Why is Marijuana Decriminalization Not Enough?

Decriminalization of marijuana possession is a necessary first step toward a more comprehensive reform of the drug prohibition regime. However decriminalization alone does not address many of the greatest harms of prohibition such as high levels of crime, corruption and violence, massive illicit markets and the harmful health consequences of drugs produced in the absence of regulatory oversight. 17 states have decriminalized marijuana possession, while two of these Colorado and Washington have begun to legally regulate marijuana for adults over 21. The Costs and Consequences of Prohibition Marijuana prohibition has been a costly failure. In 2011, there were 757,969 marijuana arrests in the U.S. comprising half of all drug arrests. Eighty-seven percent of these arrests were for simple possession, not sale or manufacture. There are more annual arrests for marijuana possession than for all violent crimes combined. 1 Yet today, marijuana is the most widely used illegal drug in the U.S. and the world. More than 100 million Americans about 42 percent of American adults admit to having tried it, and over 18 million have used it in the past month.2 Marijuana arrests also disproportionately affect young people of color. According to government data, whites reportedly consume and sell marijuana at the same rates as (or higher than) blacks and Latinos.3 Yet, blacks and Latinos are arrested for marijuana possession or for selling marijuana at vastly disproportionate rates.4 In fact, a new report by the American Civil Liberties Union (ACLU) found that blacks were nearly four times more likely to be arrested for possession than whites in 2010.5

Decriminalization Seventeen states including California, Massachusetts, Minnesota, Nebraska, New York, Ohio, Connecticut, Rhode Island and, most recently, Vermont have enacted various forms of marijuana decriminalization or legalization. Decriminalization is commonly defined as the reduction or elimination of criminal penalties for minor marijuana possession offenses. Many of these states have replaced criminal sanctions with the imposition of civil, fine-only penalties6; others have reduced marijuana possession from a felony to a fine-only misdemeanor or infraction.7 U.S. Drug Arrests, 2011
Marijuana Possession Marijuana Sales or Manufacturing All Other Drug Sales or Manufacturing All Other Drug Possession Source: Federal Bureau of Investigation, Uniform Crime Report, Crime in the United States, 2011.

39%

43%

12%

6%

Why is Decriminalization Not Enough? Decriminalization is certainly a step in the right direction, mitigating the excesses of marijuana prohibition to a degree. Evidence from the states that have reduced penalties not only shows no increase in marijuana or other drug use,8 but also substantial reductions in misdemeanor arrests where

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decriminalization has been implemented effectively. In 2011, California law changed, and simple marijuana possession was reclassified as an infraction (administrative violation) instead of a misdemeanor, leading to a significant decline in misdemeanor marijuana arrests.9 Specifically, misdemeanor marijuana arrests plunged from 54,849 in 201010 to 7,764 in 2011, 11and remained constant in 2012 at 7,76812 -- a decrease of more than 80 percent. Because of this dramatic reduction, overall drug arrests declined from 129,182 in 2010 to 76,916 in 2011,13 and 79,270 in 2012. 14 However, decriminalization falls short in many ways largely because it still lies within the framework of prohibition. Consequently, decriminalization still suffers from the inherent harms of prohibition namely, an illegal, unregulated market; the unequal application of the laws (regardless of severity of penalty) toward certain groups, especially people of color; unregulated products of unknown potency and quality; and the potential for continued arrests as part of a netwidening phenomenon.15 Under decriminalization, it is likely that marijuana possession arrests will continue, or even increase, because police may be more inclined to make arrests if they present less administrative burdens as infractions, civil offenses, or even misdemeanors (without jail), as opposed to felonies. This phenomenon occurred in California after the state reduced the penalty for marijuana possession from a felony to a misdemeanor: felony arrests declined dramatically, and overall arrests declined as well, but misdemeanor arrests rose sharply.16 A similar process of net-widening occurred in parts of Australia that decriminalized marijuana, where police officers, now relieved of the burden of taking the offender through formal booking procedures, made many more formal arrestsSince many arrestees did not pay their fines, the result was an increase in the number of individuals being incarcerated for marijuana offenses, albeit now indirectly for their failure to pay a fine.17 Even a misdemeanor conviction can hinder an individuals ability to succeed and participate in society by preventing him or her from obtaining employment, housing and student loans.18 Even an arrest record can be an obstacle to opportunities for otherwise lawabiding individuals.

