Pubdate: Thu, 03 Dec 2015
Source: Orange County Register, The (CA)
Copyright: 2015 The Orange County Register
Author: Erwin Chemerinsky
Note: Erwin Chemerinsky is dean of the UC Irvine School of Law.


The time is long overdue for marijuana to be legalized by both 
federal and state governments. In 1971, I was a college freshman 
debater, and one of the issues was whether marijuana should be 
legalized. As I researched the topic, the arguments were 
overwhelmingly in favor of legalization, and it was difficult to put 
together a credible case for continued criminalization.

More than 40 years have gone by, and possession of marijuana remains 
illegal under federal law and in 46 states. Only Alaska, Colorado, 
Oregon and Washington have legalized possession of small amounts of marijuana.

The issue has garnered new public attention because Democratic 
presidential candidate Bernie Sanders has urged repeal of the federal 
law prohibiting marijuana, and Ohio voters last month decisively 
rejected an initiative to legalize marijuana in that state. Other 
states, including California, are likely to have initiatives to 
change their marijuana laws on the November 2016 ballots.

Contrary to what many believe, marijuana laws continue to be 
enforced. According to FBI statistics for 2013, 693,482 individuals 
in the U.S. were arrested and charged with marijuana violations, and, 
of these, 609,423, or 88 percent, were arrested for simple 
possession. There is an enormous cost in terms of law enforcement 
resources, the criminal justice system and people's lives for 
marijuana to remain illegal. Even for those arrested and never 
prosecuted or convicted, arrest records have real harms in terms of 
the ability to get jobs, loans, housing and benefits.

Like all drug laws, the prohibition against marijuana is much more 
likely to be enforced against African-Americans and Latinos than 
against whites. According to a 2013 study, whites and blacks use 
marijuana at roughly the same rates, but blacks are 3.7 times more 
likely than whites to be arrested for possession of marijuana.

Yet, there is little benefit to illegality. The primary argument for 
keeping marijuana illegal is that it is harmful. But as President 
Obama observed, pot is not "more dangerous than alcohol." Many things 
are harmful - cigarettes, foods high in sugar and salt and 
cholesterol - but that does not mean that they should be illegal. In 
fact, there is a good deal of evidence that marijuana is 
significantly less harmful than tobacco or alcohol and that it has 
benefits in treating some medical conditions, such as glaucoma and 
seizure disorders, and alleviating some of the ill effects of 
chemotherapy. In fact, 23 states, including California, and the 
District of Columbia allow medical use of marijuana.

Nor does prohibition of marijuana work. It is readily available, and 
an estimated 30 million Americans use it each year. Like the 
prohibition of alcohol in the 1920s, the prohibition of marijuana is 
a costly failure. In addition to the cost in enforcing the criminal 
laws, there is the loss of significant revenue that could be gained 
from taxation and legalization.

Truly legalizing marijuana in the United States is likely to require 
the actions of both the federal government and all state governments. 
If the federal government repeals its prohibition of marijuana, that 
will not change similar state laws. Likewise, state governments can 
repeal their marijuana laws, in whole or in part, but that does not 
change federal law.

States can have whatever laws they want with regard to marijuana. No 
state is required to have a law prohibiting or regulating marijuana. 
A state could choose to have no law prohibiting marijuana or a law 
prohibiting marijuana with an exception for medical use or a law 
allowing possession of small amounts of marijuana or anything else.

Still, possession of marijuana is a federal crime, and the federal 
government can choose to enforce its law however it chooses.

Similarly, if the federal government were to adopt Sanders' proposal 
and repeal the federal marijuana prohibition, states still could 
prohibit and punish the sale and possession of marijuana. But 
legalization by the federal government likely would be an impetus for 
more states to do so as well.

I think it is a question of when, not whether, marijuana becomes 
legal in the United States. A study by the Pew Research Center in 
April 2015 found that a majority of Americans favor legalization, and 
only 44 percent believe it should be illegal. Of those under 35 years 
old, 68 percent believe that marijuana should be legal. The rejection 
of the legalization initiative in Ohio likely was about how it was written.

Ultimately, the question is whether there is good reason to 
criminally prohibit individuals from being able to choose to use 
marijuana. It was clear in 1971, and even more apparent today, that 
laws prohibiting marijuana should be repealed.
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MAP posted-by: Jay Bergstrom