After 45 years of petitions, changing federal marijuana law has proven difficult, but two drug policy experts have at least two different models of legalization that Congress might be able to get behind.
The case for empowering states:
Mark Kleiman, a professor of public policy and the director of the Crime Reduction and Justice Initiative at New York University's Marron Institute, proposes that the federal prohibition on marijuana remain in place but the state experiments with regulated adult markets should be formalized. The program could operate through state waivers, similar to welfare reform waivers. Kleiman adds that this could be easily adopted without requiring Congress to do much.
"There is a federal paraphernalia statute that says you can't sell water pipes and stuff unless they are legal in the state you're selling them in. Congress could create a waiver that says you can't sell marijuana unless you're in a state where it's legal," says Kleiman.
Kleiman's ideal plan, which has not been adopted, is a less extreme than full-blown commercialization. Kleiman's company, BOTEC Analysis, was contracted to advise Washington state regulators and rule-makers before legalizing marijuana for adult use. He believes states should make marijuana available to people for responsible use, as it would put an end to marijuana-related arrests, minimize drug abuse and block sales and marketing to minors. By contrast, he says full-blown commercialization--like what's in place in the alcohol industry--will be "dependent on dependent users" and free market forces will lead to companies maximizing profits by maximizing consumption. That, he says, is bad for the public.
More on Kleiman's state-waiver idea: the 25 states that have some form of regulated marijuana right now would get a waiver from the attorney general and the secretary of the Department of Health and Human Services. Of course, the states would need to present a plan to control abuse, diversion, underage consumption, and set rules like monthly quotas for customers and other factors.
Kleiman also proposes state-owned stores, a model some states have adopted for liquor stores. When states receive a waiver, they would have to agree to certain provisions like no more than 5 percent of the crop gets exported to other legal states, that the price doesn't fall below a certain threshold, and marketing of certain kinds are not allowed. Kleiman says the regulatory program would be expected to do just as well at preventing so-called cannabis-use disorders than prohibition.
"The reason why Congress might go with the waiver idea is so we are not locked in a single national commercial system before we know anything about the impacts of legalization," says Kleiman. "We should use the laboratory of the states to learn as much as we can about legalization."
The case for all or nothing:
John Hudak, senior fellow at the Brookings Institute, says federal prohibition has caused a range of serious problems for society, especially as minorities continue to be disproportionately effected by arrest and prosecution. The current model, where half the states have legalized some form of marijuana and the federal government has only made slight policy changes while keeping the drug in the same category as heroin, has created "incoherent public policy," he says.
State-legal marijuana businesses have to pay taxes under a tax code created for illegal drugs dealers, which doesn't allow them to take most traditional business deductions. Illegal marijuana businesses, rather, typically aren't forthright about the nature of their revenues, allowing them to circumvent these restrictions, Hudak says. The effect is legal marijuana business pay higher taxes and face an outsized financial burden compared to people in the black market. Further, employees of national companies can be fired for using marijuana legally. FDIC-insured financial institutions, credit card companies and payment processors are still apprehensive about serving the industry, which forces most businesses to conduct transactions in cash.
These issues encourage armed robberies and money laundering, says Hudak, who adds: "How do you justify that as effective public policy?"
As such, he proposes going further than just state-level reform. "You either have legal marijuana, or you don't," says Hudak. "I think the state-level reforms are important, but the right legalization model would give states some freedom, a range in which they can operate, but fix certain issues that are federal in nature, like banking and taxes and criminal justice issues. These issues have to be addressed in concert with state-level reforms. Otherwise, you get a nonsensical public policy that works to a limit and then no longer works."
While legalization is still hotly debated on Capitol Hill, Hudak points out that Congress has already tweaked federal policy. Consider the Rohrabacher-Farr Amendment, a federal spending bill rider passed in 2014, which prevents the Justice Department from interfering with state medical marijuana laws.
If the federal government wants to perpetuate certain aspects of prohibition, he says, it shouldn't let states reform. But since the federal government has tolerated state-level reform, Hudak argues, Congress has a responsibility to involve itself with reform.
"Coherent policy at the state and federal level is better than incoherent policy in every case, it's not unique to marijuana," says Hudak.
Why neither idea has taken root:
Kleiman says another pathway to legalization could be created if Congress writes an exemption for cannabis under the Controlled Substances Act. They would also have to write a separate law regulating cannabis, like Congress did with alcohol and tobacco. The chances of that happening soon is slim, he says.
"It's clear you can't get cannabis legalization through this Congress, but it's also clear you can't get cannabis prohibition through this Congress," says Kleiman. "The status quo bias makes it's hard to get anything through."
Fifteen years ago, public opinion was not in favor of legalizing marijuana. As attitudes and culture around drugs and policing change, politicians and citizens are questioning the merits and effects of President Richard Nixon's "War on Drugs."
"A lot of Americans, for the first time, are thinking about weighing the costs and risks [of prohibition and legalization] in a more sober way," says Hudak. "They are doing so through the lens of seeing experimentation around the country, not through the lens of government-controlled rhetoric through a drug war."
Perhaps the biggest obstacle to get around is the unknown:
"Forty years from now we will know if cannabis legalization was a good thing or not," says Kleiman. "There are too many effects, too many long-term things, too many cross interactions, too many unknowns. Everyone in the world says they know if cannabis legalization is a good thing or bad thing, except for the six of us who study it for a living."