Written by:  Adam Gottlieb
Researched by:  Daniel Kwak
Edited by:  Eric Blaine
Managing Editor:  Mary Anne Nash

America is losing the war on drugs.  Over the past 40 years, the United States Government

has spent more than $2.5 trillion dollars fighting the “war on drugs” yet the number of drug users in the United States has risen to a record 19.9 million Americans.  Meanwhile, each year Mexican drug cartels make billions from drug trafficking and there has been a steady increase in violence directly attributable to drug cartels, which style themselves after small paramilitary forces. Since 2006, more than 12,000 people have died in Mexico due to drug related violence, including more than 5,000 in 2009 alone.  The numbers of dollars spent and lives lost in this war are staggering, yet a disconnect persists between efforts of the U.S. government to curb drug use and the statistics of drug usage.

Many states are taking matters into their own hands and responding to what their citizens have said at the ballot box:  Some drugs are simply not worth fighting over. In some cases, such as with marijuana, many citizens believe that there are legitimate medicinal purposes for some drugs that have been outlawed. However, the United States has a rich history of legislation criminalizing drugs. This history begs the question:  Can the war on drugs be waged at the ballot box?

Puff Puff Passed Laws:  A History of Drug Regulation in the United States

There has long been tension between the Federal Government and the States regarding the right of the individual states to police themselves.  Under the Tenth Amendment, any powers not delegated to the federal government by the Constitution and not explicitly prohibited to the states are reserved to the States and the people. The federal government found a workaround by passing tax acts as an extension of their power to lay and collect taxes.  These acts taxed, and thus regulated, drugs, giving the federal government some authority over an area the courts traditionally considered within the state’s police powers.

Individual states took measures to regulate marijuana in the early 1900’s in response to the Mexican Revolution, the violence of which was spilling over the border into Texas and creating an influx of Mexican immigrants.  By 1921, Wyoming, Texas, Iowa, Nevada, Oregon, Washington, Arkansas, Nebraska and Utah had all outlawed marijuana largely as a reactionary response to the arrival of these new Mexican immigrants.  A chief difference between the new immigrants and the predominantly white populations in these states was that some of the new immigrants smoked marijuana recreationally.  This led to a push by mainly white State residents to outlaw the drug.  This was also part of a wider social movement against recreational intoxicants, as the United States passed the Eighteenth Amendment banning alcohol around the same time.

On a federal level, the government took incremental steps to police drugs. First, the Pure Food and Drug Act in 1906 created the Food and Drug Administration (FDA), which stated that certain drugs could only be sold by prescription, and required that labels for drugs that may be habit forming clearly state so. Next, in 1914, the Harrison Act criminalized non-medical use of drugs.  Using taxes on narcotics, the Harrison Act brought doctors under the regulations included in the act while effectively creating a criminal prohibition against recreational drug use.  Finally, in 1937 Congress passed the Marihuana Tax Act, effectively outlawing all marijuana use and, incidentally, the cultivation of hemp.  After the passage of this act, there was a sharp increase in the number of prosecutions for violating the act, as well as a corresponding increase in public awareness of drugs in general.

In 1969 Congress passed the Dangerous Substances Act which analyzes all drugs for two criteria:  First, whether the drug has a medicinal purpose, and second, the potential for and severity of the drug’s abuse.  Thus, Congress created what is commonly known as “scheduled” drugs, listing out five different Schedules.  To complement these schedules, penalties associated with each level correspond in severity, with the harshest penalties tied to Schedule I drugs , including LSD, marijuana, hash, heroine, cocaine, and other “hard drugs.”

Is Marijuana Medicine and Can States Legalize It?

As of this article there are currently thirteen states that have passed legislation to legalize the use of marijuana for medical purposes with four states utilizing licensed “dispensaries” where users could obtain the drug with a valid prescription. The federal stance on this issue is that marijuana is an illegal and dangerous narcotic that has no accepted medical purpose. The FDA argues that states who have made marijuana available for use upon a doctor’s recommendation are inconsistent with FDA efforts to ensure medications undergo rigorous scientific scrutiny under an FDA approval process and are proven safe and effective for it’s intended purpose. Currently the federal government, through the Department of Health and Human Services, owns the patent for all medicinal uses of marijuana. The FDA has concluded that marijuana has been correctly placed under Schedule I of the Controlled Substances Act as it meets the criteria for the schedule.

