How the Government Got in Your Backyard

by Jeff Gillman

  Marijuana is far from the only drug that has the potential to help as much as hurt people. Studies have shown that iboga can help control substance addictions and psilocybin mushrooms can help alleviate depression. Some people who took magic mushrooms even point to their ingestion as one of the most spiritually meaningful things they had done in their lives. And it is well known that the opiates that come from poppies include not only illicit drugs but also the medically useful painkiller morphine, though it is usually created synthetically nowadays.

  Government Policy

  Harry J. Anslinger is usually given credit for our current system of controlling illegal plants. Anslinger was the director of the Federal Bureau of Narcotics from 1930 to 1962. In the 1930s, he promoted sensationalized tales of drug-induced crimes that became the basis of pop culture crime stories. Heroin was Anslinger’s primary target for government restrictions, but he didn’t ignore other drugs. Pressure from law enforcement and leading newspapers led Congress, with help from testimony given by Anslinger, to pass the 1937 Marijuana Tax Act. On its face, the act seemed to be just a tax on the buying and selling of marijuana, but it made the documentation of the purchase and sale so complex, and the penalties for not complying so extreme, that it served to make marijuana essentially illegal. Although some of the mythology surrounding Anslinger makes him out to be a lone ranger in the fight against pot, he didn’t really do anything that the states hadn’t done already. Indeed, by the time Congress acted, all of the states had their own marijuana prohibitions, though promoters of the federal law claimed it was needed because state laws were not vigorously enforced.

  But why is one plant deemed illegal and another plant legal in the government’s eyes? it’s not their ability to kill–if it were, there would be an incredibly long list of prohibited plants and amazingly few choices for our landscape.

  Today, the list of restricted plants includes a lot more than just marijuana. But why is one plant deemed illegal and another plant legal in the government’s eyes? It’s not their ability to kill—if it were, there would be an incredibly long list of prohibited plants and amazingly few choices for our landscape. Rather, the ability of plants to intoxicate is the driving force governing whether a plant can be grown or not. The Comprehensive Drug Abuse Prevention and Control Act of 1970 included both treatment provisions and tougher legal restrictions on marijuana and other plants. It imposed probation for the first-time offense of possession of small amounts of marijuana, and allowed police to conduct “no-knock” searches. Section II of this act is the Controlled Substances Act, which created the drug classification hierarchy and placed marijuana in Schedule I with other substances that had a “high potential for abuse” and “no currently accepted medical use.”

  The Controlled Substances Act allows the Drug Enforcement Agency (DEA) and the Food and Drug Administration (FDA) to put together a list of chemicals that are considered drugs. This list is divided into five schedules, which indicate how dangerous the government considers these drugs. The most dangerous drugs are listed in Schedule I, while the least dangerous are in Schedule V. To be classified as a Schedule I drug, the plant in question must fulfill three criteria: a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use of the drug under medical supervision. Schedule II drugs must also fulfill three criteria: a high potential for abuse; a currently accepted medical use in treatment in the United States; and abusing the drug may lead to severe psychological or physical dependence. Schedules III, IV, and V include drugs that are less likely to cause dependence and be abused. Anabolic steroids are an example of a Schedule III drug, and Lomotil, a drug used to control diarrhea, is a Schedule V drug.

  A person guilty of owning a plant listed on Schedule I isn’t guilty of owning a plant, but rather of owning a controlled substance. This seems somewhat hypocritical to groups in favor of the legalization of marijuana, because there is a huge array of weeds and ornamental plants in any yard—castor beans, yews, flowering tobacco, deadly nightshade, and Virginia creeper, among others—that can be used as intoxicants or poisons.

  The campaign against illegal drug use kicked into high gear during President Ronald Reagan’s administration (1981–1989). First Lady Nancy Reagan made “Just Say No” her personal public relations campaign and it paid off in 1986 and 1988 with the passage of the Anti-Drug Abuse Acts. These laws imposed life sentences for top figures in drug organizations and permitted the option of the death penalty under certain circumstances. The acts also instituted different sentences for crack cocaine and for cocaine powder. Crack cocaine, which was causing violent turf wars among the gangs that were selling it, was given mandatory minimum sentences one hundred times greater than the existing penalties for cocaine powder. These differences became increasingly controversial as the racial disparities in drug sentences became apparent: African Americans were more likely to use crack cocaine and thus receive the harsher penalties, while whites were more likely to use cocaine powder and receive the lighter punishments. These acts also established mandatory minimum sentences for marijuana possession: 100 plants or 100 kilograms (220 pounds) triggered a five-year sentence.

  Since the 1980s, policy innovation has occurred at the state and local levels rather than the federal level. Faced with the high expenses of burgeoning jail populations, several states have reduced penalties for first-time offenses for individuals caught possessing small amounts of marijuana. Thirteen states currently impose no jail time and small-time possession does not show up on criminal records. Public and media attention have been drawn to movements for the legalization of marijuana for medical reasons. California gained national attention in 1996 when its voters passed a medical marijuana initiative that allowed anyone to grow or possess marijuana if they could convince a physician to give them permission to use it for medical purposes.

