This essay examines the legal status of marijuana in the United States and argues that current criminal prohibitions are logically inconsistent with the regulatory treatment of alcohol and tobacco. Drawing on lessons from the Prohibition era, the paper contends that criminalizing marijuana cultivates black markets, funds organized crime, strains prison systems, and wastes law enforcement resources. The essay explores government paternalism as a rationale for drug legislation and concludes that a framework of legalized domestic production, quality regulation, and taxation — mirroring existing alcohol and tobacco policy — would better serve public safety, fiscal efficiency, and legal consistency than continued prohibition.
The marijuana leaf, or cannabis, is a cultivatable herb capable of producing a euphoric psychological change in users, roughly comparable in degree — if not in specific effects — to the effects of drinking alcohol (Gerrig & Zimbardo, 2005). It alters various aspects of mood and focus and has been used for thousands of years in cultural and religious rituals throughout the world (Brecher, 1972). The recreational use of marijuana is currently illegal in the United States, although California has authorized its use for certain medical purposes; several other states have decriminalized its recreational use without going so far as legalizing it.
Critics of contemporary U.S. law pertaining to marijuana use suggest that there is no logical basis for treating marijuana sale and use any differently from that associated with other substances consumed recreationally for their mood-altering effects, such as alcohol and tobacco. According to that view, marijuana should be produced, regulated, and taxed in the exact same manner as alcohol and tobacco. Proponents of criminal sanctions for marijuana use and possession maintain that it is a dangerous "gateway" drug that dramatically increases the likelihood of progression to more harmful drugs of abuse — such as cocaine, methamphetamine, and heroin — mainly because most users of hard drugs smoked marijuana first (Dershowitz, 2002).
Marijuana has been designated a controlled substance since 1970, and its possession, sale, and use are subject to criminal penalties in various degrees in every U.S. state. In the 1930s, the federal government initiated a public awareness campaign designed to publicize the supposed dangers of marijuana, but its depiction was so exaggerated that the film produced for that purpose, Reefer Madness, eventually became a cult classic watched by marijuana users for its comedic rather than its informational value (Macionis, 2003).
Criminal penalties differ from state to state and range from sub-misdemeanor violations in some states for use or possession of small amounts, to felony charges for any amount — with mandatory jail sentences, even for first-time offenders (DPA, 2008; SPS, 2003; Zalman, 2008). Under federal law, marijuana possession and use is strictly prohibited, which conflicts with many state laws, particularly those in California, which has recognized a medicinal value of the drug and currently licenses authorized distributors to sell it to patients with prescriptions provided by licensed physicians.
At various times, federal law enforcement agencies have shut down state-authorized distributors and prosecuted individuals involved in marijuana distribution, despite their full compliance with applicable state and local laws and regulatory authorities (Dershowitz, 2002; DPA, 2008). Even states that have authorized or decriminalized simple possession strictly prohibit cultivation of the cannabis plant by private individuals, as well as the sale or transfer of any quantity of marijuana, whether or not for profit (Schmalleger, 2008).
In principle, all anti-drug legislation and efforts by governmental authorities to prohibit the recreational consumption of drugs constitute an exercise of governmental paternalism intended to protect citizens from the consequences of their own decisions and behavioral choices (Dershowitz, 2002; Taylor, 1989). From 1920 until 1933, the Eighteenth Constitutional Amendment criminalized the manufacture, possession, sale, and consumption of alcoholic beverages in the United States. During that time, the law was routinely ignored and underground entertainment clubs known as "speakeasies" flourished throughout the largest American cities, more often than not with the tacit approval of local law enforcement in connection with bribes intended to eliminate prosecution (Henslin, 2002; Schmalleger, 2008).
Prohibition in the U.S. was associated with several detrimental consequences, including the rise of extremely wealthy and powerful criminal organizations whose political influence corrupted law enforcement and political administration at the highest levels of state authority in several states — most notably in Chicago, Michigan, and New York. The black market demand for alcohol was so great that organized crime syndicates quickly became better equipped than local law enforcement. The enormous wealth attributable to illegal alcohol profits financed criminal organizations that were, by most accounts, directly responsible for the creation of modern organized crime in the United States.
By the time the 18th Amendment was repealed by the 21st Amendment in 1933, thousands of American citizens had died from consuming low-quality or isopropyl alcohol disguised by flavorful fruity beverages produced by criminals for greater profit. Many more citizens and law enforcement agents alike died in violent clashes between organized criminal gangs fighting turf wars in the streets and businesses of many American cities, or in efforts to apprehend those responsible for criminal enterprises profiting from black market alcohol (Brecher, 1972; Friedman, 2005).
"How legalization eliminates black markets and criminal profits"
"Tobacco vs. marijuana: inconsistent legal treatment analyzed"
Like alcohol and tobacco, marijuana has been consumed in human societies for thousands of years, and likely since before recorded history. Also like alcohol and tobacco products, marijuana is associated with certain dangers that warrant appropriate government paternalism in the form of legislation prohibiting its use by minors, regulating its manufacture and sale to ensure relative safety and quality, and preventing the use of any perception-altering substances in connection with the operation of motor vehicles. However, there is no logical basis whatsoever for distinguishing between alcohol and marijuana in terms of criminal legislation, and both substances are considerably less harmful to human health — in the manner of their typical consumption — than tobacco products.
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