The laws and policies that define the legal status of marijuana across the United States have been redefined by public referendum or the state legislatures during the past few years. Marijuana is not new to the United States. It could be found in the colonies but there was little regulation of the plant, as it was not considered to be a hindrance. The first law to control marijuana use in the United States was passed in 1906, and since then, multiple regulations have been created to ban or limit use, growth, and distribution of the plant. This chapter provides a brief history of the policies created to restrict the use of marijuana and a description of the current federal policies.
About the Plant
Marijuana is the most commonly used illegal substance in the world.1 Also known as weed, pot, Mary Jane, and cannabis, among other terms, it is a naturally occurring plant that contains psychoactive substances. When it is smoked, eaten, or otherwise ingested, it can produce an altered state in users, making them feel a “high” that can be described as a sense of euphoria. It is also thought to alleviate pain or the symptoms of a multitude of medical conditions including glaucoma, AIDS, and epilepsy. Marijuana is typically considered to be a “softer” drug as compared to substances such as cocaine, meth, or heroin, which are sometimes referred to as “hard” drugs.
There are an estimated four hundred cannabinoids in marijuana. The primary psychoactive chemical cannabinoid in marijuana—the active ingredient that makes people high—is delta-9-tetrahydrocannabinol, more commonly known as THC.2 When a user ingests THC, the substance attaches to the cannabinoid receptors on the surface of the nerve cells that are found in the portion of the brain that affects a person’s concentration, memory, and coordination.3
Another cannabinoid found in marijuana is cannabidiol, or CBD, which is attributed to the medical properties of the plant. When this cannabinoid is ingested, users do not experience the same feelings of being “high” as they do after using THC. CBD is said to help reduce inflammation, pain, high blood pressure, congestion, nausea, and a host of other medical symptoms. It is thought to help those suffering from schizophrenia, multiple sclerosis, Tourette’s syndrome, and opioid addiction.
Most people think that there is only one kind of marijuana plant, but there are hundreds of subspecies of marijuana plants that each have their own characteristics. One main type is Cannabis sativa. This plant has long stalks and separated branches. Also known as hemp, this variety grows easily in many climates from Canada to England.4 It is usually produced for its durable fiber and is often used for things like textiles, cords, ropes, and twine. The cloth manufactured with hemp can be used for clothing, blankets, and boat sails. Hemp seeds are often used as a source of food and oil.5 This plant has only trace amounts of THC and does not make users “high” if ingested.
The second main type of marijuana is Cannabis indica, which is cultivated for its high THC content and intoxicating qualities. The THC is found in the flowers or buds on the plant, which are covered with tiny trichomes. The stems and stalks of the plant have no psychoactive ingredients. Users dry the leaves and flowering buds, which are then ingested to produce an altered state or to alleviate different medical symptoms.6 The amount of THC in different plants can vary dramatically because unique strains have varying amounts of cannabinoids. The amount of THC in the plant can be affected by the location of the grow site, the weather, and even the time the plant is harvested.7
When this type of marijuana is ingested, the user will feel sensations that are referred to as being “high.” If the user smokes the plant, the effects can be felt within minutes; if the marijuana is eaten (i.e., in cookies or candy), the effects can take longer to appear. When a person uses marijuana, the THC hooks onto a protein in the brain called cannabinoid receptor type 1, also known as CB1. The THC found in marijuana is biphasic, which means that the drug can have different effects in different people or at different times.
In low doses, marijuana can affect the user’s senses and mood. The user may feel relaxed, elated, or blissful. Most users experience dilated pupils. They may also experience distortions in comprehension and visual perception, such as distance or colors. Some users report changes in their judgment and insight. A user may have dryness in the mouth, an increased pulse and blood pressure, sensitivity to the touch, an increased appetite and involuntary twitching. Some users feel moments of ecstasy while others report feeling nauseous. Marijuana may impact memory and a user’s ability to learn new things. Users also experience difficulty in motor control and may stumble or feel uncoordinated. A well-known effect is an increase in appetite, referred to as the “munchies.”
If users ingest a large dose of marijuana, they may experience delirium, nervousness, hallucinations, paranoia, and feelings of being out of control. Others experience anxiety, symptoms of panic attacks, extreme nausea and vomiting, or psychotic reactions. Some report periods of amnesia while using marijuana. This can increase the chance that a user will engage in violent behaviors.8
The effects of marijuana use are partly influenced by one’s state of mind and also by the environment or setting in which the individual is in. This state of being “high” or “stoned” can last a few hours after ingesting the product.9 Because the THC is stored in the body’s lipophilic tissue (fat cells), it remains in a user’s bloodstream for days. Trace amounts of THC are released slowly into the body, but the amounts are so small that the user does not feel any effects.
Another form of marijuana is called hashish, or hash. It is compressed resin that is produced when cannabinoids are extracted from the leaves and flowers of the marijuana plant. Hash is most often produced in northern Africa or Asia. It can be eaten but is more often smoked in a pipe or bong. Another product, hash oil, is the end result of extracting the THC through a chemical process. It has a high content of THC and is often found in marijuana dispensaries. Some people choose to mix hash oil with different types of oil for use in cooking and making edibles.
There are indications that the potency of marijuana has increased in recent years. Growers have learned better methods of producing marijuana and have created new strains of the plant with higher levels of THC. It has been reported that the marijuana now being sold legally in Colorado has about three times as much THC as the marijuana that previously was sold on the street.10 This change has potentially dangerous effects. Users may get a more intense effect from using the drug than in the past, possibly increasing the risk of adverse effects (paranoia, anxiety). The higher potency could be dangerous to inexperienced users who may unwittingly ingest more than they should.11 At the same time, as marijuana growers have made the strains more potent, they have also reduced the amount of cannabidiol (CBD) in the plant, which is the component that may have medical benefits.12 It should be noted that some plants are genetically engineered to have more CBD than THC. Some different strains of marijuana are listed in box 2.1.