  However, these medical marijuana laws set states on a collision course with federal drug laws, which claim that marijuana has no medicinal value and thus cannot be grown or possessed by individuals for any reason. When federal law and state laws conflict, the federal law is the one that counts. The U.S. Supreme Court rejected the Californians’ claim that their declaration of medical necessity exempted them from federal drug laws, in U.S. v. Oakland Cannabis Buyers’ Cooperative (2001). The Supreme Court also rejected claims that Congress could not prohibit personal use of marijuana because Congress is only constitutionally authorized to regulate interstate commerce. In Gonzalez v. Raich (2005) the Court found that Congress could trump state and local laws because those who grow marijuana for medicinal purposes could also use it for other illicit purposes. Likewise, the DEA refused a request to remove marijuana from the Schedule I classification in 2001, and the FDA issued a report in 2006 finding that there was no scientific basis for using marijuana as medicine. The federal government gave no ground on the use of marijuana for any purpose until the Justice Department announced in 2009 that it would not prosecute individuals for drug use that was legal under state law.

  The control the government exercises over the use of hallucinogenic plants (such as peyote) in religious ceremonies provides an interesting contrast to its control of marijuana. The U.S. Supreme Court ruled in Employment Division v. Smith (1990) that the use of peyote was not protected as a “free exercise” of religion, even if its use was part of a traditional Native American ceremony. The Court’s logic was that you can believe whatever you want, but that does not allow you to practice illicit activities. Nevertheless, a number of states responded by specifically exempting Native American tribal ceremonies from peyote and ayahuasca bans. And Congress passed the Religious Freedom Restoration Act of 1993, which makes it harder for the government to interfere with the actions of religious organizations.

  The Political Dynamics

  Why is the government okay with alcohol and tobacco and not marijuana? The simple answer is cultural acceptance. Tobacco had been used by Native Americans since well b
efore Europeans arrived, and the population of Europe took to the pastime in the sixteenth century. In fact, Sir Walter Raleigh (who is credited with bringing tobacco to England, though it actually arrived there before his travels) convinced Queen Elizabeth to try a puff around 1600. Alcohol arrived in the United States right along with colonization. They were both used by, and popular with, almost all classes of society. Marijuana, opium, and cocaine arrived more recently and were used by immigrant groups or other members of society that were considered socially marginal.

  The policy struggle over medical marijuana is evidence of a widening regional split in social acceptance. Pacific coast and New England states are more likely to allow marijuana for medicinal purposes and to have less severe penalties for first-time arrests for possession of minor amounts. Plains and southern states, however, tend to have strict laws and seem highly unlikely to make them more lenient. The fact that some states allow laws to be passed outside of the legislative process has proven very useful for proponents of medical marijuana. Most state medical marijuana laws come from initiatives placed on the ballot by voters themselves, not by changes in laws made by the state legislature. This shows that even though public opinion in these states may be relevantly tolerant, politicians were not going to risk getting ahead of the public or setting themselves up to be the brunt of a backlash from voters opposed to weakening drug laws.

  Fourteen states currently permit medical marijuana, nine (64 percent) through ballot initiatives approved by voters. Put another way, 43 percent of the states that allow voters to place issues on the ballot have passed medical marijuana laws, but only 17 percent of states without initiative procedures have passed such laws. Supporters of medical marijuana have succeeded largely when they can avoid state legislatures and take their case directly to the people.

  Indeed, the conventional wisdom for politicians says that voting to loosen restrictions on anything that teenagers might smoke is just inviting attack ads in your next election. Politicians and others in public office don’t want to be seen as soft on drugs, soft on crime, or soft on hippies. Douglas Ginsburg, nominee to the Supreme Court, had to withdraw in 1987 because he had smoked pot back when he was a law professor. President Bill Clinton never lived down his declaration about pot that he had “smoked, but didn’t inhale.” George W. Bush could not escape speculation about cocaine use despite a lack of evidence. Almost all candidates for high-ranking office are now asked about drug use. By admitting their past up front and showing remorse, most are able to overcome the potential risk, but few want to take on additional risk by taking stances that can be portrayed as promarijuana.

  FOR ELECTED politicians, perception is usually more important than +facts. They might try to decriminalize or reduce penalties for a drug that is likely no worse than other substances that are entirely legal (alcohol) or available by prescription (Percocet, oxycodone). But making those arguments is a nonstarter politically.

  The political issue really isn’t about drug schedule classifications and regulations. The issue—as the politician thinks the voters back home are to going to see it—is about values. Are you for “anything goes” licentiousness, or for self-control and responsibility? It’s also about symbolic group associations: are you in the respectable middle class or are you a hippie? And it’s not about whether you ever did a few drugs when you were young (since most people can compartmentalize and thus rarely see themselves as being hypocritical), it’s about whether you are for protecting children from bad influences or allowing them to take their chances in a dangerous world.

