Marijuana goes mainstream, confounding the feds

Nancy Benac and Alicia A. Caldwell / The Associated Press /

Published Jun 30, 2013 at 05:00AM

WASHINGTON — It took 50 years for American attitudes about marijuana to zigzag from the paranoia of “Reefer Madness” to the excesses of Woodstock back to the hard line of “Just Say No.”

The next 25 years took the nation from Bill Clinton, who famously “didn’t inhale,” to Barack Obama, who most emphatically did.

And now, in just a few short years, public opinion has moved so dramatically toward general acceptance that even those who champion legalization are surprised at how quickly attitudes are changing and states are moving to approve the drug — for medical use and just for fun.

It is a moment in America that is rife with contradictions:

People are looking more kindly on marijuana even as science reveals more about the drug’s potential dangers, particularly for young people.

States are giving the green light to the drug in direct defiance of a federal prohibition on its use.

Exploration of the potential medical benefit is limited by high federal hurdles to research.

And Washington policymakers seem reluctant to deal with any of it.

Richard Bonnie, a University of Virginia law professor who worked for a national commission that recommended decriminalizing marijuana in 1972, sees the public taking a big leap from prohibition to a more laissez-faire approach without full deliberation.

“It’s a remarkable story historically,” he says. “But as a matter of public policy, it’s a little worrisome. It’s intriguing, it’s interesting, it’s good that liberalization is occurring, but it is a little worrisome.”

More than a little worrisome to those in the anti-drug movement.

“We’re on this hundred-mile-an-hour freight train to legalizing a third addictive substance,” says Kevin Sabet, a former drug policy adviser in the Obama administration, lumping marijuana with tobacco and alcohol.

Legalization strategist Ethan Nadelmann, executive director of the Drug Policy Alliance, likes the direction the marijuana smoke is wafting. But he knows his side has considerable work yet to do.

“I’m constantly reminding my allies that marijuana is not going to legalize itself,” he says.

Legalization and opinions

Eighteen states and the District of Columbia have legalized the use of marijuana for medical purposes since California voters made the first move in 1996. Voters in Colorado and Washington state took the next step last year and approved pot for recreational use. Alaska is likely to vote on the same question in 2014, and a few other states are expected to put recreational use on the ballot in 2016.

Nearly half of adults have tried marijuana, 12 percent of them in the past year, according to a survey by the Pew Research Center. More teenagers now say they smoke marijuana than ordinary cigarettes.

Fifty-two percent of adults favor legalizing marijuana, up 11 percentage points just since 2010, according to Pew. Sixty percent think Washington shouldn’t enforce federal laws against marijuana in states that have approved its use. Seventy-two percent think government efforts to enforce marijuana laws cost more than they’re worth.

“By Election Day 2016, we expect to see at least seven states where marijuana is legal and being regulated like alcohol,” says Mason Tvert, a spokesman for the Marijuana Policy Project, a national legalization group.

Sticky issues

Where California led the charge on medical marijuana, the next chapter in this story is being written in Colorado and Washington state.

Policymakers there are struggling with all sorts of sticky issues revolving around one central question: How do you legally regulate the production, distribution, sale and use of marijuana for recreational purposes when federal law bans all of the above?

How do you tax it? What quality control standards do you set? How do you protect children while giving grown-ups the go-ahead to light up? What about driving under the influence? Can growers take business tax deductions? Who can grow pot, and how much? Where can you use it? Can cities opt out? Can workers be fired for smoking marijuana when they’re off duty? What about taking pot out of state? The list goes on.

The overarching question has big national implications. How do you do all of this without inviting the wrath of the federal government, which has been largely silent so far on how it will respond to a gaping conflict between U.S. and state law?

The Justice Department began reviewing the matter after last November’s election and repeatedly has promised to respond soon. But seven months later, states still are on their own, left to parse every passing comment from the department and the president.

In December, Obama said in an interview that “it does not make sense, from a prioritization point of view, for us to focus on recreational drug users in a state that has already said that under state law that’s legal.”

In April, Attorney General Eric Holder said to Congress, “We are certainly going to enforce federal law. ... When it comes to these marijuana initiatives, I think among the kinds of things we will have to consider is the impact on children.” He also mentioned violence related to drug trafficking and organized crime.

Rep. Jared Polis, a Colorado Democrat who favors legalization, predicts Washington will take a hands-off approach, based on Obama’s comments about setting law enforcement priorities. “We would like to see that in writing,” Polis says. “But we believe, given the verbal assurances of the president, that we are moving forward in Colorado and Washington in implementing the will of the voters.”

Federal raids

The federal government has taken a similar approach toward users in states that have approved marijuana for medical use. It doesn’t go after pot-smoking cancer patients or grandmas with glaucoma. But it also has warned that people who are in the business of growing, selling and distributing marijuana on a large scale are subject to potential prosecution for violations of the Controlled Substances Act — even in states that have legalized medical use.