Textbox 2.1. Strains of Marijuana
Black Beauty: can be used to increase appetite or for posttraumatic stress disorder; can help users feel relaxed, alert, and sociable
White Widow: a popular type of marijuana
Big Bud: winner of the Cannabis Cup
Ice: a newer strain of marijuana that is highly crystalline and produces a strong high
Jack Herrer: considered to be the world’s best marijuana
Master Kush: two-time winner of the Cannabis Cup
Papaya: has a tropical taste; makes users feel lethargic
Skunk: one of the most widely used strains worldwide; smells “skunky”
Super Glue: has woodsy, earth tones; makes users feel giggly
Buddha’s Sister: helps with arthritis and Crohn’s disease
Grape Krush: provides a warm and relaxing sensation
Power Plant: contains high levels of THC, which produces a strong high
Atomical Haze: known to be useful for reducing stress
Girl Scout Cookies: an extremely potent variety
Willie Nelson: recommended for people suffering from depression and anxiety
Source: “Types of Marijuana,” www.marijuana-picture.com/types_of_marijuana_gallery_4.html; “Strains,” www.marijuana.com/strains.
There are many ways to ingest marijuana. The method most widely used is smoking, which allows the cannabinoids to be absorbed quickly into the bloodstream. Marijuana can also be eaten in food products, including cookies, brownies, soda, or tea. It is also used in salads and infused into oils. Marijuana that is ingested orally is referred to as an edible. Some people use marijuana in lotions or salves.
When Colorado and Washington State legalized recreational marijuana, there were no packaging or labelling requirements for edible products. Many of the edibles were sold in bright packages that looked like any other candy product. As a result, some people did not recognize the possible risk the product posed and ate too much. Emergency room personnel reported an increase in visits by people who ingested more than they should have. More young children were admitted to the hospital after mistakenly eating edibles.13 There was also an increase in calls to poison control centers.
As a result, state legislatures in Colorado, Alaska, Oregon, and Washington passed new laws requiring manufacturers to create packaging for edibles that reflect the product’s contents. In Colorado, Washington, and Oregon, officials created a universal symbol that must be applied to the labels of edible marijuana products. In Oregon and Colorado, the new laws require that users be informed if pesticides were used on the product. Manufacturers in Colorado and Oregon must include a nutrition facts panel on the packaging of all edible products, and in Alaska and Oregon, manufacturers are required to report how much THC is included in a single serving of the product. The legislation in all of these states requires that the packaging not be made attractive for children in order to deter them from unintentionally eating the product.14
Marijuana remains in the body after use and can be detected in a user for many days. If the person uses marijuana often or uses a lot of it, he or she can test positive for weeks after use. THC can also remain in a person’s hair for months. However, testing hair can be a lengthy and expensive process.15
It is currently illegal to grow, distribute, possess, or use marijuana in the United States under federal law. The Controlled Substances Act passed in 1970 categorizes marijuana as a Schedule 1 drug, meaning that it has no medical benefits and a high risk of abuse. Many states allow marijuana use for medical or recreational reasons. In those states where marijuana remains illegal, the punishment for possessing it includes fines, imprisonment, and forfeiture of property. However, it was not always this way. In the section that follows, we see that marijuana has a long history in the United States and around the world.
History of Marijuana Use
Marijuana has been used for thousands of years for many purposes. It has been used as a medicine, food, fiber, and, of course, as a recreational substance. The use of marijuana probably began in China, where the seeds were used as a food source. In fact, for thousands of years, marijuana was the second or third most prominent agricultural food source in that country.16 Marijuana was also used in early Chinese culture for its strong fibers to make rope and fabric and to make hemp paper.17
The Chinese also relied on the medicinal qualities of the plant. The writings of Emperor Shen Nung in 2737 BC mention marijuana,18 and a medical text from 1578 AD describes medical purposes for marijuana use. In this text, marijuana is described as a treatment for hundreds of medical problems including diarrhea, vomiting, parasitic infections, rheumatism, malaria, gout, and absentmindedness.19
Marijuana was found not only in China but in other cultures as well. The Hindus and Nihang Sikhs from India and Nepal were known to have consumed the plant, and the ancient Assyrians may have used marijuana in religious ceremonies.20 Greeks relied on marijuana to relieve swelling, earaches, and edema, and others relied on it to stop nosebleeds and dress wounds on their horses.21 Marijuana was used by ancient Jews, early Christians, and early Sufi Muslims.22 Evidence indicates that marijuana was used in Egypt to treat gout, foot pain, eye problems, and hemorrhoids. Medical treatments using marijuana were common for snakebites, asthma, and dysentery in Africa in the fifteenth century,23 and in Rome, a doctor in the army of Emperor Nero recommended marijuana for multiple ailments including earaches.24
Marijuana has a long history in the United States. In 1492, Christopher Columbus had marijuana on his ships that came to the new world. The ships reportedly carried enough to last the crew through the journey until they could plant more.25 In Jamestown, the first permanent English settlement in America, the marijuana plant was grown for its fiber content and became a major commercial crop along with tobacco. It became an essential part of Jamestown’s economy, so that in 1619, Virginia made it a law that colonists grow hemp. Those who grew it were rewarded with coins, and those who did not faced possible penalties.26
Many of the early U.S. presidents grew marijuana. George Washington grew the plant for its hemp in 1765 and continued to do so for about thirty years. Some reports suggest that he grew it for medicinal reasons but also for its psychoactive qualities.27 John Adams and Thomas Jefferson, the second and third presidents of the new country, also grew marijuana for its fiber. It is believed that Jefferson grew marijuana in a portion of his private garden, but there is no evidence that he smoked it or any other substance.28 More about this is in box 2.2.
