Making Pot Legal: We Can Do It – Here's How

by Paul Armentano
by Paul Armentano

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Changing public opinion about pot isn't easy. Changing America's anti-pot laws is even harder – here's a blueprint to get it done.

This month marks my 13th year working for marijuana law reform. During this time I've witnessed many successes and many more signs of progress. Nevertheless, it remains frustratingly clear that despite sincere efforts and millions poured into campaigns, very little headway has been made toward attaining the larger, essential goals of the movement – specifically, abolishing the criminal laws that result in the arrest and prosecution of more than half a million Americans every year for possessing even small amounts of herb and establishing a framework for regulating legal access to marijuana to adults.

Is either one of these goals achievable? Certainly. Is either goal realistic? Not until we as a movement instigate significant shifts in both public attitude and political opinion.

Identifying the problems

For several decades, various organizations have pushed for the establishment of a legal and regulated market for adult cannabis use in the United States. Yet, despite extensive educational efforts and millions poured into various legislative campaigns, it's consistently been shown in opinion polls and at the voting booth that only between a third to 46 percent of Americans endorse legalizing the personal use of cannabis for adults.

As a result, the marijuana law reforms that have been enacted over the past several decades have been limited in scope. Specifically, these legal reforms fall into two distinct categories: "decriminalization" (exempting adult cannabis users from incarceration, but not necessarily arrest, under specified circumstances) and "medicalization" (exempting certain state-authorized medical marijuana patients from state-specific criminal sanctions). To date, 12 states – almost one-third of the U.S. population – have enacted limited versions of "decriminalization." Twelve states have also adopted various versions of "medicalization."

Both of these concepts – unlike legalization – enjoy majority support from the public, with national polls consistently finding that roughly 60 percent of Americans back "decriminalization" and nearly eight out of ten support the medical use of pot under a physician's supervision. But political support for these reforms has been historically weak, limiting the extent of their implementation.

In order to effectively move the debate forward, there has to be a clear sense of why – despite years of public outreach – we have failed to persuade a majority of the public that broader pot law reforms are needed. In addition, we must also identify why – despite years of lobbying – we have failed to persuade a majority of politicians that even incremental reforms are needed.

Changing the political landscape

All hot-button political issues – most notably the struggle for "gay rights," immigration reform, and reproductive autonomy – have faced significant political opposition, particularly from "conservative" or "right-wing" legislators. Similar political antipathy (e.g., opposition from religious or so-called "pro-family" organizations) has obstructed sensible federal marijuana law reforms. Why are political leaders typically unwilling to embrace marijuana law reform as a core, civil rights issue, and what must be done to change this? Below are four suggestions.

Media complacency

Mainstream media coverage of the cannabis issue is often inaccurate and rarely criticizes government policy. Alarmist stories about the alleged dangers of pot often get widespread coverage while evidence that refutes these claims is minimized or ignored. Finally, news reporters typically give greater credence and coverage to government officials espousing the need to maintain the "status quo" while granting far less weight to experts who disagree.

To combat this media bias, pot reformers must do a better job providing consistent and resonant messages to reporters, as well as establishing long-lasting, personal relationships with key journalists and opinion makers. Advocates could consider dedicating resources for print and media advertising campaigns to offset the federal government's anti-drug advertising budget, which annually spends some hundred million dollars in taxpayers' dollars and matching funds to buy television and radio commercials warning about the alleged dangers of pot.

Law enforcement opposition

The law enforcement community is a multifaceted and persuasive lobby group that holds tremendous sway with politicians. More than any single interest group, cops are the most vocal opponents – in the media and as witnesses at government hearings – of all aspects of marijuana law reform. In addition, law enforcement typically continues to oppose pot liberalization policies even after such policies have become law – thus making their implementation that much more difficult (and, often times, less effective). For example, legislation passed last year in Texas allowing police to ticket, rather than arrest, minor marijuana offenders has thus far been implemented in only one county – despite having been passed nearly unanimously by state politicians.

The drug law reform movement must engage in greater and more active outreach within the law enforcement community. While some groups are already engaging in such efforts, these actions too often rely on the recruitment of retired members of law enforcement and the criminal justice community. Only by recruiting active members of law enforcement can we begin to build necessary credibility and support among politicians, and provide a persuasive counter to the lobbying activities of various state and federal criminal justice associations.