Additionally, not all decriminalization schemes protect all people from risk of arrest. Even in many of the states that have reduced penalties, marijuana possession is not fully decriminalized. Some states have defined simple marijuana possession as only one-half ounce or even less;19 possession of more than these amounts may still trigger harsh criminal penalties. Some states have only decriminalized a first offense, while subsequent offenses are punished severely.20 Other states decriminalization laws have loopholes, such as New Yorks, in which personal possession is decriminalized but possession in public view remains a crime; as a result, even though marijuana is formally decriminalized, the NYPD still arrested roughly 40,000 people in 2012 the vast majority of whom were blacks and Latinos.21 Overall, decriminalization provides only limited protections from the criminal justice system, because the police may increase the number of arrests, because the burden of arrest for them has been reducedOr the limits for possession have been set so low that many instances of possession for personal use may be wrongly classified [as trafficking or possession for distribution].22 Decriminalization will also do nothing to eliminate the lucrative underground market for marijuana. The value of marijuana produced in the U.S. is estimated to be more than $35 billion, making it the nations largest cash crop, exceeding the value of corn and wheat combined.23 This immense market is completely untaxed, a source of revenue that federal and state governments can ill-afford to neglect. Instead, prohibition ensures that this vast market enriches criminal organizations and contributes to violence, crime and corruption on a massive scale. Virtually all marijuana-related violence is a direct result of prohibition, which keeps responsible, regulated businesses out of the market. Since illegal businesses have no legitimate means to settle disputes, violence inevitably results just as it did during alcohol Prohibition. The effect has been unending bloodshed in countries like Mexico, where at least 70,000 people have been killed in prohibition-related violence in the past six years.24 The U.N recently described Central America as one of the most violent regions in the world outside of active war zones.25

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Marijuana prohibition is a major cause of this carnage. The federal government has asserted that [M]arijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels,26 and has called the substance a cash crop that finances corruption and the carnage of violence year after year.27 The former U.S. drug czar, John Walters, went so far as to publicly contend that more than 60 percent of cartels revenue derives from the marijuana trade amounting to some $13.8 billion.28 Taxation and Regulation Legal regulation is not a step into the unknown we have centuries of experience in legally regulating thousands of different drugs. Legal regulation means commonsense controls marijuana wouldnt be treated like Coca-Cola, available to anyone of any age, anywhere, at any time. Under many regulatory proposals, it would be taxed and regulated in a manner similar to alcoholic beverages, with age limits, licensing controls, and other regulatory restrictions. Just as cities, counties and states vary in the way they regulate alcohol, the same could be true for marijuana. Marijuana prohibition is unique among American criminal laws no other law is both enforced so widely and harshly yet deemed unnecessary by such a substantial portion of the population. Do you think the use of marijuana should be made legal or not? % No, illegal % Yes, legal
84 8179 808179818178 77 74 73 74 7373 70 69 67 66 6361 60 59 57 52 52 50 45 45 41 32 2731 2830 25 24 22 22 22 20 19 19 17 17 16 161617 15 12 33 35 32

