The interplay between state and federal marijuana law

Marijuana

Medical Marijuana:

The Interplay between State and Federal Law

History of Criminalization

The Current War on Drugs

Political Issues

The legal status of medical marijuana in the United States is something of a paradox. On one hand, federal government has placed a ban on the drug with no exceptions. On the other hand, over one-third of the states have that legalizes the cultivation, distribution, and consumption of the drug for medical purposes. As such, the usage of medical marijuana is an activity that is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation).

This analysis will provide a recent overview on this unprecedented nebulous zone of legality in which an activity is legal and illegal (depending on the authority), an issue that one scholar on the subject has deemed "one of the most important federalism disputes in a generation." The issue has become heightened as two states have legalized marijuana for recreational (non-medical) purposes as a result of recent 2012 Election.

Furthermore, this project will examine the issue from a federalism perspective. I will attempt to review the federal government's constitutional authority to enact federal criminal prohibition on marijuana. This analysis will highlight certain principles of federalism that prevent the federal government from mandating that states participate in enforcing federal prohibitions. This research will also consider the current unresolved questions relating to the extent to which state authorization and regulation of medical marijuana are preempted by federal law. The paper will conclude with an assessment of what obligations does the Department of Justice has to investigate and prosecute violations of federal prohibition on marijuana.

History of Criminalization

The controversy associated with the ongoing effects of the drug war, have been consistently mentioned throughout the public discourse since marijuana was initially banned in 1937 though the Marijuana Stamp Act. This was preceded by the prohibition on alcohol which was in effect from 1920 until 1933, which was also deemed a failure. Then in the 1960s, as drugs became symbols of youthful rebellion, social upheaval, and political dissent, the government halted scientific research to evaluate their medical safety and efficacy (Drug Policy Alliance, N.d.). The regulation of illicit substances finally escalated in the late 1960s when American soldiers began returning home from the Vietnam War and were addicted to heroin or other hard drugs which eventually prompted President Richard Nixon to declare an all-out "War on Drugs."

The War on Drugs became a popular political issue and the "war" was accelerated throughout the next few decades with each new round of politician claiming to fight even harder to curb drug use. One of the most notable cases was when President Ronald Reagan initiated the South Florida Drug Task force which was then headed by then Vice-President George Bush, in Miami, Florida in 1981. At the time, Miami was the primary entry point for the black market that would illegally import cocaine and marijuana which would then be transported throughout the country. Much of the task forces activity was highly dramatized and media portrayals of people addicted to the smokeable form of cocaine dubbed "crack" and soon after Ronald Reagan took office in 1981, his wife, Nancy Reagan, began a highly-publicized anti-drug campaign, coining the slogan "Just Say No (Drug Policy Alliance, N.d.) "

The Current War on Drugs

In the last century, the United States governments criminalizing different substances that they fell are against the public good or sometimes moral obligated to regulate. Different substances have been classified as drugs because they can be mind or mood altering. In the last few decades the criminalization of drugs has escalated to all-out "war" on drugs. Today in the United States, according to the Bureau of Justice Statistics, 55% of federal prisoners and 21% of state-level prisoners are incarcerated on the basis of drug-related offenses which represents an incarcerated population greater than the population of Wyoming; the federal government is spending over twenty-two billion dollars alone on a so-called war that 76% of the population view as a failure (Head, Key Facts About the War on Drugs, N.d.). However, the "war" has become so unpopular with the American population that President Obama was actually the furst president that stopped referring to the criminalization of people for drug charges as the "war on drugs."

With the exception of so-called hard drugs, the controversy associated with the ongoing effects of the drug war, on the lesser drugs, such as marijuana, alcohol, and tobacco have been consistently debated in the public discourse since marijuana was initially banned. Marijuana was officially banned in 1937 though the Marijuana Stamp Act which was politically motivated as a tool to help control the Mexican immigrant population. This was preceded by the prohibition on alcohol which was in effect from 1920 until 1933, which was also deemed a failure. The regulation of illicit substances finally culminated in 1968, when American soldiers began returning home from the Vietnam War addicted to heroin which eventually led President Richard Nixon to declare an all-out "War on Drugs."

The War on Drugs was accelerated throughout the next few decades with each new generation of political leadership. President Ronald Reagan launches the South Florida Drug Task force which was headed by then Vice-President George Bush, in response to the city of Miami's demand for help. In 1981, Miami was the financial and import central for cocaine and marijuana. As a result of the task force, drug arrests and drug seizures were at an all-time high which gave the public a sign that the war was being won. However, what the public didn't realize is that even with the record number of arrests, the presence of drugs in the country was still expanding exponentially. When the government would put one drug dealer behind bars, two more would pop up. Despite the "War on Drugs" best efforts, the drug problem in the United States has still steadily expanded.

