The Case for Decriminalizing Marijuana in Minnesota–The Right and Wrong Reasons for It and What it Means to Do So

Is it time to legalize the recreational use of marijuana in Minnesota?  The answer may be yes, but when and how it is done in Minnesota is a critical issue.

Two parties in the November 2018 elections received  major party status on the promise of legalizing marijuana.  Governor-elect Tim Walz is apparently supportive of the same along with several legislators.  State Fair and other polls in Minnesota too support legalization of its recreational use, paralleling national polls placing more than 60% of the American public favor this.  The time seems right to act.

In many ways, the time is more than ripe.  Twenty-five years ago I was among the first to argue for decriminalization of drug use.  In “Rethinking Drug Criminalization Policies,” 25 Texas Tech Law Review 151 (1993), I argued that the then three decade long war on drugs had  failed miserably and that it was time to shift away from a drug policy that criminalizes its use to one which treats it as a public health problem. That thesis was true then, and even more so now.  My argument then addressed not simply marijuana but all forms of illegal drugs because while there is no evidence that the use of marijuana poses a public health problem, other drugs do.  Not a problem then, or at least not apparent, were the health dangers arising from opioid use which is now an epidemic, posing a far greater problem than the recreational use of marijuana.  Add up the costs of police enforcement, court time, and other expenses, one can argue that Minnesota would save significant resources in legalizing recreational marijuana.  In addition, as I pointed out earlier this year in a Huffington Post article, the criminalization of its use has failed.  Its prohibition has not worked and it has produced  racial disparities with lasting effects on society, including Minnesota. 

Marijuana use is effectively already being decriminalized in Minnesota.  Over time more and more conditions are being allowed under the medical marijuana law, including most recently Alzheimer’s Disease.   That law has accommodated Minnesota’s gradually to it use, but of course there is also a generational shift going on that does not shun its use.  One can make a libertarian argument for its recreational use that parallels John Stuart Mill’s On Liberty arguments that it is not the business of society what one does so long as it does not affect others.  However, the stronger arguments to make are that legalizing its use is consistent with the “One Minnesota” Walz promise to address disparities that divide the state.  Criminalizing recreational marijuana use is supported by a majority of the state and its enforcement has racially arbitrary impacts.  Additionally, legalizing it saves money, allowing the state to concentrate its resources are more pressing drug-related issues such as the opioid crisis, domestic and sexual abuse associated with alcohol use, and the growing  problem of e-cigarettes.  Decriminalization should be sold along these lines, suggesting legalization  allows for the state to address more pressing problems.

Finally, many will argue that a legalize strategy will help Minnesota in two other ways.  First,  a “legalize, regulate,  and tax” policy will bring in new revenue to the state.  Yes this is the case, but one should be wary about projections of such revenue which are often oversold.  Second, the state should not get too dependent on one revenue stream such as this–lotteries point to this.  Third, as seen in the case of Colorado, legalize, regulate, and tax poses administrative complications for the state that need to be addressed.  Marijuana is still illegal under federal law and one cannot use banks.  Marijuana sales are a cash economy for now and good planning is essential to making it work.  Finally, along this lines, moving from medical to recreational use of marijuana will have an impact on the former businesses, and one must think about that.

A second claim for legalization is its impact on the Minnesota economy.  It may well help in many ways, ranging from agriculture to retail businesses.  But again, one needs to think in terms of how these new businesses fit in with existing ones in the state. This gets at what is meant by decriminalization or legalization.  Is legalization simply about personal use or does it mean commercial sanction?  This is a policy question not clear now.

Finally, despite popular support for decriminalization, will this be an easy bill to pass this session?  Do Democrats and Walz want to define their political agenda as starting with marijuana  or do they want to start with the budget, the bonding bill, federal tax conformity, or infrastructure?  Legalization is a popular issue with urban liberals, but it is a top priority with suburban female voters who put the DFL in charge?  What are the priorities, will the fight over marijuana be contentious, and what message will be sent by making it a priority in 2019?  These are all good questions that need to be examined.

Overall, the time to legalize is past due, but how it is done and exactly when, and how it is sold, are the real questions that remain.

