By RICHARD M. EVANS
22 April 2010
Now that an initiative to legalize marijuana is officially on the
California ballot this November, President Obama should brace for a strong jolt from the west.
If the measure passes (the latest poll puts support at 56 percent), no
longer will it be a crime under state law for an adult to cultivate, possess or
transport a personal supply of pot. Moreover, cities and counties will be
authorized to regulate and tax commercial production, distribution and sale
of marijuana, subject to restrictions and protections for minors and
public safety. Revenue raised by marijuana sales would go to local governments, not Sacramento. Initiatives are also in the works in Washington and Oregon.
The president’s dilemma, in confronting state repeal of prohibition, lies
in that marijuana will remain prohibited under federal law. It’s not the
first time something like this has happened.
In 1923, during the prohibition whose era now gets a capital P, New York
repealed its alcohol-prohibition laws, shifting the burden and expense of
enforcement onto federal authorities. Not only did the state gain significant
savings in law- enforcement costs, but perhaps as a consequence, for the
remaining 10 years of Prohibition New York City escaped the level of crime
and violence that plagued some other large cities, such as Chicago and
Detroit. It also explains why, in movies of the era, police are often called the ‘Feds’.
If California voters see marijuana prohibition as unsustainable and vote
accordingly, howls will arise, most audibly from politicized public employees
who see their jobs at risk. There will be the usual bleating about ‘sending the wrong message’ to children, as if criminal-justice policy should be
based on how it might be misconstrued by the immature. Moralists will
sputter. Congress will bluster. It will be a splendid kerfuffle.
Faced with no local marijuana enforcement, the president’s choices are
limited. He could send in armies of federal agents to patrol the streets and
surveil backyards and basements. In no time, surely, the corridors of federal
courthouses would fill with sad-eyed teenagers and small-time pot dealers,
and already overburdened judges will roar.
Another option may be to retreat, as with medical marijuana, ordering
federal police to ignore conduct that is in compliance with state law, including licensed and regulated farms, plants and shops. However, this restraint conflicts with the president’s constitutional duty to ‘take care that the laws be faithfully executed,’ notwithstanding the stated reason for not
interfering with medical marijuana was that the Feds simply do not have the
The president’s best option is the last resort of scoundrels and statesmen
alike: to tell the truth. He can remind the nation that marijuana was
outlawed early in the last century to oppress minorities, and, shamefully, its prohibition continues to serve that function. He can deplore how the
government uses the marijuana laws to insinuate itself into the personal lives of Americans, leaving millions with stained records that rule out good jobs and even an education. He can lament how it is really marijuana prohibition that ‘sends the wrong message’ to children, by conflating the concepts of use and abuse, undermining honest drug education.
He could condemn the utter hypocrisy of outlawing marijuana, which has
never killed anyone, while we regulate and tax alcohol and tobacco, both
deadly, and celebrate drink as an integral part of many social rituals.
He could admit the obvious fact that marijuana has become an inextricable
part of our culture, despite decades of anti-drug propaganda. He could
challenge the defenders of prohibition to tell us how many more people will have to be arrested, prosecuted and punished before marijuana is extirpated
from our land, and how much that will cost, and where the money will come from to pay for it.
On June 12, 1987, Ronald Reagan stood at the Brandenburg Gate in Berlin and exhorted Soviet President Mikhail Gorbachev to ‘tear down this wall’.
November may well deliver an exhortation from the voters of California to tear down the wall of marijuana prohibition.
Might this be Obama’s Gorbachevian moment?
Richard M. Evans is a lawyer in Northampton and maintains the Web site