Political Issues

The United States has less than 5% of the world's population but it has almost a quarter of the world's prisoners (Liptak, 2008). The sheer numbers of prisoners that are housed in the United States is simply staggering when contrasted to what is found in the countries in the rest of the world. For example, China has more than four times the population of the United States and still only has roughly two thirds of the total prison population that the United States has. Russia is also perceived as being a country that does not tolerate crime and is the second nation in terms of prisoners per capita is Russia with 627 prisoners per 100,000 people. However, Russia is second to the United States who has the highest rate per capita at 751 people in jail or prison per 100,000 people. The per capita rates of other industrialized countries are even more revealing with England's rate at 151 per 100,000, Germany's is 88, and Japan's is 63. By contrast, Japan has over ninety percent less of its public incarcerated than the United States.

Not only is the U.S. prison system "out of control" compared to world standards, keeping such a larger prison population also comes at a hefty price to the American population. The federal government is spending over twenty-two billion dollars alone on a so-called war that 76% of the population views as a failure (Head, Key Facts About the War on Drugs, N.d.). The "war on drugs" and the related spending has been so unpopular with the majority of the public that President Obama was actually the first president who stopped referring to the criminalization of people for drug charges as the "War on Drugs." However, not promoting the "War on Drugs" to the American public has not yet had any real implications for political action. Criminal correction spending is outpacing budget growth in education, transportation and public assistance, based on state and federal data; only Medicaid spending grew faster than state corrections spending, which quadrupled in the past two decades, according to the report by the Pew Center on the States (Laudanon, 2012). In a true democracy, public policy should mirror public opinion, or at least come close to it, however, if the case of the prison epidemic and the war on drugs there is a great divide in public policy and public opinion.

Discussion

The conflict between state marijuana legalization and the blanket federal marijuana prohibition of the Controlled Substances Act (CSA) has created a federalism crisis in which the duties of state officials to adhere to state or federal law are unclear (Schwartz, 2013). Since 1996, sixteen states have passed new laws legalizing the drug for certain medical purposes. All the while, the federal government has remained committed to zero-tolerance, prohibiting the possession, cultivation, and distribution of marijuana for any purpose (Mikos, 2012). The use of marijuana is widespread. In 2012, an estimated 18.9 million individuals in the United States aged 12 or older (7.3% of this population) had used marijuana in the past month; the rate of reported marijuana use in 2012 was significantly higher than those rates reported prior to 2007 and the trend is expected to keep growing (Sacco & Finklea, 2013).

Although the U.S. Supreme Court has established Congress's constitutional authority to enact the existing federal prohibition on marijuana, principles of federalism prevent the federal government from mandating that the states actively support or participate in enforcing the federal law (Garvey, 2012). However, this creates a state of conflict between the laws on the different levels of government. Obviously this contradiction cannot be perpetuated forever and some resolution must enact to make a coherent set of standards for the regulation of marijuana for both medical and recreational use in the states that support these practices.

From a federalism perspective, the unpredictable enforcement by federal authorities in states that have legalized medical marijuana not only threatens state drug policy, but also the efficacy of federal enforcement; the argument is based on the premise that the federal drug ban exists as a cooperation between the states and the federal government (Grabarsky, 2013). The federal and state enforcement agencies must cooperate to enforce the drug laws and the conflicting laws create complexities that are difficult to overcome. Ninety-nine percent of drug-related investigations and arrests are carried out by state agents; furthermore, federal enforcement in a state where the medical marijuana is legal antagonizes the state authorities to the point where cooperating to enforce a dual-ban on drugs -- like, for example, heroin -- becomes more difficult (Grabarsky, 2013).

One solution to this problem is that Congress needs to quickly enact an exemption from federal enforcement in states that have chosen to legalize the drug. Although this is certainly not a long-term solution, this would restore balance from the federalist perspective and alleviate some of the conflict between the state and federal agencies and restore the "cooperative federalism" between states and the federal government. However, this policy issue of medical marijuana to illustrate how key virtues of federalism can be used to make a threshold determination as to whether a particular public policy should be subject to federal regulation or reserved for states and could clearly set a precedent for future issues (Pickerill & Chen, 2008).

One argument, that I personally agree with, is that medical marijuana should be regulated by the states, can be supported both theoretically and empirically: theoretically, by proposing the application of several criteria relating to some of the classic virtues of federalism; and empirically, by citing data from multiple sources showing that our proposed criteria have been met (Pickerill & Chen, 2008). When the substantive merits of a policy issue are highly contested and unresolved, and that issue has traditionally been regulated by states, and one argument uses a three part test to provide insights on the authority (Pickerill & Chen, 2008).

1. whether policy experimentation and innovation has occurred and would help determine the substantive merits of the policy;

2. whether the policy preferences on the issue reflect a pattern of state and/or regional diversity;

3. whether state regulation would protect and/or enhance individual rights and liberties. Satisfaction of these three criteria creates a presumption of state authority over the policy, which the federal government must overcome by justifying federalization of the policy.

Allowing states to make their own laws, rules, and regulations meets all three criteria and thus there is a strong argument in support of the federal government allowing the state's to decide for their population what to do medically and recreationally about marijuana.