Is America ready for legal weed?

Is America ready for legal weed?

Millions of Americans can legally buy cannabis, and a majority of the country believes it should be legal recreationally. What’s taking lawmakers so long? Alex Woodward reports

Thursday 23 December 2021 15:20
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In a speech to the US Senate on 20 April, Senate Majority Leader Chuck Schumer declared an “unofficial American holiday” for a drug that is still, for the most part, illegal.

The New York senator said the date was “as appropriate a time as any” to revive federal efforts to legalise cannabis, ending a decades-long front in a failed drug war that has jailed thousands of Americans.

“The weirdest thing I ever saw,” is how Eric Altieri, executive director of NORML, the nation’s leading organisation dedicated to ending cannabis prohibition, describes it.

“It took some work to get the baby boomer and older generation to realise how important this is as a policy, but it seems all that effort and education has paid off,” he tells The Independent.

The following month marked the 50th anniversary of former president Richard Nixon’s declaration that drug use would be “public enemy number one” in what became a global War on Drugs.

Now it could only be a matter of time – and getting over the seemingly infinite hurdles in a repeatedly deadlocked Congress – before the federal prohibition on cannabis “is relegated to the dustbins of history,” Mr Altieri says.

In a memo to lawmakers this month, US Reps Earl Blumenauer and Barbara Lee said Congress is “primed for progress in 2022” and “closer than ever to bringing our cannabis policies and laws in line with the American people.”

“For decades, young men – disproportionately young men and women of colour – are arrested and jailed for even carrying a small amount of marijuana, a charge that often came with exorbitant penalties and a serious criminal record from which they may never recover,” Senator Schumer said in his remarks.

“It makes no sense,” he said. “It’s time for change.”

The tipping point

Within less than a decade, more than a dozen states have legalised recreational cannabis, and more than half of US states have decriminalised its use in some form. Eighteen states, two territories and Washington DC have passed legislation supporting recreational cannabis.

In 2021, five states – Connecticut, New Jersey, New Mexico, New York and Virginia – passed such legislation.

But it remains on the federal list of controlled substances, which places drugs into five “schedules”.

Schedule one drugs have “no currently accepted medical use and a high potential for abuse”, according to the federal government. Among them: Heroin, LSD, ecstasy, peyote – and cannabis.

Among the 15 states where the issue has been on the ballot since 2012, it has won in 13, continuing a trend as lawmakers refuse to wait to hold an election to get weed reform on the ballot.

“We finally hit a tipping point in political support that we’re seeing this being taken seriously and being acted upon by lawmakers in the states that aren’t even waiting to defer to voters on an election cycle,” Mr Altieri says. “That has really filtered up in terms of what we’re seeing at a federal level.”

National public opinion has shifted dramatically over the years to favour legalisation, while a majority of US states have now legalised its medicinal use.

A recent Pew Research Center poll found that as many as 91 per cent of Americans support cannabis legalisation in some form, with 60 per cent believing it should be legal to use recreationally, and 31 per cent believing it should be allowed only for medicinal use.

A 2020 Gallup poll – which first measured the public’s views of cannabis legalisation in 1969, when only 12 per cent of the country supported it – found that Americans are more likely now than at any other point within the last five decades to support lifting the prohibition.

Roughly 68 per cent of American adults support legalising cannabis, including nearly half – 48 per cent – of Republicans, and 72 per cent of independents, according to Gallup.

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It is still unclear whether President Biden would sign such legislation if it managed to pass both chambers of Congress, where cannabis reform faces a steep hurdle against Republican obstruction.

In July, White House press secretary Jen Psaki told reporters that “nothing has changed” on the president’s position on cannabis.

“There’s no new endorsements of legislation to report today,” she said.

Mr Biden, as a senator, was among the most vocal champions of the drug war in the 1990s, as lawmakers rallied around harsher sentences for crack-cocaine possession that disproportionately impacted lower-income Black Americans.

In March, five White House staffers were asked to resign and several others were suspended after background checks revealed past cannabis use.

The president, age 79, is also among a demographic that remains the most opposed to cannabis legalisation in some or any form: Older Americans.

While a majority of every other age demographic under age 75 support legislation, only 32 per cent of Americans age 75 and older support adult-use cannabis reform, according to the Pew survey.

But advocates are confident that the president would get behind legislation, as Democratic campaigns continue to rely on criminal justice reform that rejects a decades-old War on Drugs framework, and increasingly bipartisan legislation in Congress tracks alongside overwhelming public support.

