“It took 13 years for the United States to come to its senses and end Prohibition, 13 years in which people kept drinking, otherwise law-abiding citizens became criminals and crime syndicates arose and flourished. It has been more than 40 years since Congress passed the current ban on marijuana, inflicting great harm on society just to prohibit a substance far less dangerous than alcohol. The federal government should repeal the ban on marijuana.”¹

So wrote The New York Times (NYT) editorial board early this summer, in a seminal article advocating the legalization of cannabis (Cannabis sativa, Cannabaceae) titled “Repeal Prohibition, Again.” In it, the editorial board proposed change to the federal laws concerning cannabis — so citizens and states will not be subject to changing presidential administrations’ views on the matter — as well as the establishment of cannabis regulations similar to those pertaining to alcohol and tobacco.

The NYT board cited a US Federal Bureau of Investigation figure of 658,000 cannabis arrests for 2012 in the initial editorial article, contrasting that number with only 256,000 arrests made for heroin, cocaine, and their derivatives for the same year. “Even worse, the result is racist,” the NYT editorial board wrote, “falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.”

According to the article, the editorial board of the NYT believes that the health risks of cannabis absolutely do not outweigh those of legal alcohol and tobacco use; however, they do propose a legal age of 21 be enacted due to potential adverse effects of cannabis on the adolescent brain.

Additionally, in “Repeal Prohibition, Again,” the NYT editorial board announced the commencement of a series of editorials on cannabis issues — titled “High Time: An Editorial Series on Marijuana Legalization” — which was published over the summer of 2014 and is summarized herein.

Part 1: Let States Decide on Marijuana

by David Firestone, July 26, 2014²

This article begins by setting the scene in 1970, with President Nixon “at the height of his white-hot war on crime.” It was in that year that he appealed for the passage of the Controlled Substances Act by Congress; Firestone wrote that the Senate voted unanimously to pass it after Senator Thomas Dodd (D-Connecticut) claimed that cannabis caused “dreadful hallucinations” to the point that it led an Army sergeant to command an attack on his own troops in Vietnam.

Firestone describes the Controlled Substances Act as “antique,” superficially illustrating this view by pointing out the law’s spelling of “marihuana.” Interestingly, he notes that changing the law needn’t involve Congress: both the US Attorney General and the Secretary of Health and Human Services have the power to do so.

With cannabis already legalized either medicinally, recreationally, or both in 35 states in the US and the District of Columbia, “[r]epealing the [Controlled Substances Act] would allow the states to decide whether to permit marijuana use and under what conditions.”

Firestone goes on to call the position of the federal government at the time of the Act’s passing absurd and archaic, specifically because of its categorization of cannabis as a Schedule I drug with no medical value “alongside some of the most dangerous and mind-altering drugs on earth, ranked as high as heroin, LSD and bufotenine, a highly toxic and hallucinogenic toad venom that can cause cardiac arrest.” Cocaine and methamphetamine, meanwhile, are Schedule II drugs with recognized “legitimate medical use.”

“It’s hard for the public to take seriously a law that says marijuana and heroin have exactly the same ‘high potential for abuse,’” wrote Firestone, “since that ignores the vastly more addictive power of narcotics, which have destroyed the lives of millions of people around the world.” No wonder, after more than 40 years of congressional and presidential refusal to reschedule cannabis — which has caused zero deaths from overdose — states are now defying federal law, he asserts. In 18 states and the District of Columbia, Firestone adds, marijuana has been “decriminalized” — “generally meaning that possession of small amounts is treated like a traffic ticket or ignored.” This year, voters in Oregon and Alaska will determine whether to join Washington and Colorado as states in which recreational cannabis use is legal. “The states… are weary of locking up thousands of their own citizens for possessing a substance that has less potential for abuse and destructive power than alcohol,” wrote Firestone.

The article explains that unlike reproductive rights and marriage equality, the ability to use marijuana is not a “fundamental right” and therefore belongs in the states’ purview; the fact that marijuana is illegal on a federal level and carries heavy penalties, however, has discouraged some states from legalizing it.

According to Firestone’s article, the Justice Department stated in August 2013 that it wouldn’t meddle in Colorado and Washington, so long as the following criteria were met:

Marijuana must not be accessible by minors or criminal gangs;

Transport out of state must be prohibited, and;

Prohibition against drugged driving, violence, and illegal drugs must be enforced.