Textbox 2.2. The Founding Fathers and Marijuana
It is a common misperception that founding fathers George Washington, Thomas Jefferson, James Madison, and Ben Franklin grew and used marijuana for recreation and enjoyment. It is likely that the founding fathers grew Cannabis sativa, the variety of marijuana also known as hemp. It has very little THC and is not used to get high. In colonial America, hemp was considered to be a valuable product that had the potential to be extremely profitable. At that time, hemp was a crop grown for the fibrous nature of the product. It was used to make rope and canvas products for ships, linen cloth for fabric, and pulp for paper. In the early 1600s, every farmer in Virginia was required to grow hemp. It was then used as legal tender in that state and in Pennsylvania and Maryland.
The founding fathers each spoke about the benefits of hemp. George Washington grew hemp on his farmlands. Ben Franklin used hemp fibers to make paper in his paper mill. But it is unlikely that Washington and Jefferson grew hemp as a way to get high or for recreational reasons. If the founding fathers did smoke hemp, they likely didn’t get high from it.
Source: “Busting Some Myths about the Founding Fathers and Marijuana.” The National Constitution Center. https://constitutioncenter.org/blog/busting-some-myths-about-the-founding-fathers-and-marijuana.
The use of marijuana in the United States grew in the late 1880s. A variety of medicines that included marijuana were readily available in pharmacies and drugstores.29 It was used commonly to treat maladies such as skin inflammation and rashes, rabies, and tetanus.30 The U.S. dispensatory in 1854 listed multiple uses for marijuana, including gout, tetanus, cholera, convulsions, depression, and insanity. The United States Pharmacopeia from 1850 to 1942 suggested that marijuana be used to assist with nausea, rheumatism, and for contractions during labor and delivery.31
In the early 1900s, the outlook on marijuana began to change. Many states started to pass laws banning the use of marijuana. The first state to do so was Massachusetts in 1911. In 1913, Maine, Wyoming, and Indiana banned use of the plant, followed by New York City in 1914. Utah and Vermont followed suit in 1915, with Colorado and Nevada banning it in 1917.32
Medical Marijuana
Marijuana has been used for centuries for medical purposes. In 1839, a professor of chemistry and surgeon in India published a study on the effects of marijuana for treating diseases. He relied on case studies of people who were suffering from diseases such as rheumatism, cholera, and tetanus and who found relief through the use of marijuana. Moreover, there were no serious side effects. He was able to convince people that marijuana could be an effective medical treatment option.33
Today, marijuana is reported to help with a variety of symptoms, including nausea, pain, and headaches. A 2014 survey of doctors found that more than two-thirds agreed that marijuana should be an option for their patients.34 In 2017, the National Academy of Medicine (NAM) reported that there was considerable evidence that marijuana could be an effective treatment for patients who suffer from nausea or chronic pain.35 Some of the reasons patients use medical marijuana are listed in box 2.3.
Textbox 2.3. Ailments Treated with Marijuana
AIDS (wasting syndrome)
alcohol withdrawal
Alzheimer’s disease
anorexia
cancer
Crohn’s disease
depression
diabetes
fibromyalgia
glaucoma
high blood pressure
insomnia
migraines
pain
seizures
Synthetic marijuana, or Marinol, is sometimes used to increase a patient’s appetite or to reduce nausea. Many people report that it does not work as well as smoking marijuana. It is also reported to cause serious side effects in some users, such as depression, paranoia, hallucinations, and psychosis.36
Federal Laws on Marijuana
Marijuana was legal and commonly used through the nineteenth century as a pain reliever and remained as such until the invention of aspirin. It was used in some patent medicines, but most of those contained cocaine or opium. The earliest ban on the sale of marijuana was in 1906 when the Pure Food and Drug Act was passed in Congress and signed into law by President Roosevelt. The law created the Food and Drug Administration (FDA), which was given the task of regulating the safety of all foods and drugs that would be consumed by humans. Provisions in the law also limited the sale of some drugs without a prescription from a physician and required specific labelling for any drug with the potential to be habit forming.37 This meant that any product that contained alcohol, marijuana, opium, cocaine, or any other addictive substance had to indicate that to the consumer. In addition, the law limited marijuana use for research studies overseen by the FDA and outlawed importation of the drug from Mexico not intended for medical purposes.38
In 1914, Congress passed the Harrison Act as a way to regulate the importation and use of opium. The law also banned the buying and selling of marijuana for nonmedicinal purposes. It did not prohibit the use of marijuana for medical reasons, and people continued to use it for that.39
During the 1920s, when Prohibition outlawed the use of alcohol, marijuana became more popular.40 Its use was linked with jazz musicians and those in show business in New Orleans41 and with immigrant Mexican workers who came to the United States seeking jobs.42 At this point, marijuana was not used by most Americans. Marijuana use by Mexicans became a concern to many Americans who believed that “all Mexicans are crazy, and this stuff is what makes them crazy.”43 It was even more dangerous because it was thought that using marijuana gave users “superhuman strength and turned them into bloodthirsty murderers.”44
In the 1930s, Harry Anslinger, the head of the U.S. Federal Bureau of Narcotics (part of the Department of the Treasury), was vehemently opposed to the use of marijuana.45 To Anslinger, marijuana was a powerfully addictive and harmful drug, and users were often known to use harder drugs. It was reported that Anslinger, as a way to influence the public’s attitudes toward marijuana, would “fabricate horror stories” about marijuana use and the violent crime that users would commit after using it.46 Anslinger often blamed Mexicans for bringing the drug into the United States and then for committing crimes after using it. He said “marijuana was introduced into the United States from Mexico and swept across America with incredible speed.”47 Further, “smoking marijuana inspired blacks and Hispanics to commit rape and engage in other acts of uninhibited violence.”48 Anslinger reported that a man from Florida smoked marijuana then used an axe to kill his family.49
Anslinger successfully waged a public “misinformation campaign” against marijuana in which he portrayed it as causing insanity and violence.50 Because of his antimarijuana campaign, most people believed that those who used marijuana would become violent criminals. He successfully influenced federal policies and public opinion to regard marijuana as an evil drug and was able to convince many states to pass laws to outlaw the use of the plant.51 Many other states disagreed with Anslinger and refused to take part. They considered Anslinger to be interfering in their affairs. More on Harry Anslinger is provided in box 2.4.
