Legal in the USA: the consequences of cannabis laws

For decades, cannabis has been legalised in some form in many US states. Will the rest of the world follow suit?

Wayne Hall

Law, Health, Arts, culture & society | Australia, Asia, The World

14 December 2015

Wayne Hall takes a look at the US approach to medical and personal use of cannabis, and what it might mean for the rest of the world.

Policies towards the use of cannabis in the United States have changed radically in the past 20 years. For much of the past 40 years the US has had some of the highest rates of cannabis use and some of the most punitive policies towards it in the developed world.

Personal cannabis use was decriminalised in half the US states during the 1970s, but there was a return to punitive policies under Reagan.

Since 1996 around half – 23 – of the states, have legalised cannabis use in some form, for “medical purposes”. Legalisation often occurs by citizen-initiated referenda – a proposal that attracts the required number of signatures is put to the popular vote and, if passed by a majority, must be enacted by the state legislature.

Liberal medical marijuana laws arguably paved the way for the later legalisation of recreational cannabis use. Advocates defined medical use very broadly, allowing large numbers of users to obtain an indemnity against arrest under state law. Some states also allowed commercial “dispensaries” to supply cannabis to “patients” who had a doctor’s recommendation. This created a de facto legal cannabis market in states like California where 10 per cent of males aged 18-24 years reported “medical use”.

Increased public support for cannabis legalisation between 2009 and 2013 enabled the passage of referenda to legalise cannabis in Colorado and Washington State in 2012 and Alaska and Oregon in 2014. Similar proposals are likely to be voted on in 2016, including 10 competing initiatives in California.

So far Colorado, Oregon and Washington State have decided to regulate a legal cannabis market in much the same way as alcohol, limiting use to adults over the age of 21 (the legal drinking age), licensing producers, processors and retailers, and imposing a state tax. Critics are concerned this will lead to the commercialisation of the retail cannabis market with TV advertisements, special deals for frequent buyers etc. So far cannabis commercialisation has been constrained because the drug is still prohibited under US Federal law.

Should the citizens of these US states be worried about legalising cannabis? Those who see it as a wonder herb no doubt see legalisation as a good thing. It allows adults to use the drug without fear of arrest, it provides these states with a new source of tax revenue, and reduces the costs of enforcing the criminal law against cannabis users.

Image by Laurie Avocado via Wikimedia Commons. https://commons.wikimedia.org/wiki/File:Medical-marijuana-sign.jpg

Image by Laurie Avocado via Wikimedia Commons. https://commons.wikimedia.org/wiki/File:Medical-marijuana-sign.jpg

A less sanguine view would be that legalisation could also increase the amount of heavy use and cannabis-related harm. Cannabis is a drug with similar effects to alcohol. It is used for similar reasons by the same demographic – young males – and around 10 per cent of users engage in daily use, often for years, and sometimes decades.

Heavy cannabis use probably has fewer adverse effects than heavy alcohol use (although this is not a ringing endorsement, given the damage that heavy alcohol use causes). The clearest adverse effects are: an increased risk of motor vehicle accidents, if users drive while stoned; and in daily users, a dependence syndrome much like that of alcohol, where users find it difficult to control their use and are unable to stop, despite acknowledging that it is harming them.

More on this: Nobody is winning in the war on drugs. Is it time for a new approach? | Richard Di Natale
Troubled young people seem to be especially likely to become daily users and in this group, daily use is associated with poor mental health, early school leaving, other illicit drug use, unemployment and welfare dependence as adults, and cognitive impairment, if they continue to use daily from their teens and through their 20s and 30s.

It is still early days for cannabis legalisation in Colorado and Washington, but we have some clues as to what may happen from studies of the effects of medical marijuana laws (MMLs) that have operated for much longer. So far studies have not found increased cannabis use by young people in states with MMLs. There is growing evidence, however, that states with MMLs have higher rates of daily cannabis use among adult users. This is unsurprising because MMLs have made cannabis cheaper and more readily available, and increasing access to and reducing the price of alcohol also increases its consumption. MMLs have not so far had a clear impact on motor vehicle accidents but there is emerging evidence that they may have increased the number of people reporting cannabis use problems in surveys, and more users are presenting to addiction treatment services.

A major challenge for US state governments that have legalised cannabis is that it remains a criminal offence to produce, use and sell cannabis under Federal law. Under the Constitution, Federal laws pre-empt state laws when the two conflict, as the US Supreme Court ruled in 2001. In 2013 the Obama administration announced that it would give a low priority to enforcing Federal law in states that legalised retail sales of cannabis, provided these states regulated cannabis in ways that did not endanger public health or public order. The Department of Justice reserved the right to enforce Federal law if these priorities were not respected. It could take action in the US Supreme Court to over-ride the state laws or it could prosecute producers, sellers and state officials for breaking Federal laws; or it could simply confiscate the profits of legal cannabis sellers as the proceeds of criminal activity under Federal law.

It is uncertain how this policy may change after the election of a new President in 2016. Republicans are less supportive of cannabis legalisation than Democrats, but they also prefer to leave these issues to the states. A Federal response will also depend upon how many US states legalise recreational cannabis use in citizen-initiatives that coincide with the 2016 Presidential election.

Advocates of cannabis legalisation have their greatest hopes centred on California with its large-scale medical marijuana industry and a population of 38 million people.  If California were to legalise, the Federal government would come under considerable pressure to change Federal laws e.g. by removing cannabis from the Federal Controlled Substances Act (CSA). California rejected a ballot initiative in 2010, but there are at least 10 ballot cannabis initiatives to be voted on in 2016.

