Reason is in the final days of our annual Webathon, in which we remind you of our value proposition in order to get 800 small tax-deductible donations to keep our nonprofit journalism thriving for another year of Free Minds and Free Markets. It's not exactly 90 Days, 90 Reasons, but that's maybe because we've got some better reasons to loosen your wallet. For example, our coverage of the end of the Drug War.
Election Night was not yet over when Reason Senior Editor Jacob Sullum, author of Saying Yes: In Defense of Drug Use, started spelling out the coming legal showdown between the federal government and the states of Washington and Colorado, which had just voted to legalize marijuana, a development Sullum righteously described as "an unprecedented change that could help lead our country away from the unjust, cruel, and disastrous policy of using force to impose politicians' pharmacological tastes on the populace." While the rest of the national media was still weeks away from coming around to questions of federalism, jurisdiction, and the Supremacy Clause, Sullum had already been all over it.
Marijuana will still be prohibited under federal law. But contrary to an argument made by opponents of Proposition 19, the California legalization initiative that lost by five percentage points in 2010, that does not mean the Supremacy Clause makes these measures unconstitutional. As Jonathan Caulkins and three other drug policy scholars note in their new book Marijuana Legalization: What Everyone Needs to Know, "The Constitution does not allow the federal government either to order state governments to create any particular criminal law or to require state and local police to enforce federal criminal laws.
Even under national alcohol prohibition, which unlike the federal ban on marijuana was authorized by a constitutional amendment, states were free to go their own way. They could decline to pass their own versions of the Volstead Act (as Maryland did), repeal them (as a dozen states, including Colorado and Washington, did while the 18th Amendment was still in force), or simply refrain from prosecuting people under them (which was common in the wetter districts of the country). "The question is not whether a state could change its own laws," Caulkins et al. write. "Rather, the question is how the conflict with the continued federal prohibition would play out."
While the feds certainly can make trouble for any state that dares to legalize pot, there is a practical limit to what they can accomplish on their own. According to the FBI, there were about 750,000 marijuana arrests nationwide last year, the vast majority for possession. State and local police departments were responsible for something like 99 percent of those arrests. It simply is not feasible for the Drug Enforcement Administration (DEA)—which has about 5,500 special agents nationwide, compared to about 765,000 sworn personnel employed by state and local law enforcement agencies—to bust a significant percentage of people who grow pot for themselves and their friends (as Colorado’s initiative allows), let alone people who possess it for recreational use.
The DEA can raid state-legal pot shops, as it has done with medical marijuana dispensaries, but the number of potential targets will be considerably larger once the market officially expands to include recreational users. The Justice Department can use asset forfeiture as an intimidation tactic against landlords and threaten banks that accept deposits from pot businesses with money laundering charges. The Internal Revenue Service can make life difficult for pot sellers by disallowing their business expenses (but not, thanks to a tax law wrinkle, their "cost of goods sold," which includes the cost of buying marijuana). The feds could even threaten state regulators with prosecution for handling marijuana or facilitating the trade, although that seems less likely, since it would provoke a direct confrontation with state officials. (Washington's initiative seeks to minimize this risk by assigning the task of testing marijuana for regulatory purposes to private, state-approved laboratories.) The one thing federal drug warriors cannot do, judging from their track record even when they have the full cooperation of state and local law enforcement agencies, is suppress the business entirely.
This is a level of legal sophistication that the likes of Rolling Stone magazine is unable to reproduce. And here at Reason, we are stone-cold committed to covering every new development in this historic showdown, and using our access to various broadcast outlets to trumpet far and loud the preference for freedom over mindless, murderous tyranny. As I said yesterday during a wide-ranging, 20-minute conversation about pot legalization on MSNBC's Melissa Harris-Perry show, the question will soon boil down to who in the government will want to be known as the last one to burn a witch:
We still have more than 700,000 people a year coming face to face with the justice system in America over marijuana. That is an outrage, it should be an outrage on everybody’s conscience. These are people who will have a criminal record for the rest of their lives. They won’t be able to get a job. It disproportionately affects poor minorities, always has, always will even though they don’t smoke it any more than white dudes with beards. It’s a shock on our conscience and what we should be focusing on right now at this historic pivot point is pressuring politicians, Democrats and Republicans, in particularly the President of the United States who has a choice: how are you going to change your policy, your enforcement policies in the wake of two states basically seceding from your policy and also a majority, a growing majority of Americans who want full legalization.
It's a song I'll sing to any audience, including Fox Business Network in 2010.
For a blow-by-blow account of how the Obama administration is responding to this historic challenge, just follow the reporting of Reason's Mike Riggs. For the definitive story of Obama's terrible record on marijuana, read Sullum's October 2011 cover story, "Bummer: Barack Obama turns out to be just another drug warrior."
Reason.tv has produced dozens of gripping videos on the ongoing crackdown against medical marijuana. Our coverage of dispensary owner Charlie Lynch, who originally faced 100 years in prison, thrust the case into national prominence, and hopefully helped mitigate his eventual punishment. Watch it at this link:
And one our newest projects, the Reason-Rupe poll, has also shed important light on the rapidly evolving public opinion about marijuana policy.
You will not find a news outlet more committed and capable of covering this ongoing story than Reason. Does that matter to you? Do you want to see more of it? Then please consider donating to the Reason Foundation, the 501(c)3 nonprofit that underwrites our journalism efforts.
Donate $100 and you'll get a subscription, a T-shirt, a shout-out, and the chance to inflict your evil message on that scroll-bar thingie at the top of this page. A tax-deductible gift of $250 gets you all that plus a gift subscription and a nifty Reason bag (very good for raising eyebrows at Whole Foods). There are strange and wonderful benefits at the $666, $1,000, $2,500, $5,000, and (of course!) $5,125 levels as well. Go here for the whole list. And continue watching this space for more developments in America's longest war.