Marijuana and the Criminal Justice-Prison Industrial Complex

     America has fought a losing war and it is time to end it.  No, this is not a reference to Afghanistan or the War on Terrorism.  It is to the four decade long war on drugs that has failed miserably.  It is time to shift away from a drug policy that criminalizes its use to one which treats it as a public health problem.  This should be the policy regardless of whether Minnesota endorses medical marijuana.
    Richard Nixon launched the “war on drugs” with his presidency in 1968 and coined the phrase in a 1971 speech.  Since Nixon the war on drugs has been a mainstay of Republican if not bipartisan politics.  The 1974 New York Rockefeller Drug laws penalized individuals with sentences of 15, 25 years, or even life in prison for possession of small amount of marijuana. Increased mandatory minimum sentences for crimes were ratcheted up for drugs and the move toward “three strikes and you are out laws” in the 1990s were adopted in part as a result of the drive to prosecute drug crimes.  All told in the last decade the federal government has annually spent $20-25 billion on drug enforcement with states kicking in an additional $10-15 billion if not more. What has this money purchased?
    There is little evidence that drug usage is down.  Nearly 40% of high school students have reported using illegal drugs, up from 30% a decade ago.  Some studies suggest 30 million or more Americans have used illegal drugs in any given year.  Several hundred thousand individuals per year are arrested for mere use or possession of marijuana. Hard core use is not down and in fact in some cases it has stabilized or increased over time.  Programs such as DARE show little sign of success, and the “Just say no” campaign that begin with Nancy Reagan also does not seem to have had much impact on drug usage.
    But if the war on drugs has done little to decrease demand for drugs, it has had powerful unintended consequences.  Interdiction and enforcement has created a significant and profitable market for illegal drugs both in the United States and across the world.  Estimates are the marijuana is one of the most profitable cash crops in California and the drug violence in Mexico, resulting in approximately 55,000 deaths in the last six years, is tied to American demand for drugs.  The price of cocaine is now at record lows, courts are jammed with drug dockets, and prison populations have swelled with individuals whose only crimes were minor drug possession.  States are now saddled with overcrowded bloated and aging prison populations, lives have been lost due to drug incarceration, and tax dollars that could have been spent on education, roads, or simply saved have been wasted on drug enforcement.  American politicians never seemed to lose points by ranting against drugs or demanding tougher enforcement.  Clearly they were addicted to our drug policies.
    Drug criminalization has failed.  This is not to say that drug use is not a problem.  In some cases it is.  But put into perspective, use of alcohol, tobacco, or the consumption of fatty foods and sugary drinks exacerbating obesity and heart disease are far greater problems in this country than the use of illegal drugs. In many cases recreational use of drugs is harmless, in others, such as with medical marijuana, its uses may in fact be beneficial.  For others, personal and occasional use of drugs is a matter of privacy.  But yes, one can concede that use of illegal drugs–including abuse of prescription drugs which is perhaps the biggest problem–is a public health issue.  Lives can be lost to addiction and families broken up through abuse or neglect.  Many of us know of friends or family members who lives read like a drug version of Billy Wilder’s 1945 classic The Lost Weekend.  These individuals need medical help, not a prison term.  Drug policy needs to be decriminalized and shifted to a public health approach.  But many oppose decriminalization.  Why?
    The basis for opposing the use of drugs generally rests on one of two grounds. First, there is the moral claim that drug use is inherently immoral or bad because it alters the mind, debases human nature, or reduces the capacity for autonomy. The second claim for opposing the use of drugs is social, arguing that the use of drugs and drug related activity produces certain social costs in terms of deaths, black marketing, and crime. Another variant of this claim is that drug use diminishes social productivity by sustaining bad work habits, or by generating other social costs including increased health care costs.
    Ok, one might concede that use of illegal drugs is bad or that it constitutes a public health problem that needs to be addressed.  By having acknowledged this, the question is whether the current practice of drug criminalization and using police resources is the most effective policy to addressing this problem.  One argument against the decriminalization approach is the sending signals argument.  Specifically one major objection to the strategy proposed here is the argument that it would lead to an increase in drug usage and experimentation. Legalizing drugs would send a signal to individuals that drug usage is permissible and therefore more people would use them.
    It is just not clear what impact making drugs legal or illegal has on their usage.  Conceivably making them illegal creates a “forbidden fruit” aura around them that encourages their usage that would be abated by legalizing them.  The same might be said for tobacco products and teenagers or perhaps for any other products or practices socially shunned. Regardless of the reasons why individuals choose to use drugs, there is little evidence that legalization has resulted in increased usage.  In the Netherlands, decriminalization of some drugs has not lead to an increase in usage or in users trading up from soft to harder drugs.  Five years after Portugal decriminalized many drugs in 2001, there too was little evidence that it led to increased drug use.  Portugal’s drug usage rates remain among the lowest in Europe after legalization, while rates of IV-drug user infection rates and other public health problems dropped.  In legalization of medical marijuana in California, the decriminalization might have changed attitudes towards the drug but there was no evidence of change in its use.  So far the same is true in Colorado with outright legalized marijuana. There simply is no real evidence that legalization sends a signal that drugs are permissible and therefore more people use them.
    The point here is that the war on drugs has failed.  It was a political narrative used by politicians for four decades to promote their electoral interests at the expense of public good and taxpayers.  The criminal justice-prison industrial complex has gotten addicted to the war on drugs, making billions of dollars off of criminalization of drugs, especially marijuana. If we truly wish to win the war against drugs, whatever that means, jailing people is not the way to do it. It is time to end that narrative and establish a different approach that sees drug usage as a public health issue.  The $40 or so billion expended per year on drug enforcement could be better spent on other things.  This is a taxpayer issue and maybe in these difficult fiscal times the opportunity is there to rethink drug policy in Minnesota and America.