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Decriminalization, Legalization, or Freedom?

In between drug prohibition and drug freedom are two concepts that are often confused.

Drug prohibition is the criminalization of the production, distribution, and possession of drugs as currently exists in the United States on the federal level and in most of the 50 states. Drug freedom is the complete absence of federal and state laws and regulations concerning drugs because what a man wants to grow, sell, or smoke is his natural right.

Drug decriminalization is the elimination of criminal penalties for possessing drugs. Although it is still illegal to possess the drugs, violators are given a civil fine or referred to a drug-treatment program instead of being arrested and saddled for the rest of their lives with a criminal record. Drug legalization is the elimination of both criminal and civil penalties for drug possession.

In either case, it is not drugs in the absolute sense; the drug in question is always limited to marijuana. The decriminalization or legalization is also never absolute; in either case it always comes with a myriad of government regulations and restrictions.

Both concepts are sometimes wrongly identified with drug freedom, “wrongly” because they primarily focus on possession and only secondarily on production and distribution; moreover, because of the numerous regulations and restrictions that accompany them, they are actually closer to prohibition than to drug freedom.

In the majority of the 50 states, possession of even a small amount of marijuana can still result in jail time, probation terms, or fines. Things are changing rapidly, however, as more and more states, counties, and cities decriminalize (with restrictions) or legalize (with even more restrictions) the possession of marijuana.

Most recently, there is Rhode Island.

Although Rhode Island legalized marijuana for medical use back in 2006, prior to April 1, 2013, possession of even small amounts of nonmedical marijuana in the state was considered a misdemeanor offense, with a maximum penalty of one year in jail and a fine that can be as high as $500. That all changed when a law decriminalizing possession of small amounts of marijuana, which passed last June, went into effect on April 1.

Possession of one ounce (28 grams) or less of marijuana in Rhode Island will now become a civil offense punishable by a $150 fine and forfeiture of the drug. Half the revenue from the fines will be put toward youth education and treatment programs. Three offenses in an 18-month period will amount to a misdemeanor. Minors caught with marijuana will have to complete a drug-awareness program and perform community service.

“I think it’s going to save our police a lot of problems,” said State Representative John Edwards, who co-sponsored the decriminalization measure. Having a “youthful indiscretion” will no longer lead to a criminal record that might have long-term consequences.

Seven other states (Alaska, California, Connecticut, Maine, Massachusetts, Nevada, and Oregon) have both legalized marijuana for medical use and decriminalized the possession of certain amounts of marijuana.

Six other states (Mississippi, Nebraska, New York, North Carolina, Ohio, and Wisconsin) have decriminalized possession of certain amounts of marijuana.

Eight other states (Arizona, Delaware, Hawaii, Michigan, Montana, New Jersey, New Mexico, and Vermont), plus the District of Columbia, have legalized only the medical use of marijuana.

Only the states of Colorado and Washington have legalized marijuana for recreational use, and that happened just recently.

There were six ballot measures in the states pertaining to marijuana during the last election. Three of them concerned the legalization of the recreational use of marijuana. Initiative 502 in Washington allows those who are at least 21 years old to buy up to one ounce of marijuana from a licensed retailer. Amendment 64 to the Colorado constitution allows individual persons to possess up to one ounce and permits them to grow up to six plants in a private, secure area for personal use. Both measures were passed by voters. However, in Oregon, which became the first state to decriminalize the possession of small amounts of marijuana in 1973, voters rejected Ballot Measure 80, which would have legalized marijuana for recreational use, while regulating and taxing the cultivation and sale of marijuana. A similar ballot measure in Oregon failed in 1986.

There is just one problem with all of these state laws relating to marijuana. The federal government still classifies marijuana as a Schedule I controlled substance under the Controlled Substances Act, with a high potential for abuse and with no acceptable medical use. The usurped authority of the federal government under the Commerce Clause to override state and local laws that allow the local cultivation and use of marijuana was confirmed by the U.S. Supreme Court in the case of Gonzales v. Raich (2005).

