Is it Time to Legalize Marijuana?

By Andrea Laterza, J.D. Class of 2018 Touro Law Review Associate Editor

Mass incarceration has become a disturbing issue in this country.[1] The United States is home to only five percent of the world’s population, yet houses twenty-five percent of the world’s prisoners.[2] “The War on Drugs” has been a direct cause of mass incarceration.[3] Someone is arrested for drug possession every twenty-five seconds, which amounts to 1.25 million drug-related arrests each year.[4] In 2015, there were 574,000 arrests made for marijuana possession whereas 505,681 arrests were made for violent crimes, such as rape and murder.[5] Thus, there were more people arrested for mere possession of marijuana than for heinous, violent crimes.[6]

In 1972, there were less than 350,000 people incarcerated; however, due to the War on Drugs, that number skyrocketed by approximately 500%, amounting to over 2,000,000 people incarcerated today.[7] Despite Nixon and subsequent presidents’ intentions, the War on Drugs has been a failure.[8] Its wrath left U.S. prisons overcrowded, filthy, and a huge expense for taxpayers.[9] If marijuana were to be legalized, the number of inmates would reduce significantly, thereby saving the government hundreds of millions of dollars.[10] Not only would the government save money, but it would also profit.[11] Colorado, one of the several states that has legalized marijuana for recreational use, generated approximately $70 million in tax revenue during the first fiscal year that cannabis was legally sold and taxed.[12]

Aside from the monetary incentive, there may be a constitutional reason to end the criminalization of marijuana.[13] Arguably, the right to use marijuana falls within the recognized rights of privacy and autonomy.[14] The Supreme Court has repeatedly held that the Constitution “create[s] zones of privacy,” which extend to the home and personal bodily choices.[15] The Court has found that the rights to choose abortion, to refuse medical treatment, to use contraception, and to engage in consensual sodomy all fall within the “penumbra” of privacy and autonomy rights.[16] Using marijuana is analogous to these recognized rights because it is also a private, bodily choice.[17] In fact, one state has already held that using marijuana falls within the privacy right of the Constitution.[18] The Supreme Court of Alaska emphasized the importance of privacy within one’s home and held that “possession of marijuana by adults at home for personal use is constitutionally protected.”[19] The court based its holding, in part, on scientific research demonstrating that marijuana is not at all harmful or dangerous to the user or anyone else; therefore, Alaska had no legitimate interest in its prohibition.[20]

Even if using marijuana is not a privacy right, it is arguably a fundamental liberty “deeply rooted in this Nation’s history and tradition.”[21] Marijuana can be traced all the way back to 2737 B.C..[22] The Chinese emperor began prescribing marijuana for ailments, such as gout, rheumatism, and malaria.[23] The drug’s popularity spread across the globe and was used to treat all kinds of pain from earaches to childbirth.[24] In the 1600’s, the plant made its way to the United States where it became a major cash crop.[25] Hemp was used for many purposes, such as medicine, construction, and paper products.[26] In fact, the Declaration of Independence, signed by the Founding Fathers themselves, was written on hemp.[27] Even George Washington and Thomas Jefferson grew hemp.[28] The plant only became illegal in the 1900’s after it was negatively associated with Mexican immigrants.[29] The government falsely vilified marijuana as a drug linked to crime and insanity.[30] The American Medical Association even opposed the government’s position on marijuana because doctors wished to prescribe the drug.[31] Marijuana is not dangerous; no one has ever died from it.[32] In fact, experts believe marijuana has significant health benefits, such as treating glaucoma, speeding up metabolism, controlling seizures, and preventing cancer.[33] Nevertheless, the drug has been unscientifically outlawed.[34]

Today, marijuana is federally categorized as a schedule I drug, alongside hard drugs like heroin and cocaine.[35] According to the Supremacy Clause, federal law trumps state law, which means that even if one is in a state where marijuana is legal, he or she could still face federal prosecution.[36] A drug conviction may prevent citizens from taking out student loans, securing a job, renting a home, obtaining welfare benefits, or even voting.[37] It is time to end the stigma surrounding marijuana because the drastic effects of its criminalization are affecting millions of Americans.[38]

[1] See infra note 2 and accompanying text.