“If you parse that through what it looks like as policy, it’s ultimately descheduling [cannabis] from the Controlled Substances Act, whether President Biden himself would use that word,” Mr Altieri says.

“I don’t think we should expect him to use his bully pulpit to make this a key issue and push for it, which would be hugely helpful in coalescing the Democratic side in support of this, but I don’t think he’ll be a huge hurdle,” he says. “I don’t think he’ll be a vocal champion.”

‘A huge win for justice’

Cannabis reform is one of the few, if any, high-profile causes with some bipartisan support in a polarised Congress, where members of the Congressional Cannabis Caucus have introduced legislation drawing Democratic and Republican support.

In the spring, lawmakers will be considering several bills that would radically reimagine how the federal government handles cannabis.

Democratic Senators Schumer, Ron Wyden and Cory Booker are behind the Cannabis Administration and Opportunity Act, the most-serious effort yet to bring cannabis legalisation to the floors of Congress. If passed and signed into law, it would remove cannabis from the federal list of controlled substances.

Republican congresswoman Nancy Mace, who has used cannabis to treat depression following a sexual assault, introduced a bipartisan bill this year to effectively legalise cannabis and create a regulatory framework at the federal level.

The legislation “has something good for everyone, whether you’re a Democrat or a Republican,” she toldThe Independent.

In December, Congressman Dave Joyce, a Republican, partnered with Democratic congresswoman Alexandria Ocasio-Cortez on a bill to help states expunge criminal records for people convicted on cannabis possession charges.

That legislation, to be named the Harnessing Opportunities by Pursuing Expungement Act, would set aside $20m for a federal programme to help “pave the way for expanded economic opportunities to thrive alongside effective investments to redress the consequences of the War on Drugs”, Mr Joyce said.

Mr Joyce, a former public defender and county prosecutor from Ohio, said he has seen “first-hand how cannabis law violations can foreclose a lifetime of opportunities ranging from employment to education to housing.”

“The collateral damage caused by these missed opportunities is woefully underestimated and has impacted entire families, communities, and regional economies,” he said in a statement.

Previous congressional efforts to erase cannabis convictions have been limited to federal crimes, despite state and local law enforcement handling far more charges for pot possession.

More than 8 million people were arrested on cannabis-related charges between 2001 and 2010, and an overwhelming majority – 88 per cent – were arrested for possession.

Despite roughly equal usage rates, Black Americans were 3.73 times more likely than white Americans to be arrested for cannabis, according to data reviewed by the American Civil Liberties Union.

Though cannabis remains illegal under federal law, its recreational use has not been a priority for federal law enforcement, leaving the application of the law – from how it is policed to the sentences handed down in court – up to states.

In 2019, the federal government was involved in only a fraction of the 545,000 cannabis offenses charged in the US that year, according to lawmakers; the FBI charged only 5,350 people with a top-line charge for any drug offense – not just cannabis – that year.

An overwhelming majority of the more than 350,000 Americans arrested by state and local law enforcement for weed-related crimes in 2020 were charged with simple possession, according to FBI crime reports.

Some local jurisdictions have tossed cannabis cases out altogether – Manhattan District Attorney Cyrus Vance has dismissed more than 4,500 marijuana cases, and New Orleans District Attorney Jason Williams refused to prosecute most possession charges for small amounts of any drug.

“Decriminalisation doesn’t solve a lot of the problems related to prohibition, but it solves the most important one, at least partially, and that’s no longer burdening people with arrest, jail time and criminal records for marijuana possession,” according to Mr Altieri.

“Al Capone would have loved decriminalising alcohol,” Mr Altieri says. “It’s a huge win for justice, but it’s only the first step.”

In 1978, a Louisiana state lawmaker introduced a bill to allow doctors to prescribe medicinal cannabis to treat glaucoma, chemotherapy and spastic quadriplegia. Nobody was ever appointed to the state’s board created to control it, cannabis was never legalised, and the measure effectively withered on the books for decades after it was signed into law.

Nearly 40 years later, Louisiana lawmakers passed legislation to support medicinal cannabis. Beginning in 2022, patients will be able to use “raw or crude” cannabis for the purpose of “inhalation.”

The state also reduced penalties for first-time possession of up to 14 grams of cannabis to a $100 fine with no jail time, becoming the first Deep South state to decriminalise.