Textbox 2.4. Harry Anslinger (1892–1975)
Harry Anslinger was born in Altoona, Pennsylvania. Early in his law enforcement career, Anslinger was hired to investigate arson cases and to gather statistics. During World War I, Anslinger became an overseer of government contracts. He remained in Europe at the end of the war to investigate drugs being smuggled from Germany into the United States. This led him to the Bahamas to study the illegal transportation of rum, where he convinced officials to improve their record keeping of rum shipments. This was such a success that Anslinger was appointed to serve in the Prohibition Unit in the United States as the chief of the Foreign Control section, later becoming the assistant commissioner of prohibition. He fought alcohol smuggling by increasing punishments for violators. At the end of Prohibition, Anslinger became the chief of the Federal Bureau of Narcotics, serving in that position from 1930 to 1962. He often described the dangers of drug use, seeking tougher punishments for sellers and users. He focused attention on publicizing the dangers of drugs and fought to get major legislation passed by Congress to increase the criminalization of marijuana and to establish mandatory minimum sentences for drug offenders and traffickers. Anslinger retired in 1962 but continued the fight against drugs by becoming the U.S. representative to the United Nations Narcotics Commission. He passed away in 1975 at the age of eighty-three.
Source: Frydl, Kathleen J. (2013). The Drug Wars in America, 1940–1973. Cambridge: Cambridge University Press.
Because of Anslinger’s actions, Congress passed the Marijuana Tax Act of 1937, and President Roosevelt signed it into law. This new law did not ban marijuana use but imposed new laws that restricted its use. Under the law, anyone who bought, sold, or grew marijuana had to file paperwork with the federal government and buy a stamp from the Department of the Treasury. The cost of the stamp varied. Producers or medical professionals paid $1 per year; those who were not in the medical field paid $5; and anyone who imported or manufactured the drug paid $24. Those who were caught growing or possessing marijuana without the stamp faced criminal penalties that included a $2,000 fine and up to five years in prison.52
Interestingly, the Treasury did not issue any stamps. Since people were unable to purchase the stamp, people who grew, sold, or possessed marijuana were breaking the law.
Additionally, the regulations included in the law made it difficult if not impossible for physicians to prescribe marijuana to patients. Most doctors decided it was safer not to prescribe marijuana to patients and to rely on other drugs instead. In essence, the Marijuana Tax Act put a halt to the medical use of marijuana in the United States at that time.53 Moreover, many growers found it too expensive to grow the plant legally. In the long run, the new law caused marijuana products to be grown and sold illegally.54 As an interesting note, the Marijuana Tax Act was ruled unconstitutional by the U.S. Supreme Court in 1969 in the case of Leary v. United States (see box 2.5).
Textbox 2.5. Court Decision from Leary (395 U.S. 6 [1969])
In December 1965, Timothy Leary was travelling from New York to Mexico with his daughter, son, and two others. They were denied entry into Mexico and chose to return to the United States via the International Bridge to Texas. A customs officer found some marijuana in the car and in the daughter’s possession. Leary was convicted under the Marijuana Tax Act because he had knowingly facilitated the transportation and concealment of marijuana without paying the transfer tax required by the Marijuana Tax Act. Leary claimed that his conviction under the Marijuana Tax Act violated his privilege against self-incrimination.
The court decided that the law denied the defendant due process of law, a violation of the Fifth Amendment. They found that the Marijuana Tax Act compelled Leary to expose himself to a “real and appreciable” risk of self-incrimination and required him to identify himself not only as a transferee of marijuana but as a transferee who had not registered and paid the tax.
The court reversed Leary’s conviction, noting that “nothing in what we hold today implies any constitutional disability in Congress to deal with the marijuana traffic by other means.” Not long after, the Marijuana Tax Act was repealed by members of Congress when they passed a new law, the Comprehensive Drug Abuse Prevention and Control Act, in 1970.
In 1944, a report called “The Marihuana Problem in the City of New York” was published. The document, prepared by the New York Academy of Medicine, was more widely referred to as the LaGuardia Committee Report after the mayor of New York, Fiorello LaGuardia. The mayor, unsure whether marijuana caused crime and mayhem, appointed a group of experts to study the social, medical, and psychological effects of marijuana use on the city. The committee members studied seventy-seven inmates who all admitted to being long-term users of marijuana. The members concluded that use of marijuana does not lead to addiction, violent or antisocial behavior, uncontrollable sexual urges, nor to the use of other drugs. They also concluded that most school-aged children did not use marijuana, nor did most juvenile offenders, and that marijuana use did not result in changes to a person’s personality. LaGuardia himself wrote that the drug should not be decriminalized but noted that more research should be done on the possible use of marijuana to treat those addicted to narcotics.55
Anslinger was furious about the report and sought to discredit it. He destroyed every copy he could find. He sought to disgrace those who disagreed with him. Many of his adversaries were in the entertainment industry and feared potential repercussions of Anslinger’s attacks. To prevent this, they allowed Anslinger to review movie scripts that referenced drug use, and he banned any that he considered to be offensive.
More restrictions on marijuana were established in 1951, when Congress passed the Boggs Act, signed into law by President Truman.56 This new law increased the mandatory minimum sentences for people who imported marijuana into the United States. It also established sentences for anyone who received, concealed, bought, sold, transported, or trafficked in marijuana. Those convicted faced fines of up to $2,000 and prison terms of two to five years. For a second offense, the possible sentence increased to five to ten years, and offenders faced ten to twenty years for a third offense. Additionally, the Boggs Act established that marijuana had no therapeutic uses so it was no longer was considered to be a medicine.57
Four years later, in 1956, Congress instituted further limits on marijuana with the Narcotic Control Act of 1956. This new law established increased penalties for those who produced, distributed, or used marijuana. There was a mandatory two- to ten-year prison term for a person convicted of possession of marijuana. If the offense was serious enough, the offender could be sentenced to death.58 Some states added additional penalties. In Missouri, for example, a person convicted of a second offense for marijuana possession could be sentenced to a life term in prison.
