POLICY BRIEF 08.15.14

Marijuana Legalization and Decriminalization: A Paradigm Shift in Federal Policy Gary J. Hale, Nonresident Fellow in Policy and Mexico Studies

Good governance is about good especially with the costs outweighing the stewardship, and that means that benefits of incarcerating so many otherwise government executives should always look nonviolent offenders. at how best to use the government’s vast The paradigm has shifted, and assets, including personnel, money, and the public is no longer interested in materials. To this end, continued opposition demonizing marijuana, especially after by the Drug Enforcement Administration learning about the positive medicinal (DEA) to the legalization of marijuana is benefits of the substance. The tipping not only a losing battle, but also a waste point for this paradigm shift began with of taxpayer money—especially when the the state legislatures’ decriminalization president, the Congress, and nearly half and legalization of recreational use and of the state legislatures are responding to medicinal marijuana. These efforts were the will of the people by decriminalizing given a boost when President Obama nonviolent such as marijuana stated that marijuana is no more dangerous drug use and possession. Our federal tax than . While this assertion may dollars would be better spent by focusing be scientifically debatable, it nonetheless on responding to the current widespread provided validation to the legislatures increase of use in ways that will of those states that recently passed prevent continued abuse, reduce harm to decriminalization laws. Combined, these users, and provide greater public safety. moves provided a platform for the federal Marijuana One of the tools that policymakers in government to begin the slow process of decriminalization and government public safety and intelligence reversing federal policy regarding marijuana legalization have gone circles always seek to have in their toolbox enforcement, despite complaints from many is a predictive analysis or an over-the- in law enforcement. past being a trend horizon view of the landscape so that The first and perhaps most important and are settling in as resource decisions based on realistic threats indicator that demonstrates the public’s federal policy. can be developed. These analyses often disinclination to criminalize marijuana involve the combination of hard numbers, use was the decision by the states of such as dollars in the budget, and softer Colorado and Washington to legalize it for criteria that provide patterns and indicators, “recreational” use.1 to reach a strategic or policy decision. The second was Attorney General By using these same methodologies, an Eric Holder’s decision to stop prosecuting objective analyst can see a clearly emerging offenses related to medical marijuana picture: Marijuana decriminalization in those states where its medicinal use and legalization have gone past being a has been legalized. This was evidenced trend and are settling in as federal policy, in an August 29, 2013, memorandum RICE UNIVERSITY'S BAKER INSTITUTE FOR PUBLIC POLICY // POLICY BRIEF // 08.15.14