In November of 2012, residents of Colorado and Washington took the historic step of rejecting the decades-long failed policy of marijuana prohibition by deciding to permit the legal regulation of marijuana sales, cultivation and distribution for adults 21 and older. In Colorado, Amendment 64 won with 54.8 percent of the vote. In Washington State, I-502 won with 55.7 percent of the vote. Both states have completely eliminated all penalties for marijuana possession by adults; Colorados law also allows adults to cultivate six marijuana plants. These states determined that simply eliminating criminal penalties for possession was not enough. They are in the process of establishing regulations for the cultivation, distribution and sale of marijuana to adults a process that will be completed towards the end of the year. Legislators in several states have also introduced (or pledged to introduce) bills to tax and regulate marijuana. In Congress, a bipartisan group of legislators has introduced historic legislation to end federal marijuana prohibition. 16 Representatives have now co-sponsored the bill including California Republican Dana Rohrabacher.29 Public support for making marijuana legal has shifted dramatically in the last two decades, especially in the last few years, with recent polls showing greater than majority support nationwide, including an April poll by Pew showing that 52 percent of respondents favor legalizing marijuana.30 A 2012 poll, meanwhile, found that 74 percent of Americans believe personal marijuana use should be dealt with through alternatives to criminal penalties,31 and a recent poll found that 94 percent of Americans oppose jail sanctions for marijuana offenses and more than twothirds believe someone caught with marijuana should either be fined or not punished at all.32 Strong majorities of the American people strongly oppose any federal intervention in the democratic processes of these states, according to new polls by Gallup (64 percent) and CBS News (59 percent). In fact, a significant number nearly half of those who oppose marijuana legalization on principle nevertheless believe that Colorado and Washington should be allowed to move forward with regulating adult use of marijuana.33 Nearly three-quarters (74 percent) of respondents to another poll late last year said they oppose the federal governments crackdown on state medical marijuana programs, believing instead that the federal government should respect

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Source: Pew, Majority Now Supports Legalizing Marijuana, April 4, 2013.

Drug Policy Alliance | 131 West 33rd Street, 15th Floor, New York, NY 10001 nyc@drugpolicy.org | 212.613.8020 voice | 212.613.8021 fax

2013

state laws that seek to regulate medical marijuana.34

Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States: 2011 (2012), http://www.fbi.gov/about-us/cjis/ucr/crimein-the-u.s/2011/crime-in-the-u.s.-2011/persons-arrested/personsarrested. 2 Substance Abuse and Mental Health Services Administration, "Results from the 2011 National Survey on Drug Use and Health," (Rockville, MD: Substance Abuse and Mental Health Services Administration, 2012), Table 1.24B and Table 1.24A. [107,842,000 Americans age 12 or older report having tried marijuana in their lifetime; 18,071,000 report using it in the past month]. 3 American Civil Liberties Union, "The War on Marijuana in Black and White," (2013); Substance Abuse and Mental Health Services Administration, "Results from the 2011 National Survey on Drug Use and Health; Human Rights Watch, "A Red Herring: Marijuana Arrestees Do Not Become Violent Felons," (2012). 4 See e.g., American Civil Liberties Union, "The War on Marijuana in Black and White; H. Nguyen and P. Reuter, "How Risky Is Marijuana Possession? Considering the Role of Age, Race, and Gender," Crime & Delinquency 58, no. 6 (2012); H.G. Levine and D.P. Small, Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City 1997-2007 (New York Civil Liberties Union, 2008); A. Golub, B.D. Johnson, and E. Dunlap, "The Race/Ethnicity Disparity in Misdemeanor Marijuana Arrests in New York City*," Criminology & public policy 6, no. 1 (2007). 5 American Civil Liberties Union, "The War on Marijuana in Black and White." 6 California, Connecticut, Maine, Massachusetts, Nebraska, New York, Oregon, Rhode Island and Vermont. Alaska imposes no criminal or civil penalty for the private possession of small amounts of marijuana by adults. Washington and Colorado have completely eliminated all civil and criminal penalties for personal marijuana possession by adults; Colorados law also allows adults to cultivate six marijuana plants. 7 Nevada, North Carolina, Minnesota, Mississippi, and Ohio. 8 See e.g., Eric W Single, "The Impact of Marijuana Decriminalization: An Update," Journal of public health policy (1989); Clifford F. Thies and Charles A. Register, "Decriminalization of Marijuana and the Demand for Alcohol, Marijuana and Cocaine," The Social Science Journal 30, no. 4 (1993); Robin Room, Cannabis Policy: Moving Beyond Stalemate (Oxford University Press, USA, 2010); Jonathan P Caulkins et al., Marijuana Legalization: What Everyone Needs to Know (Oxford: Oxford University Press, 2012). 9 Bureau of Criminal Statistics California Department of Justice, "Crime in California 2011," (2012); "Crime in California 2012," (2013). 10 Bureau of Criminal Statistics California Dept of Justice, "Crime in California 2010," (2011). 11 Bureau of Criminal Statistics California Department of Justice, "Crime in California 2011." 12 "Crime in California 2012." 13 "Crime in California 2011." 14 "Crime in California 2012." 15 Peter Reuter, Marijuana Legalization: What Can be Learned from Other Countries? RAND Corporation (2010). 16 Aldrich, M., Mikuriya, T., et al., Fiscal Savings In California Marijuana Law Enforcement, 1976 - 1985 Attributable to the Moscone Act of 1976 (1986). 17 Reuter 9. 18 See, for example, K. Babe Howell, "Broken Lives from Broken Windows: The Hidden Costs of Aggressive Order Maintenance Policing," NYU Review of Law & Social Change, 33 (2009): 371;
1