  In politics, symbols matter, and when the symbols are powerful, easily accessible, and can be framed in a thirty-second attack ad, the symbols usually have little difficulty subduing solid evidence or reasoned argument. Politicians protect themselves by not giving their opponents an opening to declare that they are soft on drugs.

  The most direct route to national legalization of marijuana (or any other restricted plant) would be for the FDA to reschedule the drug. But, like other elected officials, presidents do not want to be seen as being pro-drug and would thus pressure the FDA to avoid the rescheduling. Congress would most likely respond to rescheduling by cutting the FDA’s budget or passing a law to directly block the FDA’s reclassification. The FDA itself would want to avoid a battle with the White House and Congress over an issue that is so marginal to its overall mission. One way the FDA seems to have accomplished this is by preventing the gathering of data that might (inconveniently) show the safety of marijuana. The FDA can’t declassify marijuana from Schedule I without studies that demonstrate its effectiveness and safety as a medical drug. Yet it has not allowed researchers to use its supply of research on marijuana to conduct medical studies (since growing marijuana is illegal, universities can’t just grow it for their own research studies). In line with this, the White House Office of National Drug Control Policy has asserted that the reason that approval for marijuana research has not been granted is that it has not received research proposals that meet the general standards for approval of drug research (such as providing for control groups or involving participants who take multiple drugs), rather than an attempt by the government to suppress scientific analysis of medical marijuana.

  The good news for those who support the legalization of marijuana and other intoxicating plants is the passage of state initiatives. There is more room for public discussion when the plant in question can serve socially useful purposes other than recreation, though public officials have been loath to join that discussion. The discussion over legalization of medical marijuana in most states revolves around whether marijuana has therapeutic uses for patients with particular ailments and whether it is equal to or superior to other legal drugs in terms of its pain killing ability or lack of side effects. Supporters of medical marijuana have been successful in attracting media coverage to testimonials of patients who believe it has relieved their pain and suffering. There are many Americans who have experienced a loved one’s suffering and are sympathetic to potential alternative sources of relief. Without supporters’ assertions of medical benefits, or its protection in religious ceremonies, there would be little serious debate about legalization primarily for the purposes of helping the user get in touch with his or her true self.

  Although proponents of medical marijuana have clearly developed an effective strategy of using ballot initiatives to bypass state legislatures, there may not be many more direct opportunities to take advantage of favorable public opinion. Of the twelve states that do not currently permit medical marijuana and do allow ballot initiatives, most are culturally conservative plains or southern states, where the grounds for passage are not fertile.

  It is tempting to treat California as the exception (indeed, many Americans already do), given their 2010 ballot initiative to legalize marijuana for recreational use. However, the major rationale for the initiative put forth by its proponents is economic: legalization would allow California to tax marijuana, thereby helping the state out of its $20 billion budget deficit. For voters who don’t care one way or another about marijuana, taxing something they don’t buy seems like a good choice. It might allow them to avoid a sales or income tax hike, or a cut to public services they use (libraries, roads, police). Nevertheless, previous economic downturns in California did not result in a serious debate over legalization, suggesting that the times, they are a-changin’.

  Gallup polls show a slow, steady growth in support for legalization of marijuana from 12 percent in 1969 to 36 percent in 2005. Given that the poll also shows greater support (though not a majority) for legalization among younger respondents, public support is likely to continue to increase as antidrug voters are increasingly replaced in the electorate by a generation with more tolerant attitudes toward drugs.

  For our money, the best evidence of an evolution in attitudes toward marijuana is the approval of a medical marijuana initiative in Michigan in 2008, a state more associated with old-time union politics than New Age reforms. Simi
larly, the state legislature of the rather sober state of Minnesota passed a medical marijuana bill in 2009, though it was vetoed by the governor. If Middle America (though still northern America) is increasingly tolerant of medical marijuana, this suggests that a broad shift in public attitudes is under way and the power of absolutist “Just Say No” politics is ebbing. Reflecting these trends, the Obama administration’s Justice Department announced in 2009 that it would not prosecute people under federal law for drug possession when their actions were permissible under the laws of their state.

  Policy Option One: Leave Things as They Are

  The government controls plants that are regularly used as recreational drugs and that have the potential to be damaging to people. There is absolutely no reason for people to try and acquire most of these plants except for getting high. After all, is marijuana a particularly attractive plant that you’d want in your flower garden? What about magic mushrooms? Peyote? These are some seriously ugly plants. While the poppy may be an attractive flower, it’s not as if there aren’t good replacements for it in the garden. Why should we even consider having these plants be legal? They have some serious effects on human physiology that cannot be ignored. Life’s not all just a fun high.

  All that said, however, the overriding reason to keep things as they are is that it allows us to control the drugs that have the most potential to hurt both the user and those around them. Some banned plants may be useful in certain medical circumstances, but we should keep them and other plants on the list of nationally banned substances. Medical marijuana is currently allowed by states in the circumstances where it is most needed—without federal government interference. Though state and federal laws may conflict, in practice they allow people who need to use medical marijuana to use it, while allowing the federal government to crack down on other uses and sales.