George Clause

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Marijuana in the United States is in a precarious legal position.[1] By January 2018, adults 21 years or older will be able to consume the plant legally and recreationally in California, Oregon, Washington, and Nevada (as well as Alaska, Massachusetts and Maine), yet cross the border into Idaho or Utah and be prosecuted for the same conduct.2 All the while the plant remains unequivocally illegal at the federal level.[2] Today, the disconnect between federal and state marijuana laws exists primarily because the plant has been politically demonized.[3]

            But before U.S. pot politics, marijuana had been consumed for thousands of years recreationally and medicinally.[4] Then, in 1906, the Nation’s position on marijuana began to change, and what started as reasonable regulation ended in total abolition at the federal level.[5] First, Congress regulated the plant in the Pure Food Act (PFA), which required that products containing “cannabis indica” (a species of marijuana) be labeled with the name and quantity of the plant.[6] Some years later, the Government, after providing an optional regulatory framework for marijuana legislation, vastly changed its position on the plant through the passage of the Marihuana Tax Act.[7] This Act placed such a severe sales tax on marijuana that the Act’s effect drove the marijuana industry into submission.[8] By 1970, the Government had listed marijuana (as well as heroin and other narcotics) as a Schedule I Controlled Substance, outlawing the possession, use, sale, and distribution of the plant.[9] Here, on the Government’s Controlled Substance list, marijuana has remained for the past forty-seven years.[10]

            Even in the face of the federal government’s unwavering position on marijuana, states have permitted adults to consume the plant legally, defying federal law.[11] Colorado and Washington, in 2012, forged a new frontier for marijuana legislation reform.[12] And by the time of this Note’s completion, Alaska, California, Oregon, Maine, Massachusetts, and Nevada will equally defy federal law, permitting adults to consume marijuana legally and recreationally.[13]

            This Note seeks to analyze recreational marijuana legislation reform through a Structured Cannabis Organizational Reform Evaluation (SCORE). SCORE is a novel, comprehensive form of policy analysis compounding government data with the best available statistical methodology. No one to date has evaluated the breadth of possibilities inherent in marijuana legislation reform.[14] Part I of this Note briefly explores marijuana’s legal history at the state and federal level. Part II discusses Colorado’s marijuana legislation reform. Part III is an overview of the SCORE methodology, while Part IV applies SCORE to Colorado’s present marijuana position — providing readers with a comprehensive policy evaluation. Finally, Part V includes policy recommendations for Colorado, other jurisdictions seeking to legalize marijuana, and the federal government.

[1]Compare Jonaki Bose et al., Key Substance Use and Mental Health Indicators in the United States: Results from the 2015 National Survey on Drug Use and Health, Center for Behavioral Health Statistics and Quality 7 (2016), https://www.samhsa.gov/data/sites/default/files/NSDUH-FFR1-2015/NSDUH-FFR1-2015/NSDUH-FFR1-2015.pdf (last accessed Oct. 26, 2017) (discussing that today, millions of Americans currently consume marijuana while the plant remains unarguably federally illegal), with Comprehensive Drug Abuse Prevention and Control Act, Pub. L. No. 91-513, 84 Stat. 1236 (1970) (amended by 21 U.S.C. §§ 801-889 (2006)) (naming marijuana among the plants and chemicals outlawed at the federal level).

2 About Marijuana, NORML Foundation, http://norml.org/marijuana (last visited Oct. 26, 2017) (mentioning Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington as states which have legalized marijuana).

[2] 21 U.S.C. §§ 801-889 (2006).

[3] See, e.g., Richard J. Bonnie & Charles H. Whitebread II, The Marihuana Conviction: A History of Marihuana Prohibition in the United States 41 (1974) (discussing the political demonization of marijuana stemming from falsities about race, crime, and ethnicity).

[4] Martin Booth, Cannabis: A History 20 (2003) (discussing how marijuana use was recorded at an excavation site in Taiwan dating “between 10,000 and 3000 BC”); Scott C. Martin, A Brief History of Marijuana Law in America, Time Magazine (Apr. 20, 2016), http://time.com/4298038/marijuana-history-in-america/; C. E. Terry, The Harrison Anti-Narcotic Act, 5 Am. J. Pub. Health 518, 518 (1915), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1286619/?page=I. (noting that of the plants and plant derivatives outlawed (opium, cocaine, coca leaves, etc.) marijuana was not mentioned).

[5]Pure Food and Drugs Act, Pub. L. No. 59-384, 34 Stat. 768 (1906) (repealed by 21 U.S.C. § 329(a))(signaling a change in the United States’ position on marijuana by mentioning marijuana for the first time in United States’ regulatory history); 21 U.S.C. §§ 801-889 (2006) (prohibiting marijuana use at the federal level).

[6] Thomas J. Bourguignon, Montana Cannabis Industry Association v. State of Montana and the Constitutionality of Medical Marijuana, 75 Mont. L. Rev. 167, 168 (2014); Law of June 30, 1906, Pure Food Act, 59 Cong. Ch. 3915, sec. 7, 770, 34 Stat. 768 (mentioning “cannabis indica” rather than ‘marijuana’ in the Pure Food Act; and thus, presuming the legislature’s intent to use ‘marijuana’ synonymously with “cannabis indica”).

[7] Andrew L. Scherf, The Societal and Economic Impacts of Recent Dramatic Shifts in State Marijuana Law: How Should Minnesota Proceed in the Future?, 36 Hamline J. Pub. L. & Pol’y 119, 122 (2015) (discussing how the Uniform Narcotic Drug Act provided an optional regulatory framework for marijuana);Marijuana Tax Act, Pub. L. No. 75-238, 50 Stat. 551 (1937) (repealed 1970).

[8] Bourguignon, supra note 6, at 169, 169 n.13.

[9] Schedules of Controlled Substances, 21 U.S.C. § 812 (a), (b)(1) (2012) (listing marijuana as well as heroin as a Schedule I Controlled Substance).

[10] Id. § 812 (a), (b)(1) (listing marijuana as a controlled substance since the Act was passed in 1970).

[11] State Marijuana Laws Map, Governing, http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html (last visited Oct. 28, 2017) (displaying that adults 21 years or older in both states may use marijuana legally and recreationally in defiance of federal law).

[12] Colorado, Washington First States to Legalize Recreational Pot, Reuters (Nov. 7, 2012), http://www.reuters.com/article/2012/11/07/us-usa-marijuana-legalization-idUSBRE8A602D20121107.

[13] State Marijuana Laws Map, supra note 11.

[14] See generally, Angela Dills, Sietse Goffard, & Jeffrey Miron, Dose of Reality: The Effect of State Marijuana Legalizations, CATO Institute 1, 1 (2016) (analyzing marijuana legalizations in Colorado, Washington, Oregon, and Alaska).