Even though marijuana was illegal in many states and by the federal government, marijuana was still used by a significant number of people.59 In the 1960s, the plant reemerged as a fashionable drug among white middle-class youth who saw it as a way to rebel against authority and reject society’s value system.60 Veterans returning from Vietnam used it to deal with injuries and posttraumatic stress disorder. It is no surprise that growing public concern about the drug resulted.
In April 1968, President Johnson created a new agency called the Bureau of Narcotics and Dangerous Drugs, which spotlighted illicit drug and narcotic use in the United States. More action to ban drugs occurred during the Nixon administration. A major antinarcotics law, the Comprehensive Drug Abuse Prevention and Control Act, sometimes known as the Controlled Substances Act (CSA), was passed in 1970. The intent of the law was regulating the legal drug industry while at the same time limiting the transportation and distribution of illegal drugs in the United States. Provisions in the law abolished mandatory minimum sentences for marijuana offenses and also reduced possible penalties for conviction of marijuana possession.
The law created five “schedules” or classifications of drugs, which were based on whether the drugs had recognized medical benefits to patients and also on their potential for abuse and addiction. All drugs placed in Schedule 1 were deemed to have no recognized medical value and a high potential for abuse and addiction. Examples of Schedule 1 drugs include heroin, LSD, and hashish. Those in Schedule 2 had some limited or accepted medical purpose, along with a high potential for abuse, such as barbiturates and amphetamines (morphine and cocaine). All Schedule 3 drugs had recognized medical uses and high potential for abuse, including codeine. Drugs identified in Schedule 4 had a lower potential to cause psychological dependence and abuse than those in Schedule 1, 2, and 3 and currently acceptable medical uses. Those drugs placed in Schedule 5 had an accepted medical use but a low potential for abuse. Marijuana was placed into Schedule 1, indicating that it has no medical value and a high potential of abuse. The drug schedules are outlined in more detail in box 2.6.
Textbox 2.6. Drug Schedules
Schedule 1 drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule 1 drugs are heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), ecstasy, methaqualone, and peyote.
Schedule 2 drugs, substances, or chemicals are defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence. These drugs are also considered dangerous. Some examples of Schedule 2 drugs are combination products with less than 15 milligrams of hydrocodone per dosage unit (Vicodin), cocaine, methamphetamine, methadone, hydromorphone (Dilaudid), meperidine (Demerol), oxycodone (OxyContin), fentanyl, Dexedrine, Adderall, and Ritalin.
Schedule 3 drugs, substances, or chemicals are defined as drugs with a moderate to low potential for physical and psychological dependence. Abuse potential for Schedule 3 drugs is less than Schedule 1 and Schedule 2 drugs but more than Schedule 4. Some examples of Schedule 3 drugs are products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, and testosterone.
Schedule 4 drugs, substances, or chemicals are defined as drugs with a low potential for abuse and a low risk of dependence. Some examples of Schedule 4 drugs are Xanax, Soma, Darvon, Darvocet, Valium, Ativan, Ambien, and Tramadol.
Schedule 5 drugs, substances, or chemicals are defined as drugs with lower potential for abuse than Schedule 4 and consist of preparations containing limited quantities of certain narcotics. Schedule 5 drugs are generally used for antidiarrheal, antitussive, and analgesic purposes. Some examples of Schedule 5 drugs are cough preparations with less than 200 milligrams of codeine per 100 milliliters (Robitussin AC), Lomotil, Motofen, Lyrica, and Parepectolin.
Source: “Drug Scheduling.” Drug Enforcement Administration. www.dea.gov/druginfo/ds.shtml.
Congress did not pass any further significant drug control legislation until the Anti-Drug Abuse acts of 1986 and 1988, which became part of President Reagan’s War on Drugs. Among other things, the laws increased minimum penalties for the possession or sale of large amounts of marijuana. The sentence offenders received for violating the law depended in part on the amount of drug they possessed. A person in possession of one hundred marijuana plants received the same sentence as a person who possessed 100 grams of heroin. Serious offenders could face up to life in prison and a $10 million fine. Penalties doubled for offenders who sold drugs to minors or who used minors to sell drugs.
The 1988 bill not only increased penalties for drug law violations, but it created grants to help schools and communities pay for educational programs aimed at deterring drug use and funding treatment programs. In addition, the federal government created a new position, the “drug czar,” who was tasked with overseeing the nation’s antidrug policies.
Current Federal Marijuana Policy
At this point, the laws regulating marijuana are confusing. There are federal, state, and even some local laws regulating marijuana. At the federal level, there has been limited legislative action on marijuana since the 1970 CSA was passed. Proposals have been introduced into Congress that would allow for federal laws permitting medical marijuana. One of those proposals, from Representative Barney Frank (D-MA), included provisions to eliminate federal restrictions on marijuana and allow states to decide. Despite support from many states, the bill did not pass Congress. Box 2.7 gives more examples of bills proposed in Congress concerning marijuana.
Textbox 2.7. Selected Marijuana-Related Bills Proposed in Congress
H.R. 4467/S. 2504, 114th Congress (2015–2016): Marijuana Advertising in Legal States Act of 2016 (MAILS Act) proposed to modify the Controlled Substances Act (CSA). Under the CSA, it is illegal to place an ad in a newspaper, magazine, or other similar source as a way to receive, buy, or distribute a Schedule 1 controlled substance such as marijuana. Under the proposed law, this advertising prohibition would not apply to ads for marijuana-related activities that abide state law.