Because of the continued federal prohibition, it is on the national level to end the tyranny that is the drug war that legislation is even more important. Since the current war on drugs began under Richard Nixon in the 1970s, there have been only a few attempts on the federal level to decriminalize the possession of small amounts of marijuana.

The most recent attempts were the Act to Remove Federal Penalties for the Personal Use of Marijuana by Responsible Adults (H.R.5843), introduced in the 110th Congress; the Personal Use of Marijuana by Responsible Adults Act of 2009 (H.R.2943), introduced in the 111th Congress; the Ending Federal Marijuana Prohibition Act of 2011 (H.R.2306), introduced in the 112th Congress; and the Ending Federal Marijuana Prohibition Act of 2013 (H.R.499), introduced in the 113th, and current, Congress.

The text of the first two of these bills reads the same:

Notwithstanding any other provision of law, no penalty may be imposed under an Act of Congress for the possession of marijuana for personal use, or for the not-for-profit transfer between adults of marijuana for personal use. For the purposes of this section, possession of 100 grams or less of marijuana shall be presumed to be for personal use, as shall the not-for-profit transfer of one ounce or less of marijuana, except that the civil penalty provided in section 405 of the Controlled Substances Act (21 U.S.C. 844a) may be imposed for the public use of marijuana if the amount of the penalty does not exceed $100.

These two bills are among the shortest ever introduced in Congress. But along with the Ending Federal Marijuana Prohibition Act of 2011, they languished in committee and were never voted on by the full House.

The bill currently active in Congress, which was introduced on February 5 of this year by Rep. Jared Polis (D-Col.), would remove marijuana from Schedule I of the Controlled Substances Act; revise the definition of “felony drug offense” to exclude conduct relating to marijuana; prohibit the transporting of marijuana into any place where its possession, use, or sale is prohibited; require marijuana producers to purchase a permit like commercial alcohol producers do; subject marijuana to the federal provisions that apply to intoxicating liquors and distilled spirits; and reassign jurisdiction of marijuana regulation from the Drug Enforcement Administration to the renamed Bureau of Alcohol, Tobacco, Marijuana, Firearms and Explosives.

Said Representative Polis,

This legislation doesn’t force any state to legalize marijuana, but Colorado and the 18 other jurisdictions that have chosen to allow marijuana for medical or recreational use deserve the certainty of knowing that federal agents won’t raid state-legal businesses. Congress should simply allow states to regulate marijuana as they see fit and stop wasting federal tax dollars on the failed drug war.

Now that doesn’t mean that Representative Polis is a Democratic version of former Congressman Ron Paul. It doesn’t mean that he is a libertarian. It doesn’t mean that he opposes the wasting of federal tax dollars on anything else. It doesn’t mean that he wants all the states to legalize marijuana, for medical use or otherwise. It doesn’t mean that he favors the legalization of drugs besides marijuana. All it means is that, at least on this issue, Representative Polis wants to transfer the oversight of something from the federal government to the states; that is, at least on this issue, he wants the federal government to follow the Constitution.

As libertarians have pointed out for years, with very little support from “constitutional conservatives,” the Constitution nowhere grants to the federal government the authority to have anything to do with marijuana or any other drug. No regulations, no restrictions, no drug schedules, no controlled substances, and certainly no prohibition.

That the states should be able to make their own laws to legalize or decriminalize any or all drugs without interference from the federal government is a no-brainer. But that should never be identified with drug freedom.

Drug legalization for medical or recreational use, even with state licensing and regulation, is better than drug prohibition. Drug decriminalization, even if it applies only to possession of certain amounts, is better than drug prohibition. Drug legalization and drug decriminalization, even if they apply only to marijuana, are better than drug prohibition. But, it should be always remembered, they are no substitutes for drug freedom.

Originally published at the Future of Freedom Foundation on April 9, 2013.