While a bulk of the West Coast and northeastern US has moved to legalise weed, the South and Midwest have been slow to keep pace with their neighbouring states. But that could soon be changing.

This year, Virginia became the first southern state to legalise possession of up to an ounce of weed.

Since 2015, medical cannabis laws have also passed in Alabama, Arkansas and Florida, and voters in Mississippi approved a medical cannabis measure in 2020, which was challenged by state lawmakers.

That progress follows decades of opposition from politically powerful sheriffs, which operate local jails, as well as law enforcement organisations and right-wing special interest groups that have successfully lobbied against cannabis reform across southern states.

Meanwhile, several other states and cities are going even further. In February, Oregon became the first state to decriminalise small amounts of heroin, cocaine, LSD and other drugs, which can be penalised with a fine or health assessment that could include some form of counseling.

In 2020, voters in Washington DC overwhelmingly approved a ballot measure to make psychedelic mushrooms, mescaline and ayahuasca among drugs with the “lowest law enforcement priorities.”

In November, Detroit voters also voted to decriminalise psychedelic mushrooms and other so-called entheogenic plants like ayahuasca and peyote “to the fullest extent” under Michigan law and make “personal possession and therapeutic use” among adults “the city’s lowest law-enforcement priority.”

The city joins neighbouring Ann Arbor, where the city council voted unanimously in 2020 to decriminalise entheogenic plants for their potential effectiveness in treating mental health issues, as well as their centuries-old medicinal and cultural use.

Cities including Denver and Oakland, California have also moved to decriminalise mushrooms.

US Rep Cori Bush and Bonnie Watson Coleman also introduced legislation to end criminal penalties for all drug possession at the federal level, shifting authority from the law enforcement to the Department of Health and Human Services.

Senator Schumer’s “4-20” remarks followed passage of a law in his home state of New York that immediately legalised possession for small amounts of marijuana and began repairing communities of colour disproportionately targeted by the drug war.

The measure expunged previous convictions for possession that is no longer criminalised, a reversal that has impacted thousands of New Yorkers. In 2020, Black and Latino New Yorkers made up 94 per cent of cannabis-related arrests, despite white New Yorkers making up a larger share of users, according to records from the New York City Police Department.

The law also opened a pathway for a multi-billion-dollar industry, one that is expected to draw upwards of $350m a year in tax revenue, with billions of dollars in annual sales, and the creation of 60,000 new jobs, according to the governor’s office.

Every town and city in the state now must decide before the end of the year whether to allow cannabis consumption sites and/or dispensaries within their borders. Meanwhile, a series of bureaucratic steps –including issuing licenses for selling and shipping out weed for all cogs in the supply chain, all of which must pass through a Cannabis Control Board – could delay the start of New York’s new era in legal weed through 2022 or later.

But the prospect of new revenue is a draw that other states – and congressional lawmakers – are eager to tap into.

Wells Fargo has also initiated coverage of four cannabis-related stocks, signalling Wall Street’s growing interest in a market primed for legalisation – but stymied at the federal level.

One key proposal, the SAFE Banking Act, would grant the largely cash-only legal weed industry access to financial services, including commercial loans, checking accounts and credit card processing

“Under current law, financial institutions providing banking services to legitimate and licensed cannabis businesses under state laws are subject to criminal prosecution under several federal statutes such as ‘aiding and abetting’ a federal crime and money laundering,” according to US Rep Ed Perlmutter, who is sponsoring the bill.

According to the memo from lawmakers on the Cannabis Caucus, states making a dent in cannabis reform “must ensure access to the growing cannabis industry is equitable” and “incentivize equal opportunity to participate in the cannabis industry, especially for people of colour.”

The scope of the bills in the current Congress reflect a growing demand among Americans to do something, anything, at the federal level that works towards ending the prohibition on cannabis.

But the clash among lawmakers follows the familiar contours of modern lawmaking: Narrow bills with bipartisan support stall while another cohort of lawmakers push larger, all-encompassing packages that inevitably get buried.

Congressional debate over cannabis is largely not a moral one about drug use, or reefer madness-induced panic about its effects, but about the toll the criminal justice system has taken on millions of Americans, how budget-stretched governments can score revenue from a growing business empire, and how to fit all of that into legislation.

“What we’re seeing now is this debate over ideas, and that’s really a good place to be,” Mr Altieri tells The Independent. “Previously the fight we would be having was a lot more about ‘should we legalise [cannabis], and clearly that question has now been answered.”

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