S. 683, 114th Congress (2015–2016): Compassionate Access, Research Expansion, and Respect States Act of 2015 (CARERS Act of 2015) would amend the CSA so that any provisions related to the control and enforcement of the laws pertaining to marijuana in the CSA shall not apply to those who are in compliance with state laws. It also transfers marijuana from a Schedule 1 to a Schedule 2 drug.
H.R. 1635, 113th Congress (2013–2014): National Commission on Federal Marijuana Policy Act of 2013 proposed the creation of a new agency called the National Commission on Federal Marijuana Policy, which would review all existing federal policies related to marijuana in light of the increasing number of states in which marijuana is now permitted for medical or recreational use.
H.R. 2306, 112th Congress (2011–2012): Ending Federal Marijuana Prohibition Act of 2011 proposed to amend the CSA to remove marijuana from Schedule 1 classification.
H. Res. 372, 105th Congress (1997–1998): Declared that the House of Representatives opposed the legalization of marijuana for medical reasons. The bill also recommended that state initiatives to legalize marijuana for medical reasons be stopped. In addition, the bill mandated that the attorney general provide members of the House Judiciary Committee information concerning the total amount of marijuana eradicated in the United States from 1992 through 1997 and provide information on the annual number of people arrested and prosecuted for violation of federal marijuana laws.
Individual states and cities that opposed the restrictions on marijuana set forth in the CSA decided to pass laws that allowed for marijuana use. San Francisco passed a ballot initiative in November 1991 that required state officials and the California Medical Association to list marijuana as an available medicine for residents of that state. The initiative also prohibited sanctioning physicians who recommended marijuana to their patients. The initiative, called Proposition B, was passed by voters with 79 percent of the vote.
Voters in the entire state of California chose to support Proposition 215, which was on the ballot in 1996 (see box 2.8). Also called the Compassionate Use Act, the proposal gave patients and their caregivers the right to possess and cultivate marijuana as a treatment for a variety of medical disorders including AIDS, cancer, and muscular spasticity. Moreover, doctors could not be sanctioned for recommending that patients use the plant.61 When Proposition 215 passed, California became the first state to legalize medical marijuana.
Textbox 2.8. Text of California’s Proposition 215 Initiative
Section 1. Section 11362.5 is added to the California Health and Safety Code, to read:
11362.5. (a) This section shall be known and may be cited as the Compassionate Use Act of 1996.
(b) (1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
(C) To encourage the federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
(2) Nothing in this act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
(e) For the purposes of this section, primary caregiver means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health or safety of that person.
Sec. 2. If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.
Other states followed California’s lead and passed legislation to allow residents to use marijuana for medical reasons. In November 1999, voters in Maine passed a proposal that allowed marijuana for medical uses, along with provisions for possession and cultivation. In June 2000, Hawaii legislators did the same, and in 2000, laws passed in Nevada and Colorado. The state legislatures in Vermont and Montana changed their laws to allow for medical marijuana use in 2004.62 This was followed by Rhode Island in 2006, New Mexico in 2007, and Michigan in 2008. In addition, Alaska, Colorado, Oregon, and Washington have passed laws that permit residents to use marijuana for recreational purposes.
Although these state laws permit cultivation, possession, and use of marijuana for either medical or recreational purposes, these acts remain illegal under federal law. Under the CSA, marijuana remains a Schedule 1 drug. That means it has no recognized medical benefits and a high potential for addiction and abuse. A person who imports, grows, cultivates, distributes, or uses the substance may be protected under state laws but not federal laws. Other drugs in this category include heroin and cocaine. A person using any of these substances could be charged with a federal crime even if the state permits it.
The policy implications remain unclear. In the United States, the federal government, particularly Congress, has the power to pass laws to regulate people’s behavior. The U.S. Constitution describes the types of laws that Congress can pass and the types that the states can pass. If the Constitution is silent on a particular subject, it is delegated to the states. The topics of crime control and drugs are not defined by the Constitution as areas in which the federal government can make laws. Therefore, laws that define crimes and sanctions should be passed by the states.
However, in the past sixty years or so, the federal government has passed numerous laws creating federal crimes, many regulating illicit drugs. This process of increased federal action in the area of crime has been called the “federalization of crime.” In essence, crime and drugs have moved from being an issue defined by states to an issue also defined by federal laws.
It should also be noted that in situations in which a state has created a law that conflicts with an existing federal law, the federal law supersedes the state law. This is called the Supremacy Clause. In the case of marijuana, many states have passed laws to regulate who can possess, use, manufacture, and transport the plant. However, these laws conflict with the federal CSA. In this case, federal law should prevail, and the new state laws on marijuana may be invalid.63
Memos
Attempting to address some of the confusion regarding the clash between the federal and state laws related to marijuana use, the Department of Justice issued a series of memos that outlined the status of federal enforcement efforts. The first of the memos was released in October 2009 by the U.S. attorney general at that time, Eric Holder. The memo, written by David Ogden, the deputy attorney general, became known as the Ogden memo (see box 2.9). In it, officials made it clear that Drug Enforcement Administration (DEA) agents would not raid marijuana dispensaries in states that had passed laws to allow for marijuana use. As written in the memo, “As a general matter, pursuit of [federal law enforcement] priorities should not focus federal resources . . . on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”64 For most people, this memo seemed to indicate that federal law enforcement would not carry out raids on dispensaries if the organizations were abiding by state laws.
Textbox 2.9. 2009 Ogden Memo
U.S. Department of Justice
Office of the Deputy Attorney General
MEMORANDUM
FOR SELECTED UNITED STATES ATTORNEYS
FROM: David W. Ogden, Deputy Attorney General
SUBJECT: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana
This memorandum provides clarification and guidance to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana. These laws vary in their substantive provisions and in the extent of state regulatory oversight, both among the enacting States and among local jurisdictions within those States. Rather than developing different guidelines for every possible variant of state and local law, this memorandum provides uniform guidance to focus federal investigations and prosecutions in these States on core federal enforcement priorities.