that separated the “seriously ill and their caregivers” from “for-profit commercial RECALIBRATION OF MARIJUANA enterprises,” stressing that the latter POLICIES is a more “appropriate target” for the Under the terms of the Controlled Substances 2 Drug Enforcement Administration. By Act, the DEA, in consultation with Congress issuing the memorandum, Holder took and other agencies, assigns to the first step toward realigning federal various “schedules” according to several drug enforcement policy. Soon thereafter criteria. Since the passage of the act in 1970, he also acknowledged that the national marijuana has been consigned to Schedule incarceration rate was out of control, I, the most restrictive category, because especially with regard to nonviolent it allegedly has “a high potential for abuse” offenders. The change is expected to cut and “no currently accepted medical use many federal drug sentences by an average in treatment in the United States.” Drugs of nearly two years, thereby reducing the in the less restrictive Schedule II include prisoner population and the costs associated , , , with those incarcerations. This was not only , and , the latter drug a pragmatic move, but a fiscally necessary being approximately 100 times stronger than one as well. morphine and exponentially more dangerous.4 From a policy point of view, the federal Like it or not, the DEA is fighting an government, especially the executive uphill battle by enforcing marijuana laws branch law enforcement agencies, needs in the face of a new era of understanding, to adopt and adhere to the directives of education, and public sentiment, all of which the legislatures and stop clinging to archaic represent a complete U-turn from the beliefs ideologies that are counterproductive and of the 1970s. The agency must accept that seen as authoritative and repressive. Our the American people, through their duly The DEA is fighting current federal policy regarding marijuana elected representatives, simply do not wish an uphill battle is schizophrenic and is regarded by the to have our federal government continue to international community as hypocritical. spend time, money, and resources fighting by enforcing The actions of Colorado and Washington marijuana laws in marijuana possession and use, especially state have also allowed several nations in light of the convincing evidence that the the face of a new to follow suit, most notably in Uruguay, substance provides epileptics, veterans with era of understanding, where marijuana legalization became PTSD, those suffering the pains of cancer, and education, and public national policy in 2012. Concurrent with others with alternative medicinal choices. the legalization of small, user-amounts sentiment, all of which Notwithstanding the enormous of marijuana, Colombia and Mexico contributions the DEA has made to public represent a complete have subsequently called for a review of safety since its inception in 1973, the agency U-turn from the beliefs international drug enforcement policies will be hard pressed to continue to ignore of the 1970s. to reassess whether marijuana should the autonomy of 23 states when it comes to continue to be afforded the same level this issue. It may also be time for the agency of enforcement effort as was previously to realign its strategic thinking, adjust its 3 given. Many nations are also taking note policies to adopt this new paradigm, and that despite the US government’s liberalized develop a new approach for dealing with policy accommodations for states that have marijuana legalization as a state issue rather decriminalized and legalized marijuana, the than a federal . US simultaneously holds its international Continued institutional resistance may law enforcement partners to a different jeopardize the vital relationship the agency and separate standard. These incongruities has with Congress and cause additional, translate into seemingly hypocritical policies seemingly punitive cuts from the DEA’s that must be reconciled if the US intends to budget. Already, DEA administrator Michelle maintain a leadership role for counter-drug Leonhart is under attack by some in matters around the world. Congress who are calling for her dismissal.5 Taking a career law enforcement agent 2 MARIJUANA LEGALIZATION AND DECRIMINALIZATION: A PARADIGM SHIFT IN FEDERAL POLICY

away from the helm of the agency and the appropriateness of marijuana as an into the hands of a non-law-enforcement accepted medicinal substance; the positive political appointee could lead to a solution and negative consequences of marijuana that may be far too permissive and sound as a recreational drug; the rescheduling the death knell for a strong counter-drug of marijuana into another category within advocacy in the federal government. The the Controlled Substances Act; and the DEA may have gone out on a proverbial impact of legalization on US obligations to limb when it reportedly criticized President international drug enforcement treaties. Obama’s assertions regarding the dangers of Special attention should be given to the 1972 marijuana, but looking back, it may well see Shafer Commission Report to determine that non-acceptance of public sentiment if any of its findings can be disputed or Finding ways to get may be more like a walk onto a gang-plank validated, given what has been learned that has adverse consequences not only on about marijuana in the last four decades.6 ahead of legalization the DEA but also on federal counter-drug and capitalizing on the law enforcement in general. Rescheduling Marijuana potential federal tax To this end, it may be in the best In April 2014, Holder stated that the Justice revenues would provide interest of all parties involved on either Department is disposed to work with the DEA with even more side of the issue to engage in a “time- Congress should the legislature wish to out” of sorts in order to reassess the reschedule marijuana into a less dangerous needed funding. merits of particular arguments, specifically but nonetheless regulated category within regarding medicinal marijuana, followed the Controlled Substances Act.7 Rescheduling by recreational use, followed by a review would not mean the government would of international norms regarding marijuana give free rein to the marijuana industry, but policy. Objective leadership must prevail it would mean that the federal government over archaic propaganda. at all levels is listening to the public and the Congress and, most of all, is making well- Moratorium on Marijuana Enforcement reasoned decisions that are not seemingly The DEA should agree to observe a one-year based on maintaining the status quo. It is also moratorium on the enforcement of federal in the best interests of DEA’s organizational marijuana laws in states where medicinal and political survival. marijuana has been legalized. This would be the first step toward establishing a Tax dialogue among opposing parties. This step Finding ways to get ahead of legalization would not be seen as a weakening of DEA’s and capitalizing on the potential federal law enforcement authority but more as a tax revenues would provide the DEA with strengthening of its public service mission even more needed funding. Similar to the by listening to the appeals of the public Diversion Control Fee Account generated and the state legislatures, all of which from the registration fees paid to DEA by have acted within the parameters of their physicians, pharmacists, and others, a individual state regulatory structures. Marijuana Tax Account could provide the agency with much-needed resources to Designation of a Marijuana Arbitrator confront drug-related terrorism and other The administrator of the DEA should, in more pressing drug threats.8 consultation with Congress, appoint Federal marijuana tax revenues could an independent arbitrator to establish include collecting a percentage of profits parameters for the reevaluation of the from the production and sale of cannabis three critical components of a possible or hemp products and from marijuana restructuring of US federal marijuana policy. derivatives such as oil and hashish. The DEA arbitrator should develop a panel It could also include importation taxes for of experts, including academicians, medical any marijuana that arrives in the US from and psychological professionals, jurists, outside its borders, possibly as part of diplomats, legislators, and others to review regional trade pacts such as NAFTA. 3 RICE UNIVERSITY'S BAKER INSTITUTE // POLICY BRIEF // 08.15.14

