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Two states and the District of Columbia voted to legalize marijuana in elections last week. The District’s legalization scheme is the first in the country to legalize use and possession but not sale of marijuana, instead authorizing non-commercial distribution with limits on plant growth and possession. The initiative also authorizes the city council to create a commercial system to legalize commerce in marijuana if they choose, but first the District needs to certify the election results and avoid Congressional obstruction on the measure.

Legalization is a good start, but it leaves criminal penalties in place that may be enforced against the poorest and most vulnerable D.C. residents.

Moderate drug reformers like Professor Mark Kleiman support the non-commercial approach because of the negative consequences we see in the wake of normalizing and commercializing alcohol after Prohibition. Specifically, Kleiman laments the advertising regime that promotes overconsumption of alcohol and the many deaths that come from chronic alcohol abuse.

We have a commercial society and a culture that embraces social drinking, at least at a certain age. Alcohol abuse remains a problem, and alcohol marketing may play a role, but it is not clear that the alcohol-related deaths Kleiman mentions are a direct or indirect result of that marketing. As Kleiman also notes, many of the health and other problems associated with alcohol abuse are not applicable to cannabis use or overuse, so it is also unclear whether the comparison is necessarily appropriate.

Nevertheless, courts have allowed time, place, and manner restrictions on alcohol and tobacco marketing. Given Colorado’s and Washington State’s strict rules on cannabis advertising, one could safely assume similar requirements would apply in the District.

Moreover, harm reduction—a prime focus of drug law reformers—should be broadly understood as not just reducing the harm of drug use, but the harms of criminalization. Kleiman is justifiably concerned with the potential public health problems with legalization (i.e., growth in the number of problem users). But the D.C. plan, without further action by the City, would not address the harms associated with criminalization if the homegrown share-economy supply can’t meet demand.

Growing marijuana is a luxury that not many among the urban poor can afford. Grow lamps, soil or hydroponic equipment, and acquiring the space necessary to grow plants are expensive. Further costs of fertilizer, electricity, and increased home security make widespread, non-commercial marijuana production in the poorer sections of the city unrealistic.

This, then, could turn a citywide black market into a localized gray market, in which sales and trafficking continue to flourish, prompting law enforcement crackdowns and continued incarceration. Perversely, the de facto legalization already enjoyed by the predominantly white, professional class in D.C. would be codified in a sharing economy, while the poorer minority neighborhoods that already bear the greatest burden of the drug war would likely continue to face drug market interdiction.

As Kleiman mentions in his piece, bags of sold or shared cannabis would be virtually indistinguishable from one another. Semi-legal status adds ambiguity to the law and complicates law enforcement’s efforts to curb the still-illegal and unregulated for-profit marijuana markets. People will likely still go to prison, families will continue to be disrupted or destroyed, drug deals will continue to lurk in the shadows, and thus neighborhoods will be less safe than they should be.

In a policing environment that has a history of unequal enforcement of laws and continues to tolerate civil asset forfeiture, any ambiguity invites abuse of the same people who’ve suffered under prohibition for years. More than four decades of experience should be more than enough to prove the criminal justice system is ill-suited for effective marijuana policy.

No system is perfect, but there is no reason cannabis producers should not be able to recoup their investments and grow their business, as it were, even if a commercial non-profit model is adopted. We can haggle about advertising, social propriety, and profit margins when the rules get drafted. However, leaving cannabis sales in the criminal realm will likely produce disastrous results for our most marginalized citizens and thus should be avoided if at all feasible.

The sale of marijuana in the District of Columbia should be legalized and regulated to effectively destroy the current black market. Anything less will leave an underground market in place, and with it more violence, dark alley deals, and punitive enforcement that has plagued the drug war since its inception.

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