In the 2005 case of Gonzales v. Raich, the US Supreme Court ruled that the Commerce Clause allowed the government to ban the use of marijuana for any purpose, including medicinal use. Justice John Paul Stevens wrote for the majority which held, “Congress’ power to regulate purely activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce is firmly established,” regardless of the legality of that commerce.  This decision allows for federal prosecution of both medicinal users and producers of marijuana earmarked for medicinal use.  This case was a major victory for the Bush administration, which had been involved in federal raids of medicinal marijuana dispensaries in California and other states.

Shortly after his election President Obama appointed Attorney General Eric H. Holder Jr., who stated the Justice Department’s new enforcement policy would be restricted to drug traffickers who masqueraded as medical dispensaries and who use State medical marijuana laws to shield themselves from criminal prosecution.  This statement has been widely interpreted to be a tacit acknowledgement that States may regulate medicinal marijuana without excessive federal involvement.

Legalize It – Don’t Criticize It?

It’s no secret the economy has been bad recently and many states are having budgetary problems.  One state looking at an unorthodox method of raising revenue is California.  There are two proposals that may be be included on the November 2, 2010 ballot that could dramatically reform the state’s marijuana regulation.  The first is the Legalize, Regulate and Tax Marijuana Initiative and the second is the Regulate, Tax and Control Cannabis Act of 2010.  Govenor Arnold Schwarzenegger has publicly stated, “Well, I think it’s not time for (legalization), but I think it’s time for a debate.”

The reasons for the open debate are projections that legalization and taxation of marijuana could bring an estimated $1.4 billion dollars in revenue into the cash strapped state, which is still fighting a $26.3 billion dollar budget deficit.  Furthermore, the Legalize, Regulate and Tax Marijuana initiative includes a provision to retroactively expunge any conviction for marijuana related charges and provide convicts a “clean slate,” including releasing those in prison convicted of marijuana charges.  This in turn could free up some much-needed money from the $9.7 billion dollars allotted per year for the California prison system.

Several other states have attempted to decriminalize or legalize marijuana in recent years. In Alaska it is legal to possess up to 4 ounces of marijuana in a private home under the Alaska Supreme Court case of Ravin v. State. In that case the Court found that under the State constitution the citizens have a right to privacy within their own home that extends to possession and use of the drug.  This case is still good law in Alaska even though there have been several attempts to re-criminalize the drug in recent years.

In Colorado, the city of Denver voted to essentially legalize possession of marijuana in amounts less than 1 ounce by setting the fine at $1.  However, a 2006 ballot initiative to legalize marijuana on a statewide basis was definitively defeated.  The effect of this is that state law enforcement officials may still prosecute marijuana offenders to the fullest extent of the law. These test cases for the legalization of marijuana are still rife with constitutional implications, and the debate on how to balance state rights against federal powers is far from over.

Where Are the Laws Headed Now?

While the debate about legalizing marijuana for medicinal use or recreational use has become a hot topic in the United States, Mexico has been facing a severe crisis due to the violent drug cartels that smuggle drugs into the United States.  Violence along the border of Mexico and the United States has been extreme, with casualties and kidnappings of both Mexican and American citizens.  The problem has become so severe that Attorney General Eric Holder has stated that Mexican drug cartels pose a national security threat to America and threaten to destabilize the Mexican government.  Mexico has gone so far as to mobilize more than 36,000 troops to combat the cartels, which have no problem funding their business and paramilitary enterprises.  In one of its most recent reports, the U.S. Department of Justice disclosed that an estimated $17.2 billion dollars was funneled into Mexico in the past two years as a result of money laundering operations.

Beyond activating troops and looking to the United States for more help, Mexico has recently taken a drastic step in their battle on drugs. They legalized them. As of the end of August anybody caught with “personal usage amounts” of marijuana, cocaine, heroin, ecstasy, or crystal meth will not be subject to any criminal penalties. The socially conservative President Felipe Calderon argued that the Mexican government needs to refocus its efforts on combating the sources of drugs and violence, rather than the users. This sweeping change will have an impact in Mexico and could have one here in the United States. Drug reform groups have celebrated these laws as an example the United States should follow if they prove effective across the border.  Whatever your position is, with California’s ballot initiatives gaining momentum, this debate looks to be far from over.