The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. One timely example underscores the importance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels.
The Department is also committed to making efficient and rational use of its limited investigative and prosecutorial resources. In general, United States Attorneys are vested with “plenary authority with regard to federal criminal matters” within their districts. USAM 9-2.001. In exercising this authority, United States Attorneys are “invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.” Id. This authority should, of course, be exercised consistent with Department priorities and guidance.
The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continue to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department’s core enforcement priorities.
Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:
Of course, no State can authorize violations of federal law, and the list of factors above is not intended to describe exhaustively when a federal prosecution may be warranted. Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are not expected to charge, prove, or otherwise establish any state law violations. Indeed, this memorandum does not alter in any way the Department’s authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.
Finally, nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law. Nor does this guidance preclude investigation or prosecution, even when there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves important federal interests.
Your offices should continue to review marijuana cases for prosecution on a case-by-case basis, consistent with the guidance on resource allocation and federal priorities set forth herein, the consideration of requests for federal assistance from state and local law enforcement authorities, and the Principles of Federal Prosecution.
Another memo was released in 2011 that seemed, in many ways, to reverse this policy. This memo became widely referred to as the Cole memo because it was written by James Cole, then the deputy attorney general. Cole instructed all federal law enforcement officials (including DEA agents) to put medical marijuana dispensaries at the top of their priority lists when enforcing federal laws on marijuana. A clause in the memo states, “persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.”65 Further, the document also stated, “such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA.”66 See box 2.10 for the text of the Cole memo.
Textbox 2.10. 2011 Cole Memo
Over the last several months some of you have requested the Department’s assistance in responding to inquiries from State and local governments seeking guidance about the Department’s position on enforcement of the Controlled Substances Act (CSA) in jurisdictions that have under consideration, or have implemented, legislation that would sanction and regulate the commercial cultivation and distribution of marijuana purportedly for medical use. Some of these jurisdictions have considered approving the cultivation of large quantities of marijuana, or broadening the regulation and taxation of the substance. You may have seen letters responding to these inquiries by several United States Attorneys. Those letters are entirely consistent with the October 2009 memorandum issued by Deputy Attorney General David Ogden to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana (the “Ogden Memo”).
The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels. The Ogden Memorandum provides guidance to you in deploying your resources to enforce the CSA as part of the exercise of the broad discretion you are given to address federal criminal matters within your districts.
A number of states have enacted some form of legislation relating to the medical use of marijuana. Accordingly, the Ogden Memo reiterated to you that prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority, but advised that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers. The term “caregiver” as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling, or distributing marijuana.
The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.
The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws. The Department of Justice is tasked with enforcing existing federal criminal laws in all states, and enforcement of the CSA has long been and remains a core priority.
James Cole wrote another memo that was released in 2013. In this memo, there were eight factors that law enforcement personnel were told to consider when deciding to enforce federal charges against those involved in a marijuana-related business. These factors included how successful the business was at preventing the distribution of marijuana to minors; if they prevented profits from the sale of marijuana from being transferred to any criminal enterprises (i.e., cartels); if the transportation of marijuana from states where it is legal to other states could be prevented; the prevention of state-authorized marijuana activity from being used to conceal the trafficking of other illegal narcotic drugs; the prevention of possible violence and the use of firearms in the cultivation and distribution of marijuana; prevention of drugged driving and other adverse public health consequences linked to marijuana use; prevention of growing marijuana on public lands; and prevention of possessing marijuana or use on federal property. The memo informs readers that if marijuana dispensaries were abiding by the state law and were operating in accordance with these eight priorities, the government should allow them to operate without federal intervention. If the laws were not extensive enough to address these eight priorities, the federal government could enforce the law against them.67
Near the end of the memo, Cole included the following, often referred to as the “safety clause”: “As with the Department’s previous statements on this subject, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. This memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law. Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA.” This statement is simply a reminder to all involved that marijuana is illegal under federal law and that law can be enforced at any time, regardless of state policy.68
Many people who work in marijuana-related businesses made note of the fact that Cole, in the 2013 memo, did not address concerns about the lack of banking options. Many businesses were unable to open accounts for the businesses since their profits are, under federal law, illegal. As defined by the federal Anti-Money Laundering/Bank Secrecy Act, profits earned from the sale of marijuana could be labeled as money laundering. If banks accepted money from these businesses, bank officials could also be charged federally and possibly lose their operating license. Without a banking option available to them, many marijuana businesses rely only on cash, resulting in large amounts of cash in their stores.
To address this problem, another memo was issued on February 14, 2014, by the Department of the Treasury’s Financial Crimes Enforcement Network. The “Banking Memo,” as it came to be called, provided banking officials with guidance on how they could facilitate banking for those involved in a marijuana-related business. The memo was intended to give bank officials in states where marijuana was legalized some direction regarding the legalities of banking with these businesses; it also provided them with some assurances that they would not be charged by the federal government for violating the Bank Secrecy Act. It was thought that once banking officials were satisfied that they would not be charged, more cash proceeds would end up in banks as opposed to safes in the stores. Moreover, there would be better record keeping on the sales of marijuana for tax purposes.69
One final memo was issued by Attorney General Holder in February 2015 providing evidence that federal prosecutors were not basing their sentences on mandatory minimum sentences when punishing offenders found guilty of marijuana offenses. In the memo it was pointed out that many offenders received lower sentences for their offenses than what was in the guidelines. This information was proof that federal officials were allowing marijuana businesses to operate without federal interference. This was well-received news from those involved in marijuana-related businesses, providing some relief that they were free to continue operating.70
The fears of marijuana business owners were also addressed by members of Congress, who passed the Rohrabacher-Farr bill, which limited federal action toward marijuana businesses. The bill forbade the use of federal funds to prevent states from implementing their marijuana laws. Originally passed in December 2014, the bill was reauthorized a year later in December 2015 with bipartisan support. According to the law, DEA agents were not permitted to use federal funds from the Justice Department to pay for raids on medical marijuana dispensaries in states where it was legal. The amendment was originally set to expire on September 30, 2017, but it was added as an amendment to a short-term spending bill that was signed in September 2018. This amendment renewed it through December 2018. If, in the future, the amendment is not again renewed, DEA agents could begin carrying out raids on marijuana dispensaries, even if state laws permit them to operate.
