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Decriminalization Is Not Enough

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According to recently released FBI crime data, there were 1,572,579 drug arrests in the United States last year. That’s an average of one drug arrest nearly every 20 seconds. The total number is up by about 5.6 percent from the 1,488,707 arrests for drug crimes in the United States in 2015.

Because of a change in how the annual law enforcement numbers are publicized, it’s harder to determine just how many people were busted for marijuana and how many were busted for other drugs. However, Tom Angell — founder of the nonprofit Marijuana Majority and editor of the cannabis news portal Marijuana Moment — was able to determine that “marijuana arrests are on the rise in the U.S., even as more states legalize the drug.”

According to Angell,

Marijuana possession busts comprised 37.36% of all reported drug arrests in the U.S. in 2016, and cannabis sales and manufacturing arrests accounted for another 4.18% of the total. Added together, marijuana arrests made up 41.54% of the 1,572,579 drug busts in the country last year. That means, based on an extrapolation, that police arrested people for cannabis 653,249 times in the U.S. in 2016. That averages out to about one marijuana arrest every 48 seconds.

It is incredible that the federal and state governments’ war on marijuana is still going strong.

Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington, have, with the District of Columbia, legalized the recreational use of marijuana. Twenty-nine states and the District of Columbia have legalized the medical use of marijuana. And now, since last month in New Hampshire, twenty-one states and the District of Columbia have decriminalized the possession of marijuana.

Decriminalization reduces the penalty for possessing certain amounts of marijuana to a civil violation, thus eliminating the possibility of arrest, jail time, and a criminal record for marijuana possession.

On July 18, 2017, New Hampshire’s governor, John Sununu, signed a bill (HB 640) into law that decriminalizes the possession of three-quarters of an ounce of marijuana or less. The bill had passed the New Hampshire House and Senate with wide bipartisan support, and it took effect on September 16.

Under the new law, people caught possessing three-quarters of an ounce of marijuana or less will receive a $100 fine for their first or second offenses. A third offense within a three-year period brings a $300 fine. The fine is waived “for a single conviction within a 3-year period upon proof that person has completed a substance abuse assessment by a licensed drug and alcohol counselor within 60 days of the conviction.” The marijuana must be forfeited to the state. Before the new law went into effect, first-time marijuana possession was treated as a criminal misdemeanor punishable by a maximum sentence of one year in jail and a $2,000 fine.

Public support for the new law can be gauged by a Granite State Poll that was conducted by the University of New Hampshire Survey Center and released in May. More than two-thirds of New Hampshire adults strongly or somewhat support legalizing the possession of small amounts of marijuana for personal recreational use. More than 50 percent say they want marijuana legalized and taxed like alcohol.

But in spite of progress on the decriminalization front, the decriminalization of marijuana is not enough. Decriminalization is never absolute; it always comes with a myriad of government regulations and restrictions, as does the legalization of marijuana for medical or recreational use.

The decriminalization of marijuana is not enough because it applies only to the possession of small amounts of marijuana. In most states that have decriminalized marijuana possession, no more than one ounce of pot is allowed.

The decriminalization of marijuana is not enough because one can get caught with marijuana only a few times. Fines increase for subsequent offenses, as does the possibility of jail time and being charged with a felony.

The decriminalization of marijuana is not enough because it includes only possession. The sale or cultivation of marijuana is generally still prohibited and can result in large fines and mandatory minimum prison sentences. And woe to those who are caught “trafficking” in marijuana. For example, in Nebraska, the sale of any amount of marijuana is a class III felony, punishable by a 1-year mandatory minimum sentence and the possibility of 20 years imprisonment and a maximum fine of $25,000. A second violation is a class ID felony that carries a prison sentence of 3 to 50 years.

The decriminalization of marijuana is not enough because the federal government still classifies marijuana as a Schedule I controlled substance under the Controlled Substances Act, with a high potential for abuse and with no acceptable medical use. The usurped authority of the federal government under the Commerce Clause to override state and local laws that allow the local cultivation and use of marijuana was confirmed by the U.S. Supreme Court in the case of Gonzales v. Raich (2005). This in spite of the fact that the Constitution nowhere grants to the federal government the authority to have anything to do with marijuana or any other drug. The states could legalize marijuana and let the federal government wage war on marijuana without their help; or the federal government could end its war on marijuana and leave the prohibition and regulation of marijuana up to the states. Preferable is the former in each scenario.

The decriminalization of marijuana is not enough because it doesn’t include other drugs. Possession of even small amounts of cocaine, ecstasy, amphetamines, crystal meth, LSD, or heroin will still get one arrested, fined, and imprisoned in every state in the Union. In a free society, people would be able to freely possess or sell all drugs.

Decriminalization is not enough. It is better than prohibition. It is not as good as legalization. And it should certainly not be confused with drug freedom. But it is a step in the right direction.

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