CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, August 6, 2018

Bonnie on Marijuana Regulation

Richard J. Bonnie (University of Virginia - School of Law) has posted The Surprising Collapse of Marijuana Prohibition: What Now? (UC Davis Law Review, Vol. 50, No. 2, 2016) on SSRN. Here is the abstract:
 
It’s been more than forty-four years since the National Commission on Marihuana and Drug Abuse (“the Commission”) recommended decriminalization of marijuana. My perspective on the topic is informed not only by my research on the origins of marijuana prohibition, and my role as Associate Director of the Commission, but also by having been a participant-observer in what remains an unresolved and challenging policy problem. After a quick look backward, I will offer my views about what should be done now.

The origins and intensification of marijuana prohibition span roughly seventy-five years from the late 19th century until the Commission report in 1972.
Marijuana prohibition began to erode after the Commission recommended decriminalization and eleven states liberalized their laws between 1973 and 1978. However, in a sudden shift of political momentum, marijuana prohibition was temporarily reconsolidated over the next two decades (from roughly 1978–1996). After the voters of California passed Proposition 215, support for liberalization revived, initiating a period of ferment as states resumed decriminalization and legalized medical access. Now, in the aftermath of the November 2012 referenda in Colorado and Washington legalizing recreational use, the collapse of marijuana prohibition may be at hand.

What should be the goals of contemporary marijuana regulation? Two questions are paramount. First, what is the underlying aim of the regulatory policy? Is our goal to promote responsible use of marijuana by adults, while deterring and minimizing excessive or dangerous use (and its social consequences), as appears to be the aim of our nation’s current alcohol policy? Or is our goal to reduce or contain the prevalence of marijuana use, as appears to be the nation’s current goal for tobacco policy? Or is it something in between? Second, should advertising and promotion of marijuana products be permitted?

These two questions are related. If the legislature’s objective in repealing prohibition is to set up a regulatory policy that allows recreational use (or medical use for that matter) while seeking to contain it, then it would be illogical to permit private sellers to promote and encourage consumption. In my opinion, once commercialization is permitted, the public health costs will be difficult to contain. As already indicated, I believe that Washington and Colorado are making a huge mistake by starting with a private commercial model for cultivation and distribution.

In my opinion, legislatures legalizing recreational use of marijuana should declare explicitly that the ultimate regulatory objective is to protect the public health, not to facilitate commerce in cannabis products (or to serve the economic interests of suppliers and retailers). Legalization should be designed to accommodate liberty, not to celebrate it. The policy aim should not be to promote or facilitate marijuana use (or even “responsible use”), but rather to manage lawful commerce in marijuana in a way that protects the public health.

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