Although 44% of Americans Live in States That Have Legalized Pot, Federal Prohibition Is Not Likely to End Anytime Soon

The president supports the ban, and his fellow Democrats do not seem serious about attracting Republican support for repealing it.


As of today, recreational use of marijuana is legal in New Mexico, and the same thing will happen in Virginia and Connecticut on Thursday. Those states join two others that also legalized marijuana this year: New Jersey, which eliminated penalties for possessing up to six ounces in February, and New York, where possessing three ounces or less has been legal since March. Counting the other states that have legalized marijuana since 2012 (but excluding South Dakota, where a successful 2020 ballot initiative is tied up in litigation), 18 states will allow recreational use by the end of the week, representing 44 percent of the U.S. population.

Meanwhile, the federal government continues to treat marijuana as a highly dangerous drug with no legitimate uses. Simple possession of any amount is a misdemeanor punishable by up to a year in jail, while cultivation and sale are felonies punishable by a prison term of five years to life, depending on the amount.

In the eyes of the federal government, cannabis consumers are criminals so untrustworthy that they do not deserve Second Amendment rights, and they can go to prison for up to 10 years if they try to exercise them. State-licensed marijuana businesses are criminal enterprises, protected from prosecution and civil forfeiture only by the Justice Department's enforcement discretion and an annual spending rider that is limited to medical use.

Although nearly 70 percent of Americans think marijuana should be legal, that step is too radical for President Joe Biden, a supposedly reformed drug warrior who favors eliminating federal criminal penalties for simple possession but otherwise wants to maintain the longstanding conflict between state and federal marijuana laws. To give you a sense of how retrograde Biden's position is, President Jimmy Carter endorsed federal decriminalization way back in 1977, when Biden was serving his first term as the junior senator from Delaware and just 28 percent of Americans supported legalization.

The rest of Biden's party is much more receptive to repealing the federal ban on marijuana. According to a recent Quinnipiac University poll, 78 percent of Democrats favor legalization. So did nearly all of the candidates that Biden beat for the 2020 Democratic presidential nomination, including the California senator who became his vice president. The MORE Act, a bill that would have ended federal prohibition, passed the House in December with support from 97 percent of the Democrats who voted on it.

Still, it's not clear that Democratic legislators actually want to legalize marijuana. The MORE Act, which was reintroduced last month, attracted support from just five Republicans. It is chock-full of new regulations, taxes, and spending programs that seem designed to repel even Republicans who are sympathetic to the idea that the federal government should not interfere with state marijuana policies (a position that Biden also claims to favor). When the House approves the MORE Act again and it predictably fails to pass the Senate, Democrats will be able to say they tried to legalize marijuana, but Republicans would not let them. They will not be able to say they made an earnest effort to attract bipartisan support.

Even if they did, Biden has made it clear he is not inclined to sign any bill that eliminates federal prohibition. His administration's position is essentially the same as the policy during Barack Obama's administration, when Deputy Attorney General James Cole urged federal prosecutors to deprioritize cases against state-legal marijuana businesses.

Donald Trump's first attorney general, Jeff Sessions, rescinded that 2013 memo in 2018. But no crackdown followed, and Sessions' successor, William Barr, did not even try to instigate one.

"I'm not going to go after companies that have relied on the Cole memorandum," Barr said in 2019. "My approach to this would be not to upset settled expectations and the reliance interests that have arisen as a result of the Cole memorandum. Investments have been made, so there [has] been reliance on it. I don't think it's appropriate to upset those interests."

Barr also said the conflict between state and federal marijuana laws, which exposes state-licensed cannabis suppliers to the risk of imprisonment and property confiscation while complicating their business in numerous ways, is "untenable." And while Barr made it clear that he was no fan of legalization, he said Congress should change federal law if it wants the states to be free to set their own marijuana policies.

This week Supreme Court Justice Clarence Thomas likewise criticized the federal government's "contradictory and unstable" marijuana policy. "Once comprehensive, the Federal Government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana," Thomas wrote, dissenting from the Court's decision against considering a case involving Section 280E of the Internal Revenue Code, which bars state-licensed marijuana suppliers from deducting their business expenses when they file their federal income tax returns. "This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary."

The "untenable" and "unstable" situation decried by Barr and Thomas began a quarter of a century ago, when California became the first of 36 states to allow medical use of marijuana. It seems unlikely that it will be resolved anytime soon.

NEXT: He Died After Cops Shackled Him and Held Him Facedown. A Court Said That Was Constitutional. SCOTUS Isn't So Sure.

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  1. “Although nearly 70 percent of Americans think marijuana should be legal, that step is too radical for President Joe Biden”

    Oh well. We Koch / Reason libertarians didn’t overwhelmingly endorse Biden because we seriously expected him to end the War on Drugs. Or bring all our soldiers home. Or stop bombing Brown people.

    On the contrary, we endorsed Biden because we concluded he’d be better for the net worths of the richest people on the planet, like our benefactor Charles Koch. And on that crucial issue Biden has totally delivered.


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  2. “I’m not going to go after companies that have relied on the Cole memorandum,” Barr said in 2019. “My approach to this would be not to upset settled expectations and the reliance interests that have arisen as a result of the Cole memorandum. Investments have been made, so there [has] been reliance on it. I don’t think it’s appropriate to upset those interests.”

    Now do ATF regulations!

  3. Great, more reason for further nullification of federal laws that are meant to do nothing more than give cops a reason to fuck with you, and prosecutors something to threaten you with.

