Countdown to Election Series: Pioneering States Create Haze Around Marijuana Legality

This Election Day, Oregon, Alaska, and Florida have marijuana legalization on the ballot. Voters in Alaska and Oregon, where marijuana is already legal for medicinal use, will be asked about legalizing it for recreational use. Florida voters will be considering approval of marijuana for medicinal use.

Despite all the activity at the state level, marijuana is still an illegal, controlled substance under federal law, and that law is binding in all states. Until 1970, the drug was controlled through taxation, state law, and prescription requirements. In that year, Congress, through the Controlled Substances Act, banned marijuana outright, putting it in the highest category of narcotics for its potential for abuse and lack of accepted medical use.

The federal ban, combined with permissive state laws, can spell confusion for dispensary owners, users, city land use officials, and prosecutors across the United States. In minor cases, the federal government is simply looking the other way, directing its prosecutorial resources elsewhere. Meanwhile, states are embarking on their own experiments with legalization, independent of any federal authority and without consistent legal standards from one state to the next.

Graphics by Alvaro Bellolio

Beginning with California in 1996, a total of 20 states and the District of Columbia have legalized medicinal marijuana. This means that 39 percent of the nation’s population today lives under state law allowing doctors to prescribe marijuana.

Two of these states, Colorado and Washington, went a step further in 2012. They made the production and possession of certain quantities of marijuana legal not just for medical use, but for recreational use as well. Meanwhile, in eight more states, potential 2016 ballot measures are being drafted or circulated that would make marijuana legal for recreational use.

Explicitly or implicitly, federal policymakers have a choice to make about whether to (a) continue to look the other way, allowing these states and their residents to “legalize” and use marijuana in violation of federal law; (b) enforce federal drug laws evenly and rigorously; or (c) relax federal law to, at a minimum, allow policy experimentation by states. The more states have legalized marijuana on the books, the greater the consequences of these choices would seem to become in terms of upholding the rule of law, creating expectations among the parties involved, and enabling research-based best practices to be determined and implemented across states.

Whether or not the federal government acts to change its policies anytime soon, the measures on ballots this year and years to come seem to make one thing clear: the states’ experiments with legalizing marijuana are not over.

Feature Photo: cc/(elston)