Provisional Federally Approved Dispensaries prosperous relationships based on objective, The federal government should take steps cooperative, and mutually beneficial to allow, on a noninterference basis, state agreements. government-approved medicinal marijuana This analogy is especially meaningful dispensaries by assigning established in the context of recalibrating federal marijuana research organizations to track, marijuana enforcement policy in the evaluate, and report on the benefits or US. There was a time in the 1960s and detriments of such facilities. 1970s when anyone who used marijuana was considered a radical, a , or Revision of International Treaties generally an anti-government sort. Social issues of the era, such as resistance to The attorney general, the secretary of state, US involvement in Vietnam, caused the the Congress, and several key international government to respond with draconian partners such as Canada, Colombia, Mexico, measures in an attempt to control the Jamaica, and others should appoint a It is time for our uncontrollable. Those measures included separate panel of diplomats and other designating marijuana as among the most government to do what experts to review current US compliance dangerous drugs in existence, when clearly is right and demonstrate to international drug enforcement treaty it is not, compared objectively to substances to the public and to the obligations with regard to marijuana and to such as heroin, methamphetamine, and make appropriate changes to those treaties world that democracy others, including some prescription drugs. or enact new treaties that take into account Many marijuana users were also works, and that the realities of current shifts in public views stigmatized and jailed, even though most democracy includes and international norms, as well as adjust, if presented no demonstrable threat to accepting the will of the necessary, conditions for US foreign aid with overall public safety or national security. regard to marijuana. Current US compliance In those days, our nation was extremely people through changes with marijuana regulation in treaties should made by duly elected conservative, paranoid, and fearful of include a review of the Single Convention suspected communists, drug users, anti-war legislative officials. on Drugs of 1961 as amended activists, and anyone who wore long hair or by the 1972 Protocol, the Convention on listened to rock music. Times have changed, Psychotropic Substances of 1971, and the and American society now accepts that United Nations Convention against Illicit people are different and those differences Traffic in Narcotic Drugs and Psychotropic account for varied forms of behavior and 9 Substances of 1988. dress. Not all “drug” users are the same. As a society, we have learned that our diversity is not to be feared but embraced as another CONCLUSION aspect of our social strength. Our federal government in its entirety Times change, people change, and what must adapt to these new norms as the was once the norm is no longer valid. There public already has. It must put aside pride was a time when Japan and Germany were and prejudices and instead take objective mortal enemies of the United States, and views and positions regarding the use of many lives from all three nations were lost marijuana as a medicinal substance, and as a result of World War II. However, as perhaps even as a recreational substance time passed, the three nations reconciled used as many use alcohol, and take steps their differences and adjusted to the new to normalize its approved use to cure realities of the postwar era. Nonetheless, numerous ailments that, from a purely many Americans who lived through the humanitarian point of view, would improve war experience vehemently resisted aid the quality of life of many who are suffering and assistance to the defeated nations and from various illnesses. fought against normalizing relationships US federal marijuana policy adjustment with those who had once been our mortal would also provide worldwide credibility to enemies. Over time, our combined societies our nation, instead of ridicule in the face adjusted to the new norms and developed of conflicting domestic and international 4 MARIJUANA LEGALIZATION AND DECRIMINALIZATION: A PARADIGM SHIFT IN FEDERAL POLICY

