In the Weeds

HOW STATES ARE LEGALIZING
marijuana in the shadow
of a federal prohibition

Introduction

Policymakers considering adult-use marijuana legalization are not doing so in a vacuum.

To date, 10 states and the District of Columbia have already been down this path. Their experiences implementing new laws can serve as a potential roadmap for other states considering legalization. To paraphrase U.S. Supreme Court Justice Louis Brandeis, states can serve as “laboratories of democracy” that can inform legislation in other states.




LISTEN

Rockefeller Institute researcher Heather Trela discusses the nuances of marijuana legalization on Policy Outsider, the podcast of the Rockefeller Institute of Government.

1: In the Weeds with Heather Trela

Clash of Laws

"I’m not sure we’re going to be a better, healthier nation if we have marijuana sold at every corner grocery store.”

— Former United States Attorney General Jeff Sessions


"I think we should take this action for our state because of the beneficial criminal and social justice implications and the jobs that it will create."

— Illinois Governor J.B. Pritzker

Marijuana remains illegal at the federal level as legalization spreads through the states, creating a complex clash of laws.

Until the early 20th century, marijuana was used in the United States in a variety of ways and was mostly unregulated. Early colonists were encouraged by Britain to grow hemp and the crop was used in the production of rope, paper, and cloth. Marijuana was also an ingredient in mainstream medicines as a treatment for a variety of ailments, including cholera, dysentery, alcoholism, opiate addiction, epilepsy, and asthma. The recreational smoking of marijuana was also introduced.

The first regulation of marijuana occurred with the 1906 Pure Food and Drug Act, which required that over-the-counter drugs containing cannabis had to be labeled. As marijuana use was tied to the 1910 influx of Mexican immigrants to the US, 29 states passed marijuana prohibitions. In 1937, Congress passed the Marihuana Tax Act to “impose an occupational excise tax upon certain dealers in marihuana, to pose a transfer tax upon certain dealings in marihuana, and to safeguard the revenue therefrom by registry and recording.” The act did not criminalize the drug, per se, but failure to pay said taxes or follow regulations was punishable by fines up to $2,000, up to five years in jail, or both. The Marihuana Tax Act stayed on the books until 1969 when the Supreme Court struck it down as a violation of the Fifth Amendment protection against self-incrimination in Leary v. United States.

After the Marihuana Tax Act was deemed unconstitutional, the Nixon administration encouraged Congress to create a new system for classifying drugs based on their medical utility and addictive potential. The result was the 1970 Controlled Substances Act, which established federal drug policy. Marijuana — like heroin and LSD — was classified as a Schedule I drug, meaning it has no currently accepted medical use and has a high potential for abuse. With this classification, marijuana became illegal under federal law.

In 1996, California became the first state to enact medical marijuana legislation with the Compassionate Use Act. In the next four years, Oregon, Alaska, Washington, Maine, Hawaii, Nevada, and Colorado followed suit. Colorado became the first state to legalize recreational marijuana in 2014. As of April 2019, 10 states and the District of Columbia have passed legislation permitting recreational marijuana and 34 states and the District of Columbia have medical marijuana laws on the books.


Read the Series

In the Weeds

How are states legalizing a drug that's illegal under federal law? The Rockefeller Institute is studying legalized adult-use/recreational marijuana implementation, challenges, and economic impacts in New York and beyond. Read the findings and recommendations below.

Legalization Hits a Stumbling Block >

Adult-use legalization efforts recently stalled in New York and New Jersey, despite apparent public support. We examine why.

Why Is It So Hard to Pass Marijuana Policy Legislatively?


Of the 10 states that permit adult-use marijuana, only Vermont did so through the legislative process — permitting home cultivation of a small number of marijuana plants, but failing to tackle the more complex issue of creating a commercial market for retail sales. The other nine states have implemented adult-use through the initiative process, which allows citizens to propose a new statute to be approved directly by voters and circumvent the legislature. Why have efforts to pass adult-use marijuana stalled legislatively while they have achieved better success through ballot measures? Read More >

The Economics of Legal Marijuana >

A $1.7 billion adult-use marijuana industry in New York could generate a total economic output of $4.1 billion and total employment of 30,700.