Victims of pot prohibition lack a public face

While there are countless victims of marijuana prohibition – over 10 million Americans have been arrested for violating U.S. pot laws since 1990 and an estimated 45,000 of them now sit in state or federal prison – there are few if any publicly recognized "poster children" that embody the excesses of the government's war on weed. Without parading the images and stories of sympathetic victims of various ages, races, and economic strata before the public, most Americans are unlikely to be convinced that the country should amend its pot laws.

Marijuana law reform is often presented by the activist community as a broad political concept (e.g., "Hemp can save the planet!"). It is not. At its core level, it is an effort to bring civil justice to millions of Americans who have been targeted, persecuted, and in many cases, have had their lives ruined for no other reason than the fact that they chose cannabis rather than alcohol to relax.

The harsh penalties associated with a minor marijuana arrest are rarely attacked as extreme or counterproductive. These sanctions include probation and mandatory drug testing, loss of employment, loss of child custody, removal from subsidized housing, asset forfeiture, loss of student aid, loss of voting privileges, loss of adoption rights and the loss of certain federal welfare benefits such as food stamps.

Thousands of Americans suffer such sanctions every day – at a rate of one person every 38 seconds. Our movement must do a better job of humanizing this issue to the public by emphasizing the personal stories and tragedies endured by the millions of individual Americans who have suffered unduly and egregiously under criminal prohibition. We must also do a better job of recruiting high-profile celebrities and human rights advocates to publicly speak out on these victims' behalf.

Victims of pot prohibition lack sufficient political or financial resources

Criminal marijuana enforcement disproportionately impacts citizens by age. According to a 2005 study commissioned by the NORML Foundation, 74 percent of all Americans busted for pot are under age 30, and one out of four are age 18 or younger. Though these young people suffer the most under our current laws, they lack the financial means and political capital to effectively influence politicians to challenge them. Young people also lack the money to adequately fund the drug law reform movement at a level necessary to adequately represent and protect their interests.

Marijuana enforcement also disproportionately impacts citizens by race. According to NORML's 2005 report, adult African-Americans account for only 12 percent of annual marijuana users, but comprise 23 percent of all marijuana possession arrests in the United States. In some jurisdictions, such as New York City, minorities comprise more than 80 percent of all individuals arrested for pot offenses. However, despite the law's disproportionate impact on minorities, marijuana law reform is seldom portrayed as a racial equality issue.

The marijuana law reform movement must do a better job of engaging with organizations working toward racial equality to properly convey to politicians and the public that this issue is about racial justice and fundamental fairness. Additionally, reformers must do a better job allying with organizations that speak on behalf of youth, particularly urban youth – who are most at risk of suffering from the lifetime hardships associated with a marijuana conviction. Finally, reformers must reach out to the parents of young people and urge them to become active members of the cannabis law reform movement, which needs the majority of parents to join its ranks as both financial contributors and as political advocates in order to gain the political support necessary to bring about a change in the country's pot laws.

Changing the public's mindset

A strong majority of Americans – nearly 75 percent – say that they oppose jailing pot offenders, yet fewer than 50 percent support regulating cannabis so that adults no longer face arrest or incarceration for engaging in the drug's use. Why this apparent paradox? In large part, this ambivalence may be a result of the shortcomings of the drug law reform movement.

Though historically reformers have been effective at presenting persuasive arguments critical of prohibition's failings, we as a movement have devoted far less time and resources educating the public to the numerous societal benefits offered by the alternative: allowing states the option to restrict, tax and regulate the use and sale of marijuana in a manner similar to alcohol. The focus must change. It is time for the drug law reform movement to move beyond offering criticism and begin providing solutions. If our solution is a model of legalization – with state-mandated age controls and pot sales restricted to state-licensed stores – then we must begin to consistently and repeatedly articulate the details and advantages of this alternative to the public.

Finally, in order to move public support for such a regulated system above 50 percent, the marijuana law reform movement must adequately identify those demographic groups – such as parents of teenage children and/or women – that tend to voice lower support for legalization as compared to other populations, such as "twenty-somethings" or college educated males. (Notably, a 2006 poll by NORML found that, among all age groups polled, the least amount of support for regulating pot was among those aged 30 to 49!) Once these groups are properly identified, reformers must create distinctly tailored messages and talking points to effectively target their unique concerns. I've listed three of these concerns, as well as suggestions for how best to respond to them, below.