Human Rights Watch, No Second Chance: People with Criminal Records Denied Access to Public Housing, November 18, 2004, http://www.hrw.org/reports/2004/11/17/no-second-chance; and Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 New York University Law Review 457534 (2010). 19 See e.g. NORML, Connecticut Penalties, http://norml.org/laws/item/connecticut-penalties?category_id=849 20 See e.g., NORML, Nebraska Penalties, http://norml.org/laws/item/nebraska-penalties-2?category_id=871. 21 Harry Levine, Loren Siegel, and Gabriel Sayegh, "One Million Police Hours: Making 440,000 Marijuana Possession Arrests in New York City, 20022012," ( Drug Policy Alliance, 2013). 22 Reuter (2010) 12. 23 Gettman, Jon, Marijuana Production in the United States, The Bulletin of Cannabis Reform (December 2006). 24 E. Eduardo Castillo, Mexico Drug War: List Of Missing Raises Doubts In Mexico, Associated Press (December 22, 2012), http://www.huffingtonpost.com/2012/12/23/mexico-drug-war-missinglist_n_2355789.html. 25 United Nations, Office on Drugs and Crime, Global Study on Homicide 2011, http://www.unodc.org/unodc/en/data-andanalysis/statistics/crime/global-study-on-homicide-2011.html. 26 David G. Ogden, U.S. Department of Justice, Office of the Deputy Attorney General, Memorandum for Selected United States Attorneys, Re: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, (October 19, 2009), http://blogs.justice.gov/main/archives/192. 27 Kevin L. Perkins, Assistant Director, Criminal Investigative Division, FBI; Anthony P. Placido, Assistant Administrator for Intelligence, DEA. Statement Before the U.S. Senate Caucus on International Narcotics Control, May 5, 2010. http://www.justice.gov/dea/speeches/100505_inc.pdf 28 Office of National Drug Control Policy, National Drug Control Strategy, Washington, D.C., February 2006. https://www.ncjrs.gov/pdffiles1/ondcp/212940.pdf. 29 The Ending Marijuana Prohibition Act of 2013, House Resolution 499. 30 Pew, Majority Now Supports Legalizing Marijuana, (April 4, 2013), http://www.people-press.org/2013/04/04/majority-now-supportslegalizing-marijuana/. 31 Angus-Reid Public Opinion, Americans, Britons and Canadians Endorse Alternative Penalties, (2012), http://www.angusreid.com/polls/44526/americans-britons-and-canadians-endorsealternative-penalties/ 32 Reason Magazine-Rupe, "Reason-Rupe Public Opinion Survey: May 2013 Topline Results," (2013). 33 Frank Newport, Americans Want Federal Gov't Out of State Marijuana Laws, Gallup (December 10, 2012), http://www.gallup.com/poll/159152/americans-federal-gov-statemarijuana-laws.aspx; and Fred Backus & Stephanie Condon, Poll: Nearly half support legalization of marijuana, CBS News (November 29, 2012), http://www.cbsnews.com/8301-250_162-57556286/pollnearly-half-support-legalization-of-marijuana/. 34 Mason Dixon Polling & Research, Marijuana Policy Project Survey Question, May 2012, http://www.scribd.com/doc/93774300/Medical-marijuana-poll-May2012

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