  4. >>The president supports the ban

    authority for he …

  5. The current president is also all in on high density housing in your neighborhood, but not his.

  6. Since Sullum correctly views Biden’s longstanding support for marijuana prohibition (and all of the harm it caused the past 85 years) as “retrograde”, will he write hundreds of articles demonizing and lying about Biden during the next four year (as Sullum did trashing Trump the past 5 years)?

    Didn’t think so.

    1. Fritz Krupp, the German weapons producer, surrounded himself, like Trump, with fawning fanboy worshippers. Krupp had his comeuppance when in 1902 conservatives discovered his pederasty. Trump’s came when women voters looked behind the curtain and discovered the same kind of coathanger girl-bulliers as Nixon, Ceausescu, Paul, Bush, Bush, Palin ‘n Johnny Torch, Mitt ‘n Twit and a host of other Republican National Socialists. Buggers and pussy grabbers for God need to realize when they’re beaten.

      1. Who were Paul’s securitatii?

      2. You failed to mention the world class pussy chaser Clinton, both of them. Hillary forced more women on her staff to sleep with her then all the men on that list combined.

        1. (Shudders)…….. those poor women. Some things can’t be unseen, unshelled, untouched, and untasted.

    2. When simple possession of small amounts of cannabis is decriminalized, some of the impetus for legalization of recreational cannabis is diminished, as people are no longer imprisoned and burdened with criminal records for simple possession of small amounts of cannabis. Possibly more important is that decriminalization is the best of both worlds for criminal drug cartels and others involved in illegal cannabis. Under decriminalization, 100% of the profits from cannabis go to the criminals and none to the government.

      Decriminalization also boosts sales for the criminals, since many of those who previously did not buy illegal cannabis out of fear that they could be imprisoned and burdened with a criminal record for simple possession, now become potential customers for the criminals. Thus, the cartels and others involved in illegal cannabis have a powerful incentive to oppose legalization of recreational cannabis…”
      Ever wonder who is funding “Smart Approaches to Marijuana” and similar pro-prohibition groups?

  7. Sullum writes well but guesses wrong with every crystal ball prediction. What drives prohibition is pseudoscience, bribery and graft, and what wrecks it is the banking panics and recessions that result from asset forfeiture. Prosecutor Willebrandt’s use of the Manifesto income tax as a prohibition bludgeon forced Americans to choose between having banks and shooting beer drinkers to please mystical bigots. The AAPA circulated “Scandals of Prohibition Enforcement” in 1929 (now online). Pamphlets like that and journalism like Sullum’s repeal bad laws… just not overnight!

    1. Your writing style leaves me wondering if you’re purposefully confusing me.

  8. So the ideal ‘reason’ follower is a walking haze of reefer smoke and Doritos bags. That must make it harder to explain Ayn Rand. Or maybe it doesn’t. C’mon dude. The thing.

  9. A year ago, if the word “epidemic” appeared in the news, it mostly referred to the opioid epidemic. Opioids were involved in 46,802 American overdose deaths in 2018. The nexus between the opioid epidemic and cannabis is that legalization of recreational cannabis has been shown to reduce opioid deaths by about a third. The legalization of recreational cannabis by Colorado in 2014 and other states since then, has provided enough data for academic researchers to determine that the reduction in opioid deaths resulting from the legalization of recreational cannabis is very statistically significant. This evidence would tend to support legalization of recreational cannabis in those states that have not yet done so. At least, among those who can be influenced by peer-reviewed scholarly research results.

    An interesting result from the research is that just legalizing medical cannabis does not result in a statistically significant reduction in opioid deaths. An explanation for this result may be seen in the typical media accounts of particularly heart-breaking opioid overdose deaths. Many of the news stories involve someone who years ago had a drug abuse problem, but who had apparently been drug-free for many years. This person’s friends and relatives were very proud that the person had turned their life around and now had a good job and family. Then the person is found dead on the floor from an opioid overdose.

    The reason that researchers found that, after accounting for all variables, opioid deaths are so much lower in jurisdictions with legal recreational cannabis, is that some people who might otherwise use opioids are using cannabis instead. No one has ever died directly from a cannabis overdose. For someone trying to conceal their drug use from the world, getting a prescription for state-legal medical cannabis could be problematic. This raises the question of why the person in the story did not use cannabis instead of opioids? Presumably, who ever sold the illegal opioids to the person could likely have provided the person with illegal cannabis as well. However, illegal cannabis may not be a substitute for opioids for someone trying to conceal their drug use. Illegal cannabis is generally sold as flower to be smoked. Because of the smell and factors such as reddening of the eyes, smoking is difficult to conceal from those people close to one. State-legal recreational cannabis is sold either as flower or in edible form. Edible cannabis use is as easy to conceal as opioids. Thus, legalization of recreational cannabis can reduce opioid deaths by about a third, but legalizing medical cannabis has no statistically significant reduction in opioid deaths…”

  10. Alcohol and marijuana should be sold to 4 year olds.

    Only then will people realize that there is no safe dosage or age for consumption that doesn’t result in harm. Drugs ARE bad. For everyone.

    Jail the sellers and carriers. Offer rehab to users for free, but have community service sentences for those who refuse.

    1. While setting aside the simple fact that chemical substances effect the mind and body of a child far differently than a physically mature adult, your entire statement is moronic.

  11. You are right, if there are a lot of drugs that negatively affect your health, it is very important to choose exactly what helps you. Recently, there is more and more stress in life, and this is exactly what will help you relax

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