Federal Schizophrenia about Marijuana

There is supposed to be bipartisan support for amending the federal criminal code so that tens of thousands of non-violent criminals do not rot in prison at taxpayers’ expense. Among the “criminals” often mentioned are those convicted of possessing or selling marijuana, which is widely viewed as less harmful than legal substances such as alcohol or tobacco.

The Smarter Sentencing Act, S. 1410, sought to reduce jail time for low-level drug offenders. The Recidivism Reduction and Public Safety Act, S. 1675, facilitated early release for offenders who demonstrate a willingness to rehabilitate their lives. Both bills were expected to come to a vote in the Senate this summer. Both have been “placed on Senate Legislative Calendar under General Orders.” They will almost certainly stay dormant until 2015.

One reason the bills stalled: a Department of Justice (DOJ) announcement appeared to render them less urgent. In late April, Deputy Attorney General James Cole said the DOJ would consider clemency for nonviolent felons who had served a minimum of 10 years and who may have been “over-sentenced” due to zero-tolerance policies. Civil-rights advocates immediately commented that the lengthy review process and stringent DOJ standards would result in very few early releases. Nevertheless, the announcement may have blunted the zeal of prison reformers while doing nothing to dull that of drug-war advocates.

There is a key question. Is the Obama administration sincere in its stated intention to ease draconian drug sentences? Or is the rhetoric just that? A litmus test is to look at the federal government’s inconsistent and baffling stand on the legalization of marijuana. President Obama joked with CNN in 2007 about having “inhaled,” and he quipped “that was the point.” This seems to indicate a casualness about marijuana. But the federal government has aggressively attacked marijuana producers. For example, Operation Choke Point is a policy through which “undesirable” but legal businesses, such as marijuana-related ones in states like Colorado, are refused bank accounts. What is real — the words or the actions?

Is the Obama administration sincere in its stated intention to ease draconian drug sentences? Or is the rhetoric just that?

Perhaps it is best to look at the actions not taken by Obama.

Marijuana remains a Schedule I drug along with heroin. Schedule I drugs are “highly addictive” and have no “accepted” medical value, which means they cannot be prescribed by a doctor. Nevertheless, the Controlled Substances Act (CSA) authorizes the Attorney General to reclassify controlled substances. (The authority resides in the Drug Enforcement Agency, which is a branch of the DOJ.) In short, the Obama administration has the ability to immediately and unilaterally shift marijuana from a Schedule I to Schedule III drug alongside the likes of codeine. Or marijuana could simply be declassified.

But doing so could cause a political backlash and alienate the financial support of Big Pharma. Perhaps that is why Obama inaccurately told CNN interviewer Jake Tapper in January that “[w]hat is and isn’t a Schedule I narcotic is a job for Congress.” Certainly, Congress could address the issue, but Obama could as well. Nevertheless, the equivocation may have saved face with young voters, upon whom the November elections may depend.

Obama has other paths to legalize marijuana as well. He could wield a weapon with which he is quite comfortable: an executive order. Obama can exercise any power granted by Congress or the Constitution, which means he could declassify marijuana with the stroke of a pen. Indeed, he has done far more radical acts through executive orders, including the recent designation of approximately a half-million acres in New Mexico as a “national monument” site. Under the CSA, such legalization would require a favorable report from the Department of Health and Human Services but this federal agency, like the DOJ, is under Obama’s direction.

wendy mcelroyAs a third resort, Obama could simply order Attorney General Eric Holder to cease all federal prosecution of marijuana growers and dealers. In 2011, the DOJ announced it would not defend the federal Defense of Marriage Act in court. Now that the subject has changed to marijuana, however, Obama claims to lack the authority to cease prosecution of growers who clash with federal law.

America’s incarceration rate is by far the world’s highest, with the possible exceptions of North Korea and communist China, about which there is no reliable data. Americans are not more criminal than other people. But the government increasingly punishes peaceful behavior that is merely self-destructive or “undesirable.”

Placing a young, inhaling Obama in jail would not have accomplished anything positive. Why is he willing to persecute today’s young people for past behavior about which he jokes?

Wendy McElroy
The Independent Institute


  1. JoeWeinstein says

    Thanks for this article. However, contrary to the article’s last paragraph, maybe even Obama might have learned a lesson from being put in jail for inhaling.

    Obama’s particular person aside, we should maybe pause to note the larger issues of federal – and indeed state – schizophrenia.

    The ‘drug problem’ is one of needless and inane criminalization. This problem owes mainly to the provisions and underlying premises of the Nixon-era Controlled Substances Act – an act which self-righteously (and for police-state advocates self-servingly) criminalizes possession or ingestion of an arbitrarily chosen list of allegedly addictive or dangerously self-abusive substances – when in fact almost any substance (including sand or water) can serve in that role for someone prone to or determined to become addicted or be self-abusive.

    Given the nation’s prior experience with alcohol prohibition, enactment of CSA was already doubly inane and in main outline its results could be foreseen.

    Criminalization of drugs of course means that drug-criminalizing states with big cities are being afflicted with drug-distribution gangs and cartels, enabled by huge guaranteed profits from illegal drug trading, and their violent turf-wars. And meanwhile all those states are not only foregoing drug sales tax revenue but instead are expending large extra amounts on police and yet more amounts on incarcerating ‘criminal’ violaters.

    But no drug-criminalizing state is paying a heavier shoot-itself-in-its-own-feet price than California. California not only has big cities and many ‘criminal’ prisoners but is also a big-time drug-crop state: and because the great part of the crop is illegal, growers partially protect themselves by making sure to grow the crop not on their own lands but on public lands – and in weapon-backed defiance to sound natural ecology and environmental regulations. Public lands are now zones of risk not only for wildlife and wildlife-protection peace officers but also for innocent visitors in the outdoors.

    To add further and dangerous insult to California’s environment during the current (and likely continuing) drought, marijuana-culture – which criminalization has already divorced from attitudes of environmental responsibility – now is profligate in use of precious water and of chemical pollutants. Nominally legal as well as illegal cultivators are diverting and polluting unacceptably huge amounts from stressed streams and ground water aquifers.

    California is of course also a preferred destination for the children refugees who en masse are now fleeing the terror and thugocracy in those small countries (for a start, Guatemala, El Salvador and Honduras) which have come under domination of the superior economic and fighter power of the US-supplying drug cartels.

    So California gets to pay yet again for federal and state policies of drug criminalization.

Leave a Reply

Your email address will not be published. Required fields are marked *