[2] Pamela Engel, Watch How Quickly the War on Drugs Changed America’s Prison Population, Bus. Insider (Apr. 23, 2014, 1:19 PM), http://www.businessinsider.com/how-the-war-on-drugs-changed-americas-prison-population-2014-4.

[3] Fareed Zakaria, Incarceration Nation: The War on Drugs Has Succeeded Only in Putting Millions of Americans in Jail, Time (Apr. 2, 2012), http://content.time.com/time/magazine/article/0,9171,2109777-1,00.html.

[4] Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, ACLU Update (ACLU/ Human Rights Watch, New York, N.Y.), Oct. 5, 2016, at 2, 4.

[5] Id. at 5.

[6] Id.

[7] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 8 (The New Press 2012).

[8] Ray Williams, Why “The War on Drugs” Has Failed, Psychology Today (June 6, 2011), https://www.psychologytoday.com/blog/wired-success/201106/why-the-war-drugs-has-failed.

[9] Saki Knafo, 10 Ways to Reduce Prison Overcrowding and Save Taxpayers Millions, Huffington Post (Nov. 8, 2013, 7:30 AM), http://www.huffingtonpost.com/2013/11/08/prison-overcrowding_n_4235691.html.

[10] Id.

[11] See infra note 12 and accompanying text.

[12] Tanya Basu, Colorado Raised More Tax Revenue from Marijuana Than from Alcohol, Time (May 18, 2016, 12:49 PM), http://time.com/4037604/colorado-marijuana-tax-revenue/.

[13] See infra notes 14, 21 and accompanying text.

[14] See infra notes 15-20 and accompanying text.

[15] Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

[16] Lawrence v. Texas, 539 U.S. 558, 578-79 (2003); Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 304 (1990); Roe v. Wade, 410 U.S. 113, 166 (1973); Griswold, 381 U.S. at 484.

[17] Id.

[18] Ravin v. State, 537 P.2d 494, 511 (Alaska 1975).

[19] Id.

[20] Id. at 506-12.

[21] Washington v. Glucksberg, 521 U.S. 702, 703 (1997).

[22] Patrick Stack, A Brief History of Medical Marijuana, Time (Oct. 21, 2009), http://content.time.com/time/health/article/0,8599,1931247,00.html.

[23] Id.

[24] Id.

[25] John Dvorak, America’s Harried Hemp History, Hemphasis (2004), http://www.hemphasis.net/History/harriedhemp.htm.

[26] Matt A.V. Chaban, Cannabis Construction: Entrepreneurs Using Hemp for Home-Building, N.Y. Times (July 6, 2015), https://www.nytimes.com/2015/07/07/nyregion/cannabis-construction-entrepreneurs-use-hemp-in-home-building.html?_r=0; Stack, supra note 21.

[27] Seeley v. State, 940 P.2d 604, 628 n.10 (Wash. 1997).

[28] Id.

[29] Tim Weber, Would Government Prohibition of Marijuana Pass Strict Scrutiny?, 46 Ind. L. Rev. 529, 543 (2013).

[30] Id.

[31]Id.

[32] Ravin, 537 P.2d at 508 (comparing cannabis to alcohol and barbiturates, which are legal, and do kill people).

[33] Jennifer Welsh & Kevin Loria, 23 Health Benefits Of Marijuana, Business Insider (Apr. 20, 2014, 3:03 PM), http://www.businessinsider.com/health-benefits-of-medical-marijuana-2014-4/#it-can-be-used-to-treat-glaucoma-1.

[34] Dr. Malik Burnett & Dr. Amanda Reiman, How Did Marijuana Become Illegal in the First Place?, Drug Policy Alliance (Oct. 9, 2014), http://www.drugpolicy.org/blog/how-did-marijuana-become-illegal-first-place.

[35] 21 U.S.C. § 812 (2012).

[36] U.S. Const. art. VI, cl. 2.

[37] Every 25 Seconds, supra note 4, at 11.

[38] See supra notes 3-5, 7, 9, 20, 26, 29-31, 37 and accompanying text.

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