Friday, September 19, 2014
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Philly420: What would federal marijuana legalization look like?

File photo of Marijuana plants on display for sale at the medical marijuana farmers market at the California Heritage Market in Los Angeles, California July 11, 2014. (David McNew / Reuters files)
File photo of Marijuana plants on display for sale at the medical marijuana farmers market at the California Heritage Market in Los Angeles, California July 11, 2014. (David McNew / Reuters files)

The New York Times editorial board has added fuel to the fire in the national conversation about marijuana. It has called for a "repeal" of federal cannabis prohibition.

The piece included much of the same language and positions many of us took during the Smoke Down Prohibition protests last year right here in Philadelphia. 

The White House and many politicians currently seem to favor a "state's rights" approach. They cite the new recreational markets in Washington and Colorado, the medical marijuana laws in more than 20 states, and the decriminalization ordinances across the country as useful "experiments."

But the Times is correct to focus on federal reform. Until the federal government comprehensively changes position, the states will never truly be able to craft reasonable, local policies.

Gov. Chris Christie used federal law as the backdrop for strangling the New Jersey medicinal cannabis program. If he ever gains a position in the White House, even as U.S. Attorney General, all state-level marijuana laws will be under attack. 

State legislators in Pennsylvania, most notably Gov. Corbett, also constantly hide behind the Controlled Substances Act (CSA) as an excuse for stagnancy instead of action.

Marijuana is listed in Schedule I of the CSA alongside heroin and defined as "drugs with no currently accepted medical use and a high potential for abuse." Substances like cocaine, oxycodone, Adderall, Ritalin and even methamphetamine are in Schedule II (legal but heavily regulated) and manufactured for a huge profit by big pharmaceutical companies. 

It is very important to note that tobacco and alcohol were never put into the CSA framework. 

States have individual CSAs that follow the federal model. Two states have rescheduled marijuana: Iowa and Oregon. The move was taken to allow for compassionate medical use.

After an arduous petition process by some tenacious citizens, the Food and Drug Administration recently took up a new study on the possibility of rescheduling marijuana nationwide. The FDA will likely take several years looking at the concept.

But moving it down in the CSA scheme is not the answer. There is a more comprehensive approach. 

It was a Republican constitutional scholar and two-term Pennsylvania governor who tried to stop this mess before it started. Raymond P. Shafer was appointed by President Nixon to oversee a blue-ribbon commission in 1970 to determine where marijuana belonged in the CSA. 

After extensive study, his team came to a unanimous decision summarized in their 1972 report: Cannabis should be completely removed from the Controlled Substances Act and possession should be treated (at most) with a civil fine. 

Shafer saw that prohibition enforcement would come down hard on minorities, mainly African-Americans and Hispanics. 

His commission also recognized that marijuana had been used as a legitimate medicine for hundreds of years. They went further in realizing that cannabis dependence didn't quite fit the definition of "addiction." 

There was also a more fundamental issue: the American ideal of liberty itself. The most philosophical section of the report reads:

A constant tension exists in our society between individual liberties and the need for reasonable societal restraints. It is easy to go too far in either direction, and this tendency is particularly evident where drugs are concerned.

We have guided our decision-making by the belief that the state is obliged to justify restraints on individual behavior. Too often individual freedoms are submerged in the passions of the moment, and when that happens, the public policy may be determined more by rhetoric than by reason... 

... A premium is placed on individual choice in seeking self-fulfillment. This priority depends upon the capacity of free citizens not to abuse their freedom, and upon their willingness to act responsibly toward others and toward the society as a whole. Responsible behavior, through individual choice, is both the guarantor and the objective of a free society. 

Shafer and the commission also saw an issue with different laws around the country. In 2014 the patchwork of marijuana policies from state-by-state, or in places like Pennsylvania, county-by-county, are a big problem both for consumers and local governments. 

In Pittsburgh you will get a written summons for possessing up to 30 grams of weed; in Philly you get handcuffs and a holding cell. A joint containing the finest organic strain of indica may be fully legal in Colorado, but if you get caught with it in on federal land (like a national park) you could end up serving two years of federal probation and being fined $3,000.

In 1972 there was a clear answer, one that should be followed today:

The administration of all marihuana laws must be mutually reinforcing so that total governmental response to marihuana is both equitable and understandable.

The full Shafer Commission report "Marihuana: A Signal of Misunderstanding" should be required reading for all politicians, public servants and journalists. Here's a link. 

In the 1970's there was no real concept of regulating cannabis for sale to adults. There seemed to be an assumption that all of it would simply be grown at home by individuals. But today there is a more comprehensive understanding of a retail environment for the plant and its products.  

So what would federal legalization really look like today?

First off, relying on Congress to undertake the effort on its own is a non-starter. President Nixon started modern prohibition and it will take a President to repeal it. The Office of National Drug Control Policy is a portion of the White House. 

The President starts the process of descheduling marijuana by writing a "petition" to the Department of Health and Human Services. After required back and forth, the measure is brought before corresponding committees in Congress. 

There would be some input from federal agencies like the National Institutes of Health and the Drug Enforcement Administration. But they wouldn't be able to stop it. Only the president - with or without Congress - has the power to make the change.

Once cannabis is out of the CSA and alongside alcohol and tobacco, the states can begin regulating both marijuana and hemp as valuable, locally produced resources. Some may not follow the Colorado model right away. Utah still has some pretty tough local restrictions on drinking. But if the feds took up this kind of change then it would be unconstitutional to continue to criminalize marijuana consumers.  

Moreover, as Raymond Shafer saw it, reasonable marijuana laws are not just for those who consume it; they are important for the freedom of the entire country.  

It also could have a major impact beyond our borders. Much of the world's draconian cannabis policies are modeled after and even dictated by the United States 

President Obama would be wise to enact this reform. Doing something to stop the arrest of more than 700,000 Americans every year - while giving a massive boost to the taxable economy of the nation - is not only achievable but vital. 

Chris Goldstein smoked his first joint in 1994 and has been working to legalize marijuana ever since. He serves on the Board of Directors at PhillyNORML has been covering cannabis news for over a decade. Contact Goldstein at chris@freedomisgreen.com or on Twitter @freedomisgreen.

Chris Goldstein
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