The legalisation of recreational cannabis use in these US states is in breach of the 1961 Single Convention on Narcotic Drugs.  This has major international significance because the US State Department has been the major architect and defender of the international drug control treaty system. The failure of the US government to comply with the drug control treaties will be seen as giving a license to other states to do the same.

Uruguay legalised cannabis in 2013 (in the face of a majority of opposing public opinion). Mexico and other Latin American countries have been discussing similar changes. Europe has more liberal cannabis policies than the USA.

What about Australasia? There is no mechanism for citizen-initiated referenda in Australia and New Zealand and even there were, the majority of public opinion opposes cannabis legalisation. The de facto or de jure decriminalisation of personal use has also arguably reduced some of the adverse social costs of cannabis prohibition, possibly reducing the pressure for more radical reform. This makes it more likely that our politicians will wait and see what happens in the USA before they contemplate more radical changes in their cannabis policies.

Wayne Hall is one of the speakers at the Applied Research in Crime and Justice Conference 2016 on 18-19 February in Brisbane. The event is organised by the Griffith Criminology Institute. For more details: http://www.policyforum.net/events/the-applied-research-in-crime-and-justice-conference-2016/

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2 Responses

  1. Barry Dean says:

    It would of been good if you had of touched on the decrease rate in crime and hard drug use in those States and countries that have legalized cannabis.something I rarely here of but blatantly obvious.

    The fact that those countries no longer use debunked and exaggerated propaganda unlike Australia would likely be the cause of higher social acceptance amongst the public.

  2. Bob Hopkins says:

    Wayne Hall only very briefly touched on Uruguay’s legalisation of cannabis except to say that it was opposed by a majority of citizens. Given the process they undertook in their legislation this doesn’t add anything to the policy discussion.
    President Mujica was concerned to undercut the power and influence of the drug cartels, a multi-billion dollar industry that has resulted in thousands and thousands of deaths in Mexico and has brought about the effective downfall of civil order and government rule. Try reading ‘Çartel’ by Don Winslow if you want to understand how the war on drugs caused the drug trade to become more about power and greed than about drugs: the drug trade just made it financially possible.
    Mujica introduced a policy that was as dissimilar to the US trend as is the political philosophy underscoring it. All users who wish to legally use must register and that allows them to buy 40g of government supplied pot per month. At a low price. The pot was not the genetically modified high THC strain but the same as that naturally occurring in cannabis plants before the chemists started cranking up the potency.
    Registered users could ALSO join a growing club or produce a specified number of plants but were restricted from selling what was produced.
    The registration of users meant that governments could track health, mental health effects, crime and other social issues in relation to users. Bear in mind that cannabis has not been legally available for nearly a century so there is no social impact data based on user records that is anywhere near useful in this regards. And no-one knows what the effects of an aggressively promoted range of cannabis, especially high THC, will result in. Given that most legitimate research has indicated a close correlation with mental health issues, especially amongst young people, dangers involved in cannabis intoxicated automobile driving, possible other health consequences such as cancers … we just don’t know what the impact will be, thus Uruguay’s attempt to track the effects on and of users under a legal cannabis regime.
    The USA has by virtue of its uniquely citizen referenda managed to get cannabis legally available via a campaign that associates it with medicinal use. Mostly by virtue of anecdotal evidence rather than legitimate academic research, such as that required of pharmaceuticals. My own personal research of respected and legitimate clinical trials shows that there is very little published data, though research is currently being carried out on the various cannabinoids with CBD, the element in the cannabis plant that acts as a modifier of the stupefying effects of THC, and provides promising possibilities. However double blind research is only now starting in areas such as infantile epilepsy where anecdotal reports indicate positive results.
    In the states in the USA where cannabis is legally available there is quite alarming evidence of a noticeably higher rate of use amongst young people … and that’s often amongst really young people as a consequence of the availability of cookies and confectionary using high THC which enters the home by way of adults but is being consumers by minors … and a worrying increase in the number of cannabis impaired drivers in fatal automobile incidents. Amongst other things.
    Due to the pressure of the USA notions of civil liberty there is no tracking of effects upon users. To my mind this is a worrying factor. The neoliberal free market philosophy of the USA encourages anything that turns a profit, irrespective of consequence. Take climatic warming as an example of this.
    The USA and its cohorts, like here in Australia, are not the nations we should be looking to for examples to follow. Portugal is a good positive influence but remember that there is mandatory re-hab for arrested users. While this has led to remarkable recorded impacts like addiction rates falling, the supply side is still in the hands of those operating outside the law i.e. criminals, and often organised crime.
    The Latin American nations is where creative and coherent policy areas are being tested. It is vital that the supply side be considered and policy developed to take the removal of the criminal area of supply. The amounts of cash involved provide much scope for corruption, not only official corruption but corruption of otherwise ordinary citizens.
    These people are often those driving the decriminalised changes as it opens up the markets a whole new range of consumers. It is in there interest for there to be no change to supply reform. Think not only Al Capone, Meyer Lansky and Joe Kennedy, but the fabulously wealthy patrones of the Mexican, Colombians, Central American cartels. There power must be broken. Its obscene and it challenges the health of democratic life.
    I’d recommend Chasing the Scream, a 2015 published book that critically reviews the history of prohibition.
    Anyone wishing to correspond with me and continue this important discussion can do so by e-mailing me at bobkins@hotmail.com

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