The Economic Impact of Developing the Adult-Use Cannabis Industry in New York


One of the most effective arguments for the legalization of marijuana is the economic opportunity it would create for New York State and its residents. Previous studies have found that 63.4 percent of surveyed adults agree that the creation of the industry and corresponding jobs would be a justification for legalization. The legalization of marijuana provides an interesting case study and natural experiment in the field of economic development. It is rare that new industries and supply chains must be created in such a short time frame. Read More >

A ROADMAP FOR POLICYMAKERS >

State policymakers considering marijuana legalization and implementation should answer these questions first.

Six Issues States Need to Consider


The 10 states that have implemented legalized adult-use marijuana are operating in the somewhat uncertain context of regulating a practice that is illegal at the federal level. Presumably, no state wants to do anything that brings the attention — and enforcement — of the federal government, so there is added pressure on implementation decisions. No matter how states ultimately choose to adopt and implement adult-use marijuana, however, there are some common questions that states should consider, drawing from the experiences of the states that have gone before them. Read More >


LISTEN

1: A Gateway Drug for Federalism

Marijuana & the Opioid Crisis >

Emerging data indicate that marijuana can play an important role as a less-addictive alternative to opiates.

Can Marijuana Alleviate the Opioid Crisis? Data Suggest Yes


The damage from opioid abuse is not limited to individual users, but has ripple effects that impact families, communities, and governments. Policymakers and activists are grappling with how to best address the problem, but are often stymied by budget constraints and a lack of evidence as to what actually works. Recent research, however, has found that legal access to marijuana may be a potential tool for addressing the opioid crisis. Read More >

Chaos in the States? >

The Cole memo protected states that had legalized marijuana from federal prosecution — until it was rescinded last year.

Attorney General Sessions Makes Move against State-Legalized Marijuana


The laissez-faire approach codified by the Cole memo allowed the legalization of both medical and recreational marijuana in the states to grow without being challenged by the federal government. By abandoning it, former Attorney General Sessions gave US attorneys the freedom to begin prosecuting people who violate the federal prohibition on marijuana, regardless of state law. Read More >

Civil Asset Forfeiture >

Marijuana dispensaries could be particularly vulnerable to federal civil asset forfeiture, as the drug is classified as illegal by the federal government despite legalization in many states.

Legalized Theft or Necessary Law Enforcement Tool?


In July 2017, Attorney General Jeff Sessions announced that the Justice Department would allow federal agency forfeiture, also known as “federal adoptions” of assets seized by state and local law enforcement agencies. The practice, an expansion of civil asset forfeiture, was curtailed by the Obama administration in 2015 by then-Attorney General Eric Holder. Though civil asset forfeiture is not necessarily well-known to the public, the practice is unpopular across the political spectrum. Read More >

Federal and State Power Showdown >

The Rohrabacher-Blumenauer amendment prevents the federal government from committing funds to interfere with the implementation of legalized medical marijuana in the states — but it must be renewed each year.

House Blocks Amendment to Protect Medical Marijuana in the States


Without the Rohrabacher-Blumenauer amendment, the Department of Justice is free to invest resources in prosecuting dispensaries and medical marijuana users for violations of federal law. States, meanwhile, are not walking away from the continued expansion of legalized marijuana despite the potential uncertainty. Read More >



The Researchers



Heather Trela is chief of staff and fellow at the Rockefeller Institute of Government. Her research focuses on federalism issues with an emphasis on marijuana policy. She was a doctoral candidate at, and holds a master’s degree in political science from, the Rockefeller College of Public Affairs and Policy as well as a bachelor’s in economics and political science from Hartwick College.




Laura Schultz is director of fiscal analysis and senior economist at the Rockefeller Institute of Government. She explores how state and local governments can support innovation and generate economic growth, and evaluates the fiscal and economic impacts of federal, state, and local policies and emerging economic trends.

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