The Continued Criminalization of Legal Marijuana


(Getty Images/Rex Wholster)

Hordes of Californians waited eagerly in the chilly pre-dawn hours of Jan. 1 to be part of history as the Golden State opened its doors to legalized marijuana after a half-century of national prohibition and two decades of exclusively medicinal marijuana access.  Eight million Californians voted in favor of Proposition 64 in November of 2016, making California the 8th state to legalize the adult use of marijuana – though not without speed bumps and cryptic threats from the “reefer maddened” U. S. Attorney General Jeff Sessions.  

The new state law legalizes the cultivation and selling of marijuana, as well as the possession of up to one ounce of cannabis to individuals over 21, who may also grow up to six live plants for non-commercial use. However, those wishing to enter the booming new industry of commercial and recreational marijuana are not only hit with a hefty 15 percent excise state tax atop local taxes that can reach as high as 8 percent, but they also have to deal with bureaucratic permitting processes partly responsible for leaving hundreds of business without a permit to operate during the crucial first weeks of legalization. “We lose market share every day,” says Jerred Kiloh, owner of the Higher Path dispensary in Sherman Oaks. “We are fighting huge losses and I don’t think anybody really cares.”

In California there an estimated 3,000 storefront marijuana dispensaries and several thousand more delivery services, but the newly formed Bureau of Cannabis Control (BCC) has to date approved little more than 400 cannabis operatorsfrom Shasta Lake to San Diego,” leaving more than 90 percent of cannabusinesses unlicensed.

Some counties such as Fresno, Kern, and Riverside have banned the sale of cannabis outright while other local governments like Los Angeles and San Francisco only recently began to construct regulatory framework late last year and have yet to award local permits, a precursor to the Bureau of Cannabis Control permits necessary to operate legally. Thanks to slow-to-start permit awarding by local governments drowning in permit applications, many dozens of shops have had to turn hundreds of customers lacking medical prescriptions away to businesses who either don’t mind operating without a permit or ones whose municipality had the foresight to ready preparations in time for New Year’s day.  

Lost revenue and market share may be the least of the industry’s worries. The U.S. Department of Justice announced on Jan. 4 that they would roll back Obama-era guidelines limiting the interference of federal government on the prosecution of marijuana offenses in states that have legalized its use. These guidelines were passed by former Department of Justice head Attorney General James Cole in 2013, after Washington and Colorado had each passed recreational marijuana initiatives, in an effort to have federal policy that was more flexible to the ongoing movement to rethink marijuana as opposed to policy mandating federal interference indiscriminately. 

The Cole Memo, requiring that states grant certain assurances such as prohibiting marijuana from falling into the hands of minors or crossing state lines, was widely viewed as a soft-approach by the Obama administration and a reversal from President Obama’s first five years in office where he expanded the War on Drugs by spending nearly $300 million on paramilitary-style raids and crackdowns on state compliant medical marijuana operations. Some 29 states have passed medical marijuana regulations and were considerably less worried about federal crackdowns with the Cole Memo tempering the federal government in cases that followed state law.

Now President Trump, like President Obama before him, has reneged on his presidential campaign promises to let the states decide the issue of marijuana. His Department of Justice repealed the Cole Memo, thereby instructing U.S. attorneys to “enforce the laws enacted by Congress when pursuing prosecutions related to marijuana activities.Chief among these laws is the Controlled Substance Act of 1970 which initially classified marijuana as a Schedule I substance with no medicinal use, and on the same level as heroin when it comes to potential for abuse.

The rescinding of the Cole Memo comes as little surprise to those who are familiar with Trump’s Attorney General Jeff Sessions, notorious for his ties to white supremacists and a man who once joked that the worst thing about the Ku Klux Klan was its marijuana-smoking members. Thus by removing the Cole Memo at a time when marijuana legalization enjoys a 64 percent approval rate nationwide, Sessions is using taxpayer money to punish individuals, largely Black and Brown people, for a non-violent action that a majority of Americans feel should be legal.

Attorney General Sessions maintains that his aim is to “return to the rule of law… and provide [federal law enforcement] all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.Instead, Session’s decision emphasizes the criminalization of marijuana use through a continuation of the decades-long War on Drugs, which well-documented evidence, including Nixon-era senior staff voice recordings, exposes as a political tool to target the anti-war left and Black Americans, thus feeding the burgeoning Prison Industrial Complex. The U.S. prison population has risen some 700 percent since President Nixon announced the War on Drugs in 1971 and 2.3 million Americans are incarcerated today, with many thousands incarcerated over non-violent drug offenses. In Los Angeles, a city where Black Americans make up 9 percent of the population, nearly 40 percent of marijuana related arrests are attributed to the Black population (from 2000-2017) despite using the drug at the same rate as their white counterparts.

In an effort to rectify past injustices, Prop 64 also reduces the penalty for unlicensed marijuana sales from four years in state prison to six months in county jail, while smoking marijuana in public is subject to a $100 fine. Another little known clause in the new law reclassifies many marijuana related felonies as misdemeanors and applies these laws retroactively, meaning that individuals convicted for prior marijuana offenses can now go through an admittedly grueling process involving paperwork and lawyers to expunge the convictions from their records.

In the past ten years alone, California has sanctioned over 500,000 marijuana related arrests leading to crippling repercussions for folks who found themselves unable to reintegrate into society or find dignified, well-paying, jobs. Of those 500,000, a mere 1 percent, have so far submitted court petitions for re-sentencing or reclassification largely due to hefty lawyer fees and lack of outreach on the part of California.

Reinvestment in communities disproportionately affected by the War on Drugs is a crucial piece of any legislation hoping to amend previous wrongs, and Prop 64 attempts to do so through nonprofits, job placement, mental health and substance abuse programs, as well as legal and other services funded by state-marijuana tax. Annual revenue collected from marijuana taxes will also be used to evaluate and study the new law, establish CHP protocols for impaired driving, research safety and efficacy of medicinal marijuana, restore and protect the environment, as well as fund youth education and early intervention programs. With the looming threat of potential federal intervention and competition from the so-called black market, the future and safety of marijuana in California is still unsure, but governments should be wary of prohibiting that which brings joy to people and alleviates their pain.

The War on Drugs has proven a spectacular failure at curbing violent crime and continues to impede the development of hemp, one of our oldest domesticated crops whose uses include paper, textiles, food, and medicine. Initial laws to secure public safety and general well being have run antithetical to decades of research proving the harmlessness and potential benefit of spending less on enforcing marijuana prohibition and using our resources in more fruitful ways. With California joining the green economy, the national marijuana industry’s value will increase from $6.7 billion in 2016 to $20.3 billion in 2021, making Attorney General Sessions’ dream of ending the legal marijuana industry unlikely at best.

We have come a long way since public support for legalization was at 12 percent in 1969, and today the marijuana movement shows no signs of slowing down, Cole Memo or otherwise.

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