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Why Has Marijuana Remained Illegal for Over 70 Years?

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Last week Breckenridge Colorado joined the growing chorus of municipalities across America seeking to create a sensible cannabis policy (one, that in principle, is similar to that of alcohol in the recognition between acceptable, responsible adult use and abuse). Even though Colorado is already one of the 13 states that have decriminalized possession amounts of cannabis, following Denver’s lead, Breckenridge voters will soon be asked to make cannabis both a lowest law enforcement priority and the ‘penalty’ for possessing it– nothing. Nada. No fine, no criminal record.

A bright and enthusiastic lawyer with a young and growing family in Breckenridge is one of the chief advocates for this initiative, and in an ongoing ‘The Law and Marijuana‘ series of essays submitted by attorneys from the NORML Legal Committee to be exclusively published by the organization, Sean McAllister opines about why he thinks cannabis prohibition has lasted over 70 years.


By Sean T. McAllister, Esq., Member, NORML Legal Committee (Breckenridge, CO)

Marijuana remains illegal even though public attitudes are clearly changing on this topic. It is illegal even though 100 million Americans have smoked it and suffered little if any negative side effects. It is illegal even though 40% or more of Americans currently support legalization. It is illegal even though it is not physically addictive; you cannot overdose on marijuana; and the dependency rate of marijuana is lower than alcohol.

Marijuana remains illegal even though prohibition is incredibly expensive. The federal government spends at least $10 billion per year specifically on marijuana prohibition. Approximately 60,000 people are in prisons in America on marijuana violations only. If all 15-25 million Americans who smoke marijuana monthly were imprisoned, the country would spend $365 billion per year to incarcerate these people. Considering the country could reap approximately $6.2 billion per year if marijuana were taxed and regulated like alcohol, the war on marijuana easily costs somewhere in the neighborhood of $20 billion per year.

Marijuana remains illegal even though prohibition has miserably failed. After 35 years of a war on drugs largely targeting marijuana, the same number of high school students now say marijuana is easy to get and they had used it as answered those question in the affirmative in 1975. It remains illegal even though the Obama administration has declared an end to the “war on drugs,” while at the same time laughing off marijuana legalization.

Marijuana prohibition continues even though it empowers Mexican drug cartels. Approximately 60-70% of the profit of Mexican drug cartels comes from marijuana sales. If marijuana were taxed and regulated, this black market would virtually disappear, Mexican drug cartels would be much weaker, and our border would be much more secure.

Despite these facts, most politicians continue support marijuana prohibition. Commission after commission and newspaper editorial board after board may endorse marijuana legalization, but it continues to be ignored in state capitals. Grassroots activism does a great job keeping this issue in the press, but politicians continue to ignore it. Few politicians see it in their narrow interests of reelection to come out in favor of legalization of marijuana.

What follows is a brief analysis of some of the factors that continue to propagate the inertia of marijuana prohibition:

Facts don’t matter

When it comes to marijuana, statistics don’t seem to matter. Costs don’t matter. As noted above, no matter how many billions per year it costs to enforce marijuana prohibition, there seems to be no cost too high to prohibit it. Prohibitionist seem to be saying that there is no cost to high to attempt to limit marijuana use.

Overall use and teen use is lower in countries that have legalized (Amsterdam) or fully decriminalized marijuana (Portugal, Spain, Britian) than in the United States. There is no real evidence that marijuana is a gateway drug (in fact research shows that marijuana is largely a terminus drug - meaning people use nothing more than marijuana throughout their lives).

In Colorado alone, 13,000 people are arrested every year on marijuana charges. Another few hundred are in prison on marijuana charges. In total, Colorado spends around $85 million dollars per year on marijuana prohibition. If Colorado taxed and regulated marijuana, the net gain for the state coffers would be $150 million per year.

None of this seems to matter to those in favor of prohibition. Instead, the debate turns on value judgments and justifications not tried to any empirical data. While those favoring legalization should continue to insist that we deal with empirical data, facts alone will not legalize marijuana.

Prohibition is a hangover of the 60s culture war

By far the greatest impediments to living in a world where marijuana is not criminalized are the left over stereotypes and culture wars from the 1960s and 70s. Those where the decades when the counterculture made widespread marijuana use synonymous with alternative lifestyles and an implicit rejection of mainstream traditional American values.

The classic narrative of drug use in America is that while it may have started out as an innocent and idealized behavior in the 60s, the 70s and early 80s saw the “drug culture” deteriorate into a narcissistic world of selfishness and excess. The irresponsibility of some early users saddled the next several generations with the general notion that marijuana users were not good citizens and their lifestyles did not produce healthy communities and families. Simply put, prohibitionist have succeeded in branding marijuana users as irresponsible and not serious. That perception must change, even if it means more people “coming out of the closet” and showing that marijuana use can occur in conjunction with healthy, intelligent lifestyles.

Marijuana Prohibition Criminalizes Youth and Leads to Skewed Electoral Results

The classic pattern of marijuana use is that people begin experiment with marijuana near the end of high school. Experimentation steadily tappers off through their late 20s and for most people by their mid-30s, marijuana use is a rare or nonexistent experience. As people acquire more responsibility (marriage, children, mortgage), they find less room in their lives for marijuana.

This trend also explains why political change is so hard. As marijuana withers from adults’ habits, they are less likely to pursue or advocate for reform. By a person’s mid-30s, he or she has already quit using marijuana so they have no incentive to seek its legalization. This leads to the general atmosphere of marijuana reform, which is that too few people remain directly affected throughout their lifetimes so as to care about changing marijuana laws. Those that continue to “care,” perhaps care too much and are seen as radicals by the establishment. The reform movement needs to engage past users to help change marijuana laws.