Of course, this guidance “applies only to this moment in this presidential administration” — a reference to the fact that a future president may or may not agree with the current administration’s position and might even propose policies that revert to the previous status quo.

Firestone proposes that the sensible thing is for the federal government to let states make their own choices about marijuana, the same way they’ve made their own choices about alcohol since Prohibition ended in 1933. Some longshot legislation has been proposed that aligns with this view, including the “Ending Federal Marijuana Prohibition Act,”³ which, if passed, would result in the following:

Marijuana would be eliminated from the Controlled Substances Act;

A federal permit would be required to grow or distribute cannabis;

It would be regulated like alcohol is currently regulated by the Food and Drug Administration and the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Another relevant bill — “which would not be as effective” — called the “Respect State Marijuana Laws Act”⁴ has been introduced. If it became law, Firestone explained, cannabis would remain classified as a Schedule I substance, but the Controlled Substances Act would not be enforced “against anyone acting in compliance with a state marijuana law.”

Libertarian Republicans and liberal Democrats, Firestone notes, have a more harmonious perspective on the matter than some may think. “In a surprise move in May, the House [of Representatives] voted 219 to 189 to prohibit the Drug Enforcement Agency from prosecuting people who use medical marijuana, if a state had made it legal,” wrote Firestone. “The measure’s fate is uncertain in the Senate.”

In the meantime, Firestone put forward a suggestion for President Obama, who has been quoted as being in favor of Colorado and Washington’s measures but has punted the matter of cannabis rescheduling to Congress: “[O]rder the attorney general to conduct the study necessary to support removal of marijuana from Schedule I.”

“For too long, politicians have seen the high cost — in dollars and lives locked behind bars — of their pointless war on marijuana and chosen to do nothing. But many states have had enough, and it’s time for Washington to get out of their way,” wrote Firestone in closing.

Part 2: The Injustice of Marijuana Arrests

by Jesse Wegman, July 28, 2014⁵

This article addresses the trends in and consequences of marijuana arrests. “The toll,” writes Wegman, “can be measured in dollars — billions of which are thrown away each year in the aggressive enforcement of pointless laws. It can be measured in years — whether wasted behind bars or stolen from a child who grows up fatherless. And it can be measured in lives — those damaged if not destroyed by the shockingly harsh consequences that can follow even the most minor offenses.”

To illustrate, Wegman turns to the 2010 case of Bernard Noble, who was sentenced to 13 years in prison for possessing a “small amount of marijuana in his pocket.” He had only two nonviolent offenses on his record. Next, Wegman tells the story of Jeff Mizanskey, who received a sentence of life in prison without parole in 1993 “for participating (unknowingly, he said) in the purchase of a five pound brick of marijuana” after two previous nonviolent marijuana convictions.

Prison sentences aren’t the only deeply damaging punishments for marijuana arrests, which affect opportunities for employment and home ownership, among other things, because such arrests remain on an individual’s record for years, according to the article. “[P]olice departments that presumably have far more important things to do waste an enormous amount of time and taxpayer money chasing a drug that two states have already legalized and that a majority of Americans believe should be legal everywhere,” wrote Wegman.

The article claims that 8.2 million marijuana arrests were carried out by police from 2001 to 2010 in the United States, with approximately nine of 10 charged for mere possession; startlingly, according to Wegman, in 2011 “there were more arrests for marijuana possession than for all violent crimes put together.”

Citing the American Civil Liberties Union (ACLU), the Times editorial states that $3.6 billion are spent annually just to enforce existing cannabis possession laws. And still, every year, around 30 million Americans consume cannabis undeterred.

Again crediting the ACLU as a source, Wegman states that while the use of cannabis is comparable between blacks and whites, black individuals are nearly four times as likely to be arrested as white people for possession. “In the worst-offending counties in the country,” wrote Wegman, “[black people] are up to thirty times more likely to be arrested.” Even when charges are dropped, records for arrests are not expunged, to the detriment of people of color in impoverished communities. These “criminal histories,” according to Wegman, can and do result in harsher consequences for minor subsequent offenses.