In January 2018, attorney general of the United States, Jeff Sessions, announced that the Trump administration was reversing the lenient policies of the Obama administration. The new policies gave local prosecutors the power to decide whether to prosecute marijuana cultivators, distributors, sellers, or users.
State Laws on Marijuana
For many years, cities and states have passed their own laws on marijuana. For example, in 1972, Ann Arbor, Michigan, chose to remove marijuana possession from the criminal code, making that act a minor offense, the equivalent to a parking ticket. Oregon followed suit, and in 1973 passed a law that decriminalized marijuana. A study on marijuana use in that state following the new law found that there was no apparent increase in the number of people who used marijuana. Moreover, the state pointed to a decrease in spending on law enforcement for enforcement of the law. Other states also decriminalized marijuana.
At this point, twenty-nine states and the District of Columbia have passed laws to legalize the use of marijuana for medical or adult recreational use. They have been passed either by referendum (voting) or legislative action. The laws in each state are different, but they allow their residents to ingest marijuana in some fashion without facing criminal charges. Most state laws require a medical diagnosis of specific conditions and a recommendation by a physician before patients are able to use the drug. Most states also require that patients be issued a medical marijuana card that identifies them as legal users. In some states, users are permitted to grow their own marijuana, but in other states this is not permitted. If patients are allowed to grow their own plants, the exact number of plants is determined by the state and varies from place to place. The amount of the product a person can carry is also different. The states where laws permit the use of marijuana are listed in boxes 2.11 and 2.12.
Textbox 2.11. States with Medical Marijuana Laws
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Hawaii
Illinois
Maine
Maryland
Massachusetts
Michigan
Minnesota
Montana
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Dakota
Ohio
Oregon
Pennsylvania
Rhode Island
Vermont
Washington
West Virginia
*District of Columbia
Source: State Marijuana Laws in 2017 Map. Governing the States and Localities. www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html
Textbox 2.12. States with Recreational (Adult Use) Marijuana
Alaska
California
Colorado
Maine
Massachusetts
Nevada
Oregon
Washington
Source: State Marijuana Laws in 2017 Map. Governing the States and Localities. www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html
Many states currently are struggling with how to determine if a driver is operating a vehicle while under the influence of marijuana (DUIM). It is not easy to test if a person has been using marijuana and is impaired in some way. It is accepted that laws should place limits on allowing marijuana users to drive. Although it is fairly simple to test a driver who is suspected of being under the influence of alcohol, it is much more difficult to test for marijuana use.
There are currently two ways to determine if a driver is under the influence of marijuana. One is the “per se” Blood Cannabis Content (BCC), which is used in Colorado and Washington, among other states. The states that use this test prohibit a person from driving a car if his or her blood test shows a BCC of 5 nanograms of THC per milliliter of blood. In other states, particularly Ohio and Nevada, the BCC limit is 2 nanograms per milliliter of blood. The second test is the “zero tolerance” test. According to this policy, drivers cannot have any trace of THC in their bloodstream. If they do, they can be charged with a criminal offense of driving while intoxicated (or something similar). This would be determined by a blood test.
The effects of marijuana legalization on driving are a concern to many. It is known that marijuana impairs judgment, reaction times, and motor coordination.71 However, one study shows that a year after medical marijuana laws were passed in fourteen states and the District of Columbia, there was an 8 to 11 percent decrease in in traffic fatalities. The authors suggest a correlation between legalized medical marijuana and lower consumption of alcohol. Users turn to marijuana instead of alcohol. The authors suggest that alcohol consumption is linked to an increased risk of accidents, which does not imply that a person who drives after using marijuana is safer than one who drives after drinking alcohol. Instead, alcohol is often used in public places such as restaurants and bars, whereas laws prohibit the use of marijuana in public.72
International Laws, Treaties, and Agreements
In addition to federal and state laws, there are international treaties and agreements that regulate the sale and trade of marijuana. The Single Convention on Narcotic Drugs passed in 1961 established the International Narcotics Control Board. Seventy-three countries signed on, including countries such as Afghanistan and Mexico, where a significant amount of drugs are manufactured. Over the years, more countries have opted to participate in the treaty. Currently, about 184 countries have signed on. When countries agree to participate, they agree to make the manufacture, trafficking, and possession of marijuana a criminal offense. If a country that has agreed to participate in the convention later decides to legalize the production and possession of recreational marijuana, it is in violation of the convention and it may have a statement condemning its actions made against it, but for the most part there are no serious repercussions. The International Narcotics Control Board was created to implement the convention.
In 1988, the United Nations passed the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which is sometimes referred to as the Vienna Convention. If a country agrees to participate in this agreement, it must enact a law prohibiting the possession of marijuana for nonmedical reasons. Those who are convicted of doing so could be sentenced for criminal behavior.
Marijuana has been made legal or decriminalized in other countries around the world in addition to the United States. Officials in Uruguay and the Netherlands decided to legalize it, and Australia and New Zealand are considering new laws that would make medical marijuana legal for their residents.73 Medical marijuana is currently legal in Israel and in Canada.74
Conclusion
There is a long history of marijuana use in the United States, both for medical reasons and for recreation. Federal laws ban the manufacture, possession, use, and distribution of marijuana, but many states have passed laws allowing for both. The laws are changing rapidly and will continue to do so. It is difficult to know what the future holds for marijuana, but there is no doubt that debate and changes will continue for years to come.