policies. It is time for our government to do 8. “Diversion Control Fee Account,” what is right and demonstrate to the public Drug Enforcement Administration Office and to the world that democracy works, and of Diversion Control, accessed August that democracy includes accepting the will 4, 2014, http://www.deadiversion.usdoj. of the people through changes made by duly gov/21cfr/21usc/886a.htm. elected legislative officials. 9. “International Drug Control Treaties,” United Nations Office on Drugs and Crime, accessed August 4, 2014, http://www. ENDNOTES unodc.org/unodc/en/treaties/index.html.

1. “23 Legal Medical Marijuana States and DC - Laws, Fees, and Possession AUTHOR Limits,” Medical Marijuana Pros and Cons, accessed August 4, 2014, http:// Gary J. Hale is a nonresident fellow in drug medicalmarijuana.procon.org/view.resource. policy and Mexico studies at Rice University’s php?resourceID=000881. Baker Institute for Public Policy. Hale is a law 2. Abby Haglage, “Will Congress Back enforcement and intelligence professional Medical Marijuana?” The Daily Beast, May 29, who retired from the federal government 2014, http://news.yahoo.com/congress- in 2010 after a 37-year career with various back-medical-marijuana-234423155-- intelligence community and federal law politics.html. enforcement agencies. His last position 3. Edward Fox, “Colombia Decriminalizes was chief of intelligence in the Houston Small Quantities of Cocaine, Marijuana,” Field Division of the Drug Enforcement InSight Crime, July 2, 2012, http://www. Administration. From 2011 to 2012, he served insightcrime.org/news-briefs/colombia- as the law enforcement-intelligence program decriminalizes-small-quantities-of- coordinator for the Merida Initiative at the US cocaine-marijuana. See more policy briefs at: Embassy in Mexico City. www.bakerinstitute.org/policy-briefs 4. “Controlled Substance Schedules,” Drug Enforcement Administration Office This publication was written by a of Diversion Control, accessed August 4, researcher (or researchers) who 2014, http://www.deadiversion.usdoj.gov/ participated in a Baker Institute project. schedules/index.html. Wherever feasible, this research is reviewed by outside experts before 5. Steven Nelson, “Congressmen: DEA it is released. However, the views Administrator Should Resign,” U.S. News & expressed herein are those of the World Report, January 29, 2014, http://www. individual author(s), and do not usnews.com/news/articles/2014/01/29/ necessarily represent the views of congressmen-dea-administrator- Rice University’s Baker Institute for completely-incompetent-should-assume- Public Policy. a-japanese-posture-and-resign. © 2014 Rice University’s Baker Institute 6. “Marihuana: A Signal of for Public Policy Misunderstanding,” report of the National Commission on Marihuana and Drug Abuse, This material may be quoted or 1972, http://sonofliberty.wordpress.com/ reproduced without prior permission, provided appropriate credit is given to the-shafer-commission-report/. the author and Rice University’s Baker 7. Ryan J. Reilly, “Eric Holder ‘Cautiously Institute for Public Policy. Optimistic’ About Marijuana Legalization in Washington and Colorado,” Huffington Post, Cite as: April 15, 2014, http://www.huffingtonpost. Hale, Gary J. 2014. Marijuana com/2014/04/15/eric-holder-marijuana- Legalization and Decriminalization: A Paradigm Shift in Federal Policy. legalization_n_5148663.html. Policy Brief no. 08.15.14. Rice University’s Baker Institute for Public Policy, Houston, Texas.

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