Conservative Criminal Justice Reform: Decriminalize or Legalize Marijuana?

"Discount Medical Marijuana - 2" by O'Dea

“Getting arrested for marijuana use may be more harmful than the drug itself — at any age.” – Center on Juvenile and Criminal Justice

Last week on Conservative Intel, I asked the question whether conservatives can and should lead in the area of criminal justice reform and then considered the issue of mandatory minimum sentences. There is another area of criminal justice where reform holds a number of potential benefits conservatives should consider: marijuana decriminalization or legalization.

Indeed, many conservatives are in favor of some changes to marijuana law. Marco Rubio is just one Republican presidential candidate who is open to considering legalization.

And note, for example, that the two major pieces of legislation concerning mandatory minimum sentencing reform involve drug offenses: the Justice Safety Valve Act of 2015 and the Smarter Sentencing Act of 2015, co-introduced by Senators Rand Paul and Mike Lee, respectively.

The Justice Safety Valve Act will expand the exemption to mandatory minimums beyond only first-time offenders, which is current law – according to the judge’s discretion if he determines the offender is not a public safety risk.

And Families Against Mandatory Minimums (or FAMM) says that the Smarter Sentencing Act “reduces prison costs and populations by creating fairer, less costly minimum terms for nonviolent drug offenders.”

(Of course, there are dangers that come with putting too much discretion in the hands of judges, as discussed last week.)

Marijuana laws present a potential opportunity for beneficial returns in two general areas. First, reforms could result in lower prison populations which would save governments money at various levels, thus possibly saving taxpayers money. Second, individuals using or possessing marijuana could avoid a criminal record and the prison time that would result in them falling behind in the workforce and being separated from their families.

With most drugs, it seems likely that an overarching federal policy should be adopted. Think of the trouble that might arise if cocaine were legal in, say, New Mexico but not Arizona. Both the Commerce Clause and the national security powers of the federal government could be invoked as justifications of policies enacted to avoid the potential interstate violence that smuggling might bring about.

Marijuana is a different story. Few can imagine public danger from interstate smuggling of such a mild and readily accessible drug. Therefore, it seems that federalism can work its wonders here: trial and error can help us arrive at workable policies in all parts of the country.

Recreational marijuana is now legal in Alaska, Washington and Colorado. Another 18 states have legalized it for medicinal purposes. Some states have decriminalized possession up to a certain amount.

Arguments have been made that legalization of marijuana will cause usage to drop, at least among underage teens. However, there are conflicting conclusions about whether legalization (in some capacity) has resulted in increased or decreased usage, so far. For example, an article in Forbes concludes it does not among teens. On the other hand, an article in Real Clear Policy concludes that it does among teens. (“Medical-marijuana laws, the authors conclude, ‘amplify’ rates of youth marijuana use, arguably because they allay social stigma and placate fear of a negative health outcome.”)

Decreasing usage among teens is not the only reason proponents have argued for legalization or decriminalization. There is the economic one: legal, taxed marijuana could bring in as much as $10 billion in government revenue. That’s more than 25% of what the federal government spends in foreign aid.

Supporters of legalization also point out that both alcohol and tobacco can cause personal harm and judgmental impairment that risks harm to others, yet both are legal (and regulated). Considering that marijuana is not on the same level of danger to others as heroin, to take one example, why not legalize it as well? In other words, if usage does not decline (or goes up), does that in and of itself mean that the costs outweigh the benefits?

More libertarian-leaning conservatives, at least, do not desire government to prevent individuals from using drugs that are harmful if they choose – that is up to the individual. So while there are still debates over how addictive marijuana is or whether it lowers one’s IQ, the operative question where legalization is concerned it how much it impairs the user.

The jury is still out on that. A study by the National Institutes of Health found that impairment one experiences from the THC in marijuana varies more than alcohol relative to the user’s tolerance level. Marijuana users are more aware that their judgment is impaired than people who are drunk, so they tend to compensate more. That being said, being high definitely affects the various abilities that make driving possible.

From Popular Science:

“We know that when people smoke marijuana they lose some of their peripheral vision,” Huestis says. “We know it affects the passage of time, or the idea of how rapidly time is passing. It affects balance. And one of the most interesting areas it affects is the prefrontal cortex.”

Driving is an exercise in timing, multitasking, and situational awareness — and not one well suited for the cannabinoid-impaired.

If marijuana were legalized and regulated, could cops test drivers like they do for alcohol? Because, again, one’s tolerance level determines to a greater degree than with alcohol how high one is, how much THC is in the blood is not as determinate a factor. Additionally, THC can effectively “hide” in fat cells, while still affecting judgment.

Also, are cops going to administer blood tests on the side of the road? It seems unlikely. The Popular Science article goes on to note that the most promising solution right now seems to be oral specimen testing, or saliva sampling.

Finally, as mentioned at the beginning, there is possibility of reducing the level of incarceration in America. Drug offenders make up about one-fifth of American prison population. An article in The Economist noted that drug-related offenses (not just marijuana-related) accounted “for about 20% of the increase in the incarceration rate” between 1984 and 2009.

It should be kept in mind that public policy does not have to go from complete illegality to complete legality. Consider the following from a RAND Corporation research report:

Marijuana policy should not be viewed as a binary choice between prohibition and the for-profit commercial model we see in Colorado and Washington. Legalization encompasses a wide range of possible regimes, distinguished along at least four dimensions: the kinds of organizations that are allowed to provide the drug, the regulations under which those organizations operate, the nature of the products that can be distributed, and price.

Indeed, the Center on Juvenile and Criminal Justice compared Colorado’s and Washington’s legalization models to the decriminalization models of California, Connecticut and Massachusetts.

They found, among other things (and, again, in some contradiction to other studies) the following:

  • All five states experienced substantial declines in marijuana possession arrests. The four states with available data also showed unexpected drops in marijuana felony arrests.
  • States that decriminalized marijuana for all ages experienced the largest decreases in marijuana arrests or cases, led by drops among young people and for low-level possession.
  • Marijuana decriminalization in California has not resulted in harmful consequences for teenagers, such as increased crime, drug overdose, driving under the influence, or school dropout. In fact, California teenagers showed improvements in all risk areas after reform.

The study concludes by recommending that states “move toward full legalization, regulation, and taxation of marijuana production, sale, possession, and use.”

We may not agree with the behavior or marijuana use, but if a teen does something stupid – as teens do while growing up and learning to be more responsible – and then gets caught, should he have that on his record? This could incentivize learning more criminal behavior because legitimate employment will be harder to come by and knowledge of crime is readily available in prison.

Crime, including marijuana-related crime, disproportionately affects minorities, particularly black men. Although the Center on Juvenile and Criminal Justice found racial disparities in arrest rates both before and after the changes in marijuana law, the reforms did more or less proportionately bring down arrest rates among African-Americans.

As I said in last week’s article, crime certainly needs to be punished. But what should be a crime? Is marijuana a danger to society? In free societies, there are always dangers. Is the danger enough to warrant criminalization? Is the trade-off that criminalization brings worth it? Are the costs of prison time and a criminal record – their effects on families and employment opportunities – outweighed by the benefits of keeping marijuana illegal? Where is the best balance to be found?

These are the questions conservatives should and are beginning to ask. The founders’ genius implementation of federalism may hold the key to finding the answers.