Predictably, the federal government – which continues to define cannabis as equally dangerous to heroin – is not amused. According to various media reports, the Justice Department is in the process of reviewing the nascent state laws. Meanwhile, the U.S. Drug Enforcement Administration has already affirmed that the agency’s “enforcement of the [federal] Controlled Substances Act remains unchanged.” That may be true. But in a matter of weeks, the local enforcement of marijuana laws in Colorado and Washington most definitely will change. And there is little that the federal government can do about it.
States are not mandated to criminalize marijuana or arrest adult cannabis consumers and now two states have elected not to. The federal government cannot compel them to do otherwise. State drug laws are not legally obligation to mirror the federal Controlled Substances Act and state law enforcement are not required to help the federal government enforce it. Yes, theoretically the Justice Department could choose to prosecute under federal law those individuals in Colorado and Washington who possess personal amounts of cannabis. But such a scenario is hardly plausible. Right now, the federal government lacks the manpower, political will, and public support to engage in such behavior. In fact, rather than triggering a federal backlash, it is far more likely that the passage of these two measures will be the impetus for the eventual dismantling of federal pot prohibition.
Like alcohol prohibition before it, the criminalization of cannabis is a failed federal policy that delegates the burden of enforcement to the state and local police. How did America’s ‘Nobel Experiment’ with alcohol prohibition come to an end? Simple. When a sufficient number of states – led by New York in 1923 – enacted legislation repealing the state’s alcohol prohibition laws. With state police and prosecutors no longer complying with the government’s wishes to enforce an unpopular law, federal politicians eventually had no choice but to abandon the policy altogether.
Will more states join Colorado and Washington in repealing cannabis prohibition? Most likely the answer is ‘yes.’ Nationwide polls by Gallup, Rasmussen, and other respected pollsters indicate that a majority of Americans espouse ending America's nearly century-long, failed experiment with cannabis prohibition and replacing it with a system of limited legalization and regulation. And voters’ support is not just limited to western states. On Election Day, voters in Detroit and several other Michigan cities also decided overwhelmingly in favor of municipal ballot measures to legalize the possession and use of cannabis by adults. In Massachusetts, voters in over 40 cities decided similarly on municipal ballot questions calling on lawmakers to either regulate marijuana like alcohol or to simply repeal cannabis prohibition altogether.
In short, most Americans now acknowledge that marijuana prohibition is an ineffective, wasteful, and destructive public policy. They understand that the ongoing enforcement of cannabis prohibition financially burdens taxpayers, encroaches upon civil liberties, engenders disrespect for the law, impedes upon legitimate scientific research into the plant's medicinal properties, and disproportionately impacts communities of color. And they acknowledge that it is time to stop stigmatizing and criminalizing tens of millions of Americans for choosing to consume a substance that is safer than either tobacco or alcohol.
On Election Day, voters in Colorado and Washington turned their backs on cannabis prohibition. They are the first to do so. But they will not be the last. Inevitably, when voters in the other 48 states see that the sky has not fallen, they too will demand their lawmakers follow suit. As more states lead the way, federal politicians will eventually have no choice but to follow.
Armentano is the Deputy Director for NORML, the National Organization for the Reform of Marijuana Laws, and is the co-author of the book, “Marijuana Is Safer: So Why Are We Driving People to Drink? (Chelsea Green, 2009)