survey on Drug Use and Health. policy than legalizing the selling of marijuana 3. A system in which it is legal to in any form. A serious conversation about use marijuana but illegal to sell it creates the potential public health consequences of significant tension in the legal system; this creating a commercial market for marijuana paradox as it relates to the Dutch coffee is warranted. But decriminalization is a shop model, for example, has been written fairly modest policy proposal that does about extensively. See, for instance, https:// not increase access to marijuana or allow bit.ly/2TtLosp advertising for its use. The main goal 4. For information on CT marijuana of decriminalization is to remove the possession law, see https://bit.ly/2usnuU4. permanent damage that an arrest and For MD, see https://bit.ly/2JC8zRG. For OH, criminal record can have for an individual, see https://bit.ly/2HSLVlw. and to use public resources more efficiently 5. See Mississippi State Legislature, in the process. House Bill 272, 1998 Reg. Sess., http://bit. Decriminalization is not a perfect ly/2lEIaBk. policy. Under many decriminalization 6. Dan Solomon, “Could Texas schemes, people can still be arrested, and Decriminalize Pot in 2015?” https://bit. inability to pay the fines associated with ly/2HFJGmk civil penalties will result in incarceration for 7. Ross Ramsey, “Most Texas Voters some people, most likely minorities and the Want to Legalize Marijuana, UT/TT Poll poor. Decriminalization also fails to address Finds,” https://bit.ly/2KcDnIE. the needs of individuals who can benefit 8. Jay Wallis, “Travis County approves from the plant’s medicinal properties. Its new diversion class for marijuana greatest flaw, however, is that as long as offenders,” https://bit.ly/2U9grht 9 BAKER INSTITUTE REPORT // 04.16.19

9. Office of Harris County District 18. Office of National Drug Control Attorney, “Marijuana program participants Policy, “Improving the Measurement of given final opportunity to make things Drug-Related Crime,” 2013. right,” https://bit.ly/2YoUHxq. 19. Charles Ksir and Carl L. Hart, 10. Ibid. “Cannabis and Psychosis: A Critical Overview 11. Meagan Flynn, “Not Having $150 ‘No. of the Relationship,” Current Psychiatry 1 Reason’ Nearly 300 Have Failed Marijuana Report 18 (2016): iv. Diversion Program,” https://bit.ly/2CC7inV. 20. Ibid., p. 73 12. Mississippi State Legislature, H.B. 292. 21. Shana L. Maier, et al., “The 13. Carolyn Talmadge, “A Budding Implications of Marijuana Decriminalization Revolution or Destined for Flames? and Legalization on Crime in the United Determining the Effects of Marijuana States,” Contemporary Drug Problems 44 Legislation on Adolescent Prevalence Use (2017):125-146. Rates in the United States” (thesis, Tufts 22. Sarah-Jayne Blakemore, “Teenage University, 2014), http://bit.ly/2mkq5wz; Kicks: Cannabis and the Adolescent Brain,” Glenn Greenwald, “Drug Decriminalization The Lancet 381 (2013): 888-889. in Portugal” (Washington, D.C.: The Cato 23. Berenson, Tell Your Children. Institute, 2009); J. Fetherston and S. 24. Ksir and Hart, “Cannabis and Lenton, “A Pre-post Comparison of the Psychosis,” p. 1-12. : Impacts of the Western Australian Cannabis 25. See Jaeyoung Lee, et al., Infringement Notice Scheme on Public “Investigation of Associations between Attitudes, Knowledge and Use” (Perth: Marijuana Law Changes and Marijuana- National Drug Research Institute, Curtin Involved Fatal Traffic Crashes: A State-Level University of Technology, 2007). Analysis,” https://bit.ly/2YwQQPa. 14. Beau Kilmer, “Do Cannabis 26. See Robin A. Pollini, et al., “The Possession Laws Influence Cannabis Use?” Impact of Marijuana Decriminalization on Cannabis 2002 Report, Ministry of Public California Drivers,” https://bit.ly/2OwgSgz. Health of Belgium, pp. 100-124. 27. AAA Foundation for Traffic Safety, 15. Rates of past-30 day marijuana “Fact Sheet: Prevalence of Marijuana use were higher in the five states that Involvement in Fatal Crashes: Washington decriminalized compared to states that had 2010-2014,” https://bit.ly/1T2f2Sf. not, but this was true prior to marijuana law 28. See Robin Room, et al., Cannabis changes. Richard A. Grucza, et al., “Cannabis Policy: Moving Beyond Stalemate, http://bit. decriminalization: A Study of Recent Policy ly/2n45MVl. Changes in Five U.S. States,” https://bit. 29. For example, a 2016 meta-analysis ly/2FqnKYL. found an increased risk of 1.22 to 1.36 for a 16. Angela K. Kills, et al., “The Effects traffic crash involving marijuana, compared of Marijuana Liberalizations: Evidence to an average increased risk of 7.5 for fatal from Monitoring the Future,” https://bit. crashes involving alcohol. See Ole Rogeberg ly/2gWpj5A . and Rune Elvik, “The Effects of Cannabis 17. Perceived health risks of marijuana Intoxication on Motor Vehicle Collision use may play a greater factor in decisions Revisited and Revised,” Addiction 111 (2016): about whether to use than the drug’s 1348-1359. criminal status—see Eric W. Single, “The 30. See “Texting and Driving Accident Impact of Marijuana Decriminalization: An Statistics,” Edgar Snyder & Associates, Update,” Journal of Public Health Policy http://bit.ly/2lnIbOU. 10 (1989): 456-466—as may social norms 31. Texas Department of Public Safety, surrounding marijuana use, see Craig “The Texas Crime Report for 2017,” https:// Reinarman, et al., “The Limited Relevance bit.ly/1qmWejA. of Drug Policy: Cannabis in Amsterdam and 32. Mike Males and Lizzie Buchen, San Francisco,” American Journal of Public “Reforming Marijuana Laws: Which Health 94 (2004): 836-842. Approach Best Reduces the Harms of