Free rider problem and Selective Enforcement

For those that will continue to use marijuana throughout their lifetime (perhaps 6%-10% of users), there also is little incentive to advocate for legalization. As few as 2 in 100 people ever suffer criminal justice sanctions as a consequence of their marijuana use. Because so few stakeholders feel the effects of prohibition, those with the most at stake in legalization are not in the streets demanding change. The difference between the gay rights movement and marijuana proponents is that by advocating for marijuana rights people immediately subject themselves to criminal prosecution – something no longer possible for gay activists.

Related to the free rider problem is the low stakes involved in most marijuana arrests. With the exception of a few states in the deep south and Utah, in most places marijuana arrests result in a small fine and perhaps community service and/or drug counseling. The popular stereotype that our prisons are filled with people who only smoked marijuana cigarettes is not accurate. Small time users generally do not go to jail, but cultivators and distributors do. Therefore, the lack of serious sanctions has also deflated the potential movement against injustice because the stakes are so small. Why would a doctor or lawyer risk his or her reputation seeking to legalize marijuana when the sanctions are already so slight? Again, these free riders need to be convinced that advocating for marijuana legalization is a “gateway issue” to reforming the larger failed drug war and that they may not avoid prosecution forever.

Inability to have an honest discussion about drugs – lack of acknowledgement of responsible use

Another barrier to societal acceptance of marijuana is the inability to have an honest dialogue about the potential positive benefits of marijuana use. Universally, when drugs and marijuana are discussed in public, the frame of debate is that marijuana use is a self-destructive and unhealthy activity. There is little public acknowledgement that for millions of people occasional and responsible marijuana use has greatly enhanced their lives, such as by making a walk in nature powerfully introspective, by resulting in riotous laughter, or by making their sex lives more fulfilling. Instead, those who are usually the most outspoken about marijuana’s positive aspects tend to preach in a manner that makes marijuana use out to be an unmitigated good, refusing to acknowledge any negative consequences of abuse. The message of legalization must be that while legalization may marginally increase some irresponsible behavior, the savings from ending the war on marijuana will far outstrip any harms.

Just say no is an easy message for parents

Parents have always had a hard time discussing drug use with their children. Many parents are conflicted on this issue because a large percentage of parents once experimented with marijuana. Keeping marijuana illegal gives parents an unassailable reason why their kids should not use it: because it is illegal. The simplicity and utility of prohibition is a major reason that many parents passively support it, even if they privately don’t believe marijuana is harmful. Parents need to be shown alternative methods for keeping their children away from marijuana, such as science based drug education.

A long term minority without a constitutional right protecting them

The main Constitutional defense to marijuana prosecution is that it violates rights to privacy under the 5th and 14th Amendment. Unfortunately, other than Alaska, most experts believe that state privacy rights are not strong enough to protect marijuana use in your own home. There are no other significant constitutional guarantees that can be expected to protect marijuana users. Unlike racial minorities or gays and lesbians, it is unlikely that marijuana users can seek refuge in Constitutional clauses for their activities. With only 15-25 million regular users, about 10%-15% of all adults in America, it is unlikely that a majority of American adults will ever use marijuana on a regular basis as long as it is illegal. Without a constitutional right to protect them, it is unlikely they will be able to muster electoral majorities in the next 10-15 years to end their persecution.

Discomfort with Freedom

Despite America being the “land of the free and home of the brave,” in practice there appears to be a significant resistance and discomfort with giving people the freedom to make potentially bad choices. Regardless of how many can use marijuana safely or responsibly, if some abuse it, many will oppose legalizing it. This inherent discomfort with the actual practice of freedom is a major cultural hurdle to legalization.

The many have always paid for the poor choices of the few. Marijuana prohibition is by definition a preemptive war which seeks to criminalize all who use marijuana because a few may abuse it. While America seems to recognizing the futility of preemptive wars, there is still a strong undercurrent of support for this type of reaction.

Discomfort with Marijuana Intoxication Compared with Alcohol

There is no principled distinction between alcohol and marijuana intoxication. The Attorney General of Colorado says that people can drink alcohol in “sub-intoxicating doses,” which seems only possible for those chronic users of alcohol who are not affected by small amounts. Of course, the mild psychedelic or psychological aspects of the marijuana are different than alcohol. The paranoia resulting from marijuana use in a small number of users is among its most common psychological negative effect. While most people experience great insight and pleasure from the use of marijuana, others experience this paranoia. The general discomfort with psychedelic or spiritual experiences related to marijuana use lead many to a conclusion that it should not be widely used. Again, this is the many paying for the negative consequences of the few.


Marijuana legalization is gaining steam. I believe firmly that in my lifetime it will be legal for both medical and recreational purposes. What seems necessary at this point is to build a movement of tolerance for responsible marijuana users’ rights to be left alone. This tolerance will also need to acknowledge that a small minority of people may abuse their freedom if marijuana is legalized and that society will need to deal with those negative effects. Surely all the money saved on incarceration and prohibition would cover the costs of any negative effects of legalization. Rather than spending another generation toiling under a failed system, I hope we can end this failed preemptive war on marijuana soon. However, it will not end until the reform movement addresses the above concerns and transforms the debate back into a human-centered fact-based dialogue which focuses on reasonable solutions rather than ideology.

Sean T. McAllister, Esq.
McAllister Law Office, P.C.
PO Box 3903
Breckenridge, CO 80424


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