Uncle Sam Should Treat Pot Like Booze

FOLLOWING California’s legalization of marijuana for recreational use, Attorney General Jeff Sessions struck back with a memo restoring the prosecutorial status quo ante Obama, theoretically opening the door to more aggressive pot prosecutions. Legally, the AG is on solid ground. Practically, it’s likely to be a pointless exercise. Cannabis is a Schedule 1 substance under the federal Controlled Substances Act, along with such drugs as ecstasy, LSD and heroin. This makes possession and distribution a federal crime — even if state law permits it for medicinal use or recreational sale. Constitutionally, the feds would be on a firm footing if they prosecuted in a state that legalized. Under well-established supremacy rules, federal law trumps state law.

The trend, however, is strongly in favor of legalization. Seven states, including California (with over 12 percent of the nation’s population), plus Washington, DC, allow sale for pleasure. Twenty-nine states and DC permit medical sales. If Sessions can’t stem the tide, what will he accomplish?

The previous administration, realizing that the handwriting was on the wall, established a prosecutorial hierarchy. The 2013 Cole Memorandum, Justice Department guidance for federal prosecutors, listed priorities for US attorneys that skirted the conflict between state and federal law.

For instance, it directed federal prosecutors to go after pot distribution to minors, transfers of cannabis money to drug gangs and cartels, black market infiltration in states that hadn’t legalized and under-thetable sales of other drugs, such as heroin, by lawful marijuana merchants. This made a lot of sense, and might have led to federal and state/ local law-enforcement agents working together to prevent abuses in the legalization states. Now, however, Sessions has invited US attorneys to prosecute as they see fit.

One certainly can offer a defense for Sessions’ position, pointing to the possible negative consequences of pot legalization: more crime, more addiction, more DUI cases and road accidents, more use by underage teens and user escalation to other, more dangerous, drugs (the gateway theory). The research on escalation or gateway theory is ambiguous.

True, most hard-drug abusers started with pot, but also true that not every cannabis user graduates to more dangerous substances. As for the other horribles, we just don’t know whether they will occur as we haven’t ever done this sort of thing before.

Even if Sessions is right about the harmful consequences, it’ll take more than an office policy change by the attorney general to reverse the trend. If the Trump administration is unable to mount a successful crusade against the far more insidious threat from opioids, I can’t see a “not pot” campaign going very far.

Sessions can also argue that it’s time to end the hypocrisy of federal law without federal law enforcement. Good point. But the best way to achieve this is not to escalate federal prosecution. Instead, Congress should get the feds out of the pot business. Except where there’s a clear federal mandate — as with money transfers to gangs operating across state or international boundaries, or cannabis smuggling to prohibition states — why not leave cannabis regulation to the locals?

We can learn from the Noble Experiment with alcohol in the 1920s that when a substance is popular and widely used, though potentially harmful, regulation works better than bans. When Prohibition ended in 1933, state regulation replaced it. Did alcohol use increase? No. In fact, ingestion rates remained low until the 1970s. (Of course, Prohibition had already curtailed imbibing by padlocking saloons and driving up the price of beer and booze. And additionally, there wasn’t a lot of money for immoderations during the Great Depression.)

Importantly, the end of Prohibition also drove the alcohol distribution gangs of the ’20s to new markets. It’s likely that transitioning to regulation will lead to the displacement of most of the illegal marijuana-importation business by homegrown weed.

We should let the states decide whether and how to regulate pot, just as they do with alcohol. Those states that want to outlaw sale or possession altogether may do so, and those that want to license commercial sale or therapeutic use will be at liberty to experiment. Let’s end the hypocrisy and get the federal government out of the local aspects of the marijuana business.

Let the states decide whether and how to ’ regulate pot, just as they do with alcohol.