10 THE CASE FOR MARIJUANA DECRIMINALIZATION

Criminalization? A Five-State Analysis,” AUTHORS Center on Juvenile and Criminal Justice, September 2014. William Martin, Ph.D., is the director of the 33. Ksir and Hart, “Cannabis and Drug Policy Program. He is also the Harry Psychosis,” p. 73. and Hazel Chavanne Senior Fellow in 34. American Civil Liberties Union, The Religion and Public Policy at the Baker War on Marijuana in Black and White (New Institute and the Chavanne Emeritus York: American Civil Liberties Union, 2013). Professor of Sociology at Rice University. 35. See Drug Policy Alliance, “From His research and writing focus on two Prohibition to Progress: A Status Report major areas: the political implications on Marijuana Legalization,” https://bit. of religion and the importance of the ly/2E2YJ4T. separation of religion and government, and 36. Ibid. ways to reduce the harms associated with 37. Brentin Mock, “Why is Pennsylvania drug abuse and drug policy. Still Suspending Driver’s Licenses for Drug Offenses?” https://bit.ly/2Yp0F1x. Katharine Neill Harris, Ph.D., is the 38. John Kelly, “Home and Away: DHS Alfred C. Glassell, III, Fellow in Drug Policy. and the Threats to America,” https://bit. Her current research focuses on the ly/2x2r1Ic. However, it is possible to obtain availability of drug treatment for an exception for a first offense involving at-risk populations, the opioid epidemic, possession of 30 grams or less of marijuana, and the legalization of medical and see https://bit.ly/2urtY5t. adult-use cannabis. 39. American Academy of Pediatrics, “The Impact of Marijuana Policies on Youth: Clinical, Research and Legal update,” https://bit.ly/2HSXyZU. 40. Jeffrey Miron and Katherine See more Baker Institute Reports at: Waldock, “The Budgetary Impact of Ending www.bakerinstitute.org/baker-reports Drug Prohibition” (Washington, D.C.: The This publication was written by a Cato Institute, 2010), 33. researcher (or researchers) who 41. Treatment Episode Data Set (TEDS): participated in a Baker Institute project. 2016, Admissions to and Discharges from Wherever feasible, this research is Publicly Funded Substance Use Treatment, reviewed by outside experts before it is https://bit.ly/2FBgIC4; Karen McElrath, et released. However, the views expressed al., “Black-White Disparities in Criminal herein are those of the individual author(s), and do not necessarily Justice Referrals to Drug Treatment: represent the views of Rice University’s Addressing Treatment Need or Expanding Baker Institute for Public Policy. the Diagnostic Net?” Behavioral Science 6 (2016): 1-15. © 2019 Rice University’s Baker Institute 42. S.P. Kubiak, et al., “Treatment at the for Public Policy Front End of the Criminal Justice Continuum: This material may be quoted or The Association between Arrest and reproduced without prior permission, Admission into Specialty Substance Abuse provided appropriate credit is given to Treatment,” Substance Abuse Treatment the author and Rice University’s Baker Prevention Policy 1(2006): 20. Institute for Public Policy. 43. SAMHSA, 2017 National Survey. Cite as: 44. The Texas Police Association Neill Harris, Katharine and William recently opposed decriminalization by Martin. 2019. The Case for Marijuana framing it within the context of commercial Decriminalization. Baker Institute legalization. See https://bit.ly/2U2Brr6, Report no. 04.16.19. Rice University’s https://bit.ly/2CEMHzd. Baker Institute for Public Policy. Houston, Texas.