Of the United States’ 2.4 million inmates, very few — about 1% — are serving sentences for distributing or possessing cannabis, according to the article. Still, many of those sentences are bloated as a result of records tarnished by insignificant offenses, Wegman wrote, adding that approximately nine in 10 have no history of violence and “blacks are 10 times as likely as whites to go to prison for drug offenses.”

On the outside, growers and dispensary proprietors in more than 25 states — particularly those where it is legal recreationally — profit from selling cannabis. Wegman poignantly quotes Ohio State University law professor Michelle Alexander: “40 years of impoverished black kids getting prison time for selling weed, and their families and futures destroyed. Now, white men are planning to get rich by doing exactly the same thing?”

Part 3: The Federal Marijuana Ban is Rooted in Myth and Xenophobia

by Brent Staples, July 29, 2014⁶

Staples chronicles the historical origins of the criminalization of cannabis in the United States, which had less to do with public health concerns than with the stigmatization of minority communities associated with cannabis use in the 1930s — specifically, African Americans and Mexican immigrants.

According to the article, in the mid-1800s, cannabis cultivation was common in the United States for textile purposes. “The practice of smoking it appeared in the Texas border towns around 1900,” wrote Staples, “brought by Mexican immigrants who cultivated cannabis as an intoxicant and for medicinal purposes as they had done at home.” Soon it was prevalent in the region and available in drug and grocery stores. Nevertheless, local law enforcement attacked the substance because of its popularity among “immoral” poor minority groups, which ultimately led to marijuana’s confounding classification as a “narcotic,” along with opium-derived drugs, and, later, the prohibition of non-medically recognized cannabis* in more than 30 states by the early 1930s.

Staples describes the incitement of the federal government’s prohibition of cannabis, beginning with a “prominent doctor[’s]” claim that cannabis smokers were responsible for a surge in theft. “Sensationalistic newspaper articles” abounded, perpetuating exaggerated stereotypes, false facts, and rousing fear among the general population, according to Staples.

Harry Jacob Anslinger, the commissioner of the Federal Bureau of Narcotics and the “architect of national prohibition,” loudly proclaimed that cannabis spurred insanity and harrowing crimes. His propaganda worked — passage of The Marihuana Tax Act of 1937 established a prohibitively high tax on cannabis,^† according to the Times article.

In 1951, the Public Health Service Hospital’s director of research, Harris Isbell, testified before Congress that “smoking marijuana has no unpleasant aftereffects, no dependence is developed on the drug, and the practice can easily be stopped at any time.” But the damage, it seemed, had been done, according to Staples. The consequences for using cannabis became more severe on federal and state levels, even as arguments concerning marijuana’s addictive qualities receded. A trope was born: Cannabis as the “gateway drug.”

It wasn’t until the 1960s, Staples highlights, that the American public began to revisit its stance on cannabis due to the appropriation of the substance by white, well-off young people; the reality of the devastating toll of a marijuana conviction finally was reverberating across the country. The 1972 National Commission on Marihuana and Drug Abuse determined that “criminalization was ‘too harsh a tool to apply to personal possession even in the effort to discourage use,’ and that ‘the actual potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.’” President Nixon was unmoved by these conclusions, but within a decade, most states began a steady mellowing of possession penalties, according to Staples. Today our federal and state cannabis laws remain out of harmony.

“[The federal government] clings to a policy that has its origins in racism and xenophobia and whose principle effect,” Staples asserts in closing, “has been to ruin the lives of generations of people.”

Part 4: What Science Says About Marijuana

by Philip M. Boffey, July 31, 2014⁷

Boffey begins his health-focused editorial with a 2012 quote to Congress from Michele Leonhart, administrator of the Drug Enforcement Agency (DEA): “All illegal drugs are bad for people.” According to the article, Leonhart “refus[ed] to say whether crack [cocaine], methamphetamines or prescription painkillers are more addictive or physically harmful than marijuana.” Boffey uses her testimony to illustrate the chasm between the federal position on cannabis and the scientific facts.

