Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Friday, February 21, 2014

Marijuana reform: ballot measures or the legislature?

Last week, Rob posed an interesting question: should states reform marijuana laws through ballot measure or legislation.  As his post notes, recent state medical marijuana laws have come mostly in the form of legislation.  Earlier reforms were mostly by ballot measure.  

Of course, the ballot measure model has been a matter of political necessity to a large degree.  It took a string of ballot measure victories to begin to convince politicians that supporting medical marijuana might actually be a smart political move.  

If marijuana legalization is going to follow a different path, with greater reliance on legislative reform, politicians will need to be quicker to embrace the issue than they were with medical marijuana.  

This brings me to a notable development, noted by Toke of the Town today.  It appears that all of the Democratic candidates for governor have come out (in some form or another) for marijuana law reform.  Most interesting to me, the most recent candidate to do so cited his belief that legalization may now be inevitable in explaining his position: 

Maryland Attorney General Doug Gansler this week told the Baltimore Sun that he feels the legalization of cannabis is going to happen, and that as governor he would ensure laws are implemented "the right way" if such a change were to happen while he is in office.

If this idea takes hold in the political world--that marijuana legalization is inevitable--I think we may start to see marijuana legalization by legislation happen much more quickly than we did for medical marijuana.  

Of course, whether that is a good thing or not--Rob's question--is a different story.  All things being equal in terms of substance, I think reform by legislation is better than by ballot measure for many of the reasons Rob points out.  

The catch is that reforms by the legislature may tend to be much more cautious than by ballot measure.  In the case of Maryland, the AG says he wants to make sure it is implemented "the right way."  If I had to guess, I would imagine the Maryland AG's thinking about "the right way" would involve a much more restrictive law than what we see in Colorado and Washington.

Chris Christie said much the same thing about medical marijuana in New Jersey, for example.  The result is a medical marijuana law that, at least some advocates say, doesn't seem to be really serving its purpose:

Patients in need of medical marijuana in more than half the state have a tough time getting the drug because the program is too bureaucratic, too expensive and few doctors are willing to participate, patient advocates and a dispensary owner told a state legislative committee today.

To be sure, it could be that some legislatures would enact reforms that are as good or better (in terms of substance) than what we would get from a ballot measure.  And the flexibility that reform via the legislature provides is a big plus, as Rob discusses.  

But, there is the possibility that (at least in some states) the question facing advocates going forward may be whether it is better to have very modest reform by legislation or more robust reform by ballot measure.  

http://lawprofessors.typepad.com/marijuana_law/2014/02/marijuana-reform-ballot-measures-or-the-legislature.html

Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink

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