In 1961, Harry J. Anslinger, America's first drug czar, published a book explaining why 24 years earlier, he successfully pushed Congress to pass legislation effectively criminalizing marijuana. "A sixteen-year-old kills his entire family of five in Florida, a man in Minnesota puts a bullet through the head of a stranger on the road; in Colorado [a] husband tries to shoot his wife, kills her grandmother instead and then kills himself. Every one of these crimes had been [preceded] by the smoking of one or more marijuana 'reefers'."
Today, we look back at this reasoning as silly. We know that consuming marijuana does not make a person want to kill. Yet our federal laws are still largely based on these misconceptions from more than 85 years ago.
We live during an interesting moment in American history on the issue of marijuana and whether it should be legalized. The issue is at the top of the policy agenda in the states, with 23 states having legalized recreational marijuana over the past 11 years. A large majority of Americans—68 percent, according to Gallup, support marijuana legalization, a transformational change from the 12 percent of Americans who supported legalization in 1969. Today, majorities of Republicans and Democrats alike support marijuana legalization.
When voters are asked why they support marijuana legalization, they give several reasons. First, voters today see marijuana enforcement as a drain on law enforcement resources. They don't believe that police should be arresting people for marijuana possession or that people should be incarcerated for it.
Second, they believe in marijuana's medical benefits. Voters agree with the American Academy of Family Physicians, the New England Journal of Medicine, and other medical associations that support legalizing marijuana for medicinal use.
They also don't need a medical degree to see the hypocrisy of legalizing alcohol and tobacco, which kill hundreds of thousands of people a year, while marijuana, which hasn't led to a single overdose death, remains illegal. They want marijuana to be regulated, and there are credible concerns regarding the current high potency of certain marijuana strains, but they don't believe it should be criminalized. The best way to control THC potency is through a regulated market.
Finally, voters also believe in the freedom to make personal choices on what to consume, as long as they don't harm others. As John Stuart Mill wrote more than 160 years ago in On Liberty, while government can "prevent harm to others...[o]ver himself, over his own body and mind, the individual is sovereign."
Yet despite this major shift in American attitudes, and despite legalization in nearly two dozen states, Americans continue to face handcuffs for possessing marijuana, and our federal laws continue to fail to meet the voters where they are—in support of marijuana legalization.
Let's start with the facts. In 2020, the most recent year of comprehensive data, police made 317,792 arrests for marijuana possession. That's an arrest for possession of marijuana for personal use every 99 seconds. Like everything else in the criminal legal system, the racial disparities in arrests are extreme. In 2020, Black people accounted for 38.8 percent of marijuana possession arrests, even though they consume marijuana in similar rates to white people and make up just 14 percent of the population. From 2010-2018, a Black person was 3.64 times more likely to be arrested for marijuana possession than a white person, despite similar usage rages.
President Biden campaigned on the promise of addressing this crisis through marijuana decriminalization. He raised expectations among those who believe that the war on marijuana should be over. And he has taken some important, yet limited, steps.
First, last October, President Biden announced that he would pardon prior federal offenses for possession of marijuana. It was a positive step forward. Never before had a president so explicitly acknowledged the failures of the war on marijuana. But it also did not help a single person in federal incarceration. Federal sentencing schemes tend to send people to prison for higher-level offenses that are far more complex than simple marijuana possession.
More recently, the Department of Health and Human Services recommended that marijuana be moved from Schedule I to Schedule III of the Controlled Substances Act, a process known as rescheduling. This move would have widespread implication for federal policy, including acknowledging that marijuana has accepted medical use and that the government no longer claims it has a high potential for abuse. It would also eliminate certain barriers to researching marijuana and according to the Congressional Research Service, those who manufacture, distribute and possess medical marijuana may be able to do so lawfully under the Controlled Substances Act. If adopted, this rescheduling would represent the biggest change in federal cannabis policy in more than 50 years.
But again, this move does not directly address the ongoing crisis of Americans ending up in handcuffs for behavior that the large majority of Americans believe should be legal. Moving marijuana to Schedule III will lead to little change in the criminalization of people who use marijuana for recreational purposes.
For example, rescheduling will not restore eligibility for public benefits such as housing and nutritional assistance for people who use marijuana recreationally (although federal agencies can issue guidance on discretionary enforcement). Rescheduling will also mean that noncitizens can still face deportation, ineligibility for citizenship, and bars to asylum for recreational marijuana-related activities. Moreover, state recreational marijuana programs will remain illegal under federal law, and state criminal laws against recreational use will remain in place.
Instead of tinkering around the edges, the White House and Congress should follow the will of the American people and pass comprehensive legislation to end the federal prohibition on marijuana. Such legislation should deschedule marijuana and also expunge past marijuana arrests and convictions, restore eligibility for public benefits, and reinvest in communities directly impacted by decades of racially discriminatory enforcement of our nation's marijuana laws. There are versions of these policy solutions in both the House and Senate.
The Biden administration has recognized that "too many lives have been upended because of our failed approach to marijuana." I agree. But now it's time to put the muscle of the White House behind this sentiment and to once and for all end the federal war on marijuana begun by Harry Anslinger more than 85 years ago.
It's what Americans, Republicans and Democrats alike, clearly want.
Udi Ofer is the John L. Weinberg Visiting Professor and Lecturer of Public and International Affairs at Princeton University. He is Founding Director of the Princeton Policy Advocacy Clinic and former Deputy National Political Director of the ACLU.
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