Federal agents in recent years have raided storefront dispensaries in California and Washington, seizing cash and pot. In April, the Justice Department targeted 63 dispensaries in Santa Ana, Calif., and filed three asset forfeiture lawsuits against properties housing seven pot shops. Prosecutors also sent letters to property owners and operators of 56 other marijuana dispensaries warning that they could face similar lawsuits.

University of Denver law professor Sam Kamin says if the administration doesn’t act soon to sort out the federal-state conflict, it may be too late to do much. “At some point, it becomes so prevalent and so many citizens will be engaged in it that it’s hard to recriminalize something that’s become commonplace.”

The politics of it

There’s a political calculus for the president, or any other politician, in all of this.

Younger people, who tend to vote more Democratic, are more supportive of legalizing marijuana, as are people in the West, where the libertarian streak runs strong. In Colorado, for example, last November more people voted for legalized pot (55 percent) than voted for Obama (51 percent), which could help explain why the president was silent on marijuana before the election.

“We’re going to get a cultural divide here pretty quickly,” says Greg Strimple, a Republican pollster based in Boise, Idaho, who predicts Obama will duck the issue as long as possible.

Despite increasing public acceptance of marijuana, and growing interest in its potential therapeutic uses, politicians know there are complications that could come with commercializing an addictive substance, some of them already evident in medical marijuana states. Opponents of pot are particularly worried that legalization will result in increased adolescent use as young people’s estimations of the drug’s dangers decline.

“There’s no real win on this from a political perspective,” says Sabet. “Do you want to be the president that stops a popular cause, especially a cause that’s popular within your own party? Or do you want to be the president that enables youth drug use that will have ramifications down the road?”

The business of it

Marijuana legalization advocates offer politicians a rosier scenario, in which legitimate pot businesses eager to keep their operating licenses make sure not to sell to minors.

“Having a regulated system is the only way to ensure that we’re not ceding control of this popular substance to the criminal market and to black marketeers,” says Aaron Smith, executive director of the National Cannabis Industry Association, a trade group for legal pot businesses in the U.S.

See Change Research, which analyzes the marijuana business, has estimated the national market for medical marijuana alone at $1.7 billion for 2011 and has projected it could reach $8.9 billion in five years. Overall, marijuana users spend tens of billions of dollars a year on pot, experts believe.

While the federal government hunkers down, Colorado and Washington state are moving forward on their own.

Colorado’s governor in May signed a set of bills to regulate legal use of the drug, and the state’s November ballot will ask voters to approve special sales and excise taxes on pot. In Washington state, the Liquor Control Board is drawing up rules covering everything from how plants will be grown to how many stores will be allowed. It expects to issue licenses for growers and processors in December, and impose 25 percent taxes three times over — when pot is grown, processed and sold to consumers.

The science of it

So how bad, or good, is pot?

There are studies that set off medical alarm bells but also studies that support the safer-than-alcohol crowd and suggest promising therapeutic uses.

J. Michael Bostwick, a psychiatrist at the Mayo Clinic, set out to sort through more than 100 sometimes conflicting studies after his teenage son became addicted to pot. In a 22-page article for Mayo Clinic Proceedings in 2012, he laid out the contradictions in U.S. policy and declared that “little about cannabis is straightforward.”

“Anybody can find data to support almost any position,” Bostwick says now.

For all of the talk that smoking pot is no big deal, Bostwick says, he determined that “it was a very big deal. There were addiction issues. There were psychosis issues. But there was also this very large body of literature suggesting that it could potentially have very valuable pharmaceutical applications but the research was stymied” by federal barriers.

Marijuana is a Schedule I drug under 1970 law, meaning the government deems it to have “no currently accepted medical use” and a “high potential for abuse.”

Still, as state after state moves toward a more liberal approach to marijuana, “we’re having a hard time almost believing how fast public opinion is changing in our direction,” says Nadelmann of the Drug Policy Alliance.

But William Galston and E.J. Dionne, who co-wrote a paper on the new politics of marijuana for the Brookings Institution, believe marijuana legalization hasn’t achieved a deep enough level of support to suggest a tipping point, with attitudes toward legalization marked by ambivalence and uncertainty.

“Compared with attitudes toward same-sex marriage, support for marijuana legalization is much less driven by moral conviction and much more by the belief that it is not a moral issue at all,” they wrote.

Ultimately, marijuana advocates say, it’s Congress that needs to budge, aligning federal laws with those of states moving to legalization. But that doesn’t appear likely anytime soon.

“It will happen very suddenly,” Tim Lynch, director of the libertarian Cato Institute’s Project on Criminal Justice, predicts. “In 10-15 years, it will be hard to find a politician who will say they were ever against legalization.”