Legalizing cannabis like alcohol will increase teens' access and use of pot

One of the great ironies of prohibition is that criminalization's proponents allege that the existing policy is one of drug "control." In fact, prohibition is just the opposite.

Cannabis prohibition is responsible for driving the production, sale and use of marijuana underground. Under the current system, clandestine marijuana suppliers produce pot of unknown quantity and sell it in an unrestricted market to customers of any age. By contrast, a regulated and restricted system would limit the supply of cannabis to young people, while bringing the production and sale of pot for adults within the framework of an above ground, readily accountable marketplace. As reformers, we need to stress to parents that it is only through the implementation of marijuana legalization that they can begin to regain the sense of control that they have lost under the existing anarchic regime.

Legalizing cannabis like alcohol will send a public a message that pot is "OK"

Of all the concerns commonly expressed by the public, fears that marijuana regulation will imply that pot is "OK" may be the easiest to respond to. Why? Because compared to the use and abuse of other legal intoxicants – most notably alcohol and tobacco – the responsible use of marijuana is, by typical societal standards, "OK." Pot lacks the dependence liability of tobacco or booze and, unlike alcohol – or even aspirin – marijuana consumption is incapable of causing a fatal overdose. According to government survey data, the majority of Americans who use pot do so intermittently – not daily – and most voluntarily cease their habit by time they reach their early 30s. (Compare this use pattern to most people's use of cigarettes, a habit that often continues unabated throughout one's lifetime.) Of course, inhaling marijuana smoke over time may be associated with certain pulmonary risks, such as wheezing and chest tightness. However, most of these adverse effects can be mitigated by vaporizing cannabis – a practice that heats marijuana to a temperature where active cannabis vapors form, but below the point of combustion.

It is time for marijuana law reformers to embrace rather than dispute the notion that the responsible use of cannabis by adults falls well within the ambit of choice we permit individuals in a free society. Reformers shouldn't be afraid to educate the public as to the relative safety of cannabis, particularly when compared to the use of other common intoxicants. Recently, a regional education campaign comparing and contrasting pot use with alcohol launched by the group SAFER (Safer Alternative for Enjoyable Recreation) resulted in a majority of Denver voters electing to do away with minor marijuana law enforcement within the city's limits. The enactment of a similar marijuana "image enhancement" campaign by reformers on a national level would arguably result in a significant increase in public support for broader legalization.

Legalizing cannabis like alcohol will lead to an increase in incidences of drugged driving

According to a 2007 Zogby poll of over 1,000 registered voters, only 36 percent of respondents agreed with the statement, "Should marijuana be legally taxed and regulated like liquor, tobacco or gambling?" By contrast, 44 percent of these same respondents voiced support for legalization "if police had a roadside impairment test for marijuana like they have for alcohol." In other words, the public's concern about traffic safety significantly impedes their support for broader cannabis legalization. Reformers need to address this public concern by offering potential solutions to mitigate incidences of driving while impaired by cannabis.

For example, the marijuana law reform movement should encourage the development of educational or public service campaigns targeting drugged driving behavior. Such campaigns should particularly be aimed toward the younger driving population age 16 to 25 – as this group is most likely use cannabis and report having operated a motor vehicle shortly after consuming pot. Reformers should also encourage additional funding and training for DREs (drug recognition experts) to better identify drivers who may be operating a vehicle while impaired by marijuana. Finally, the development of cannabis-sensitive technology to rapidly identify the presence of THC in drivers, such as a roadside saliva test, would provide utility to law enforcement in their efforts to better identify potentially intoxicated drivers. Reformers' endorsement of these and other traffic-safety specific campaigns will increase support among the public (and arguably law enforcement) in favor of regulating cannabis by assuaging their concerns that such a policy would potentially lead to an increase in drugged driving activity.

The long-expressed goals of the marijuana law reform movement to end the arrests of responsible adult pot smokers and enact a regulated system of cannabis access and sales are achievable. However, these goals will continue to remain unattainable unless this movement begins to better address the political and public hurdles that have plagued it for more than 30 years.

February 13, 2008

Paul Armentano [send him mail] is the senior policy analyst for NORML and the NORML Foundation in Washington, DC. He is the author of "Emerging Clinical Applications for Cannabis and Cannabinoids: A Review of the Scientific Literature" (2007, NORML Foundation).

Copyright © 2008 Paul Armentano

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