Of all of the editorials in the series, this is perhaps the most dense — and for good reason. Before diving into the deep end, Boffey reiterates that more dangerous and addictive drugs, tobacco and alcohol, are legal; that there is no documentation of a fatal cannabis overdose; and that the research thus far on cannabis does not indicate that it causes cancer.^‡ Having made those statements, Boffey then clarifies that cannabis is not altogether innocuous. “[T]he potency of current strains may shock those who haven’t tried it for decades,” wrote Boffey, “particularly when ingested as food. It can produce serious dependency, and constant use would interfere with job and school performance.”

For healthy adults, the article claims, “casual” use of cannabis carries few risks, if any. According to Boffey, in 2010, a British independent scientific committee analyzed the personal and societal damage caused by 20 drugs (including cannabis, heroin, crack cocaine, and alcohol, among others) and attempted to rank them by harmfulness.⁸ Alcohol was determined to be the most harmful; cannabis placed eighth. Also cited is a nearly 20-year-old World Health Organization study that determined that the detrimental health effects of tobacco and alcohol would be greater than those of cannabis in the West, even if cannabis were to be used as much as the aforementioned legal substances.⁹

A 2012 study, Boffey wrote, concluded that no adverse effects on pulmonary function were associated with smoking one cannabis cigarette (or “joint”) each day over the course of seven years.¹⁰ “Experts say that marijuana increases the heart rate and the volume of blood pumped by the heart,” added Boffey, “but that poses a risk mostly to older users who already have cardiac or other health problems.”

As for the supposed addictive qualities of marijuana, Boffey clarifies that unlike heroin, which is a physically addictive drug, cannabis use can result in a “psychological dependence.” Tolerance can develop in heavy users, necessitating larger doses, and withdrawal can be accompanied by typically mild discomfort. Still, a 2012 American Society of Addiction Medicine white paper stressed that cannabis addiction “is a significant health problem,” according to the Times article.¹¹

Comparatively, though, cannabis addiction or dependence (or the potential for either to develop) is not the scourge to society that other drugs are. Citing a 1999 study from the National Academy of Science’s Institute of Medicine, Boffey claims that a mere nine percent of cannabis users become dependent, as opposed to 32 percent of tobacco users, 23 percent of heroin users, 17 percent of cocaine users, and 15 percent of alcohol users.¹²

One of the longest-running theories posited in the discussion of cannabis’s potential detrimental health effects on minors is that it serves as a “gateway” to use of more harmful substances. “People who try marijuana are more likely than the general population to try other drugs, but that doesn’t mean marijuana prompted them to do so,” wrote Boffey. “The real gateway drugs are tobacco and alcohol, which young people turn to first before trying marijuana.”

Boffey upholds the NYT editorial board’s earlier suggestion that cannabis remain illegal for minors. To support the reasoning of this proposal, he refers to a long-term 2012 study^§ claiming heavy cannabis smoking beginning in one’s teen years and sustained into adulthood results in the loss of eight IQ points by age 38.¹³ A 2002 study, Boffey wrote, “also found an IQ loss among heavy school-age users who smoked at least 5 joints a week.”¹⁴ (There is some speculation regarding causality and correlation, among other concerns.)

The prevailing science does not support cannabis’s current status as an illegal drug; rather, it supports conscientious legalization and regulation. Unfortunately, Boffey does not address in this article the significant, absurd restrictions on medical and scientific research on cannabis due to its Schedule I classification.

Part 5: The Great Colorado Weed Experiment

by Lawrence Downes, August 2, 20141⁵

Since January of 2014, Downes opens, Coloradans have been consuming a variety of (state-) legal cannabis products and cultivating their own plants for recreational purposes. (Medicinal cannabis has been legal in Colorado since 2000.)

“Cannabis sales from January through May brought the state about $23.6 million in revenue from taxes, licenses and fees,” reported Downes. “This is not a huge amount in a $24 billion budget, but it’s a lot more than zero, and it’s money that was not pocketed by the black market.”

Citing the Denver Post, Downes notes that cannabis prosecutions decreased by 77 percent compared with the previous year. Other crime, specifically theft, also has decreased. Economic and employment opportunities, on the other hand, have increased since the state enacted Amendment 64 to “regulate marijuana like alcohol,” according to the article. The amendment should direct significant tax revenue to education and medical research.

Downes highlights that despite the fact that Colorado Governor John Hickenlooper was averse to Amendment 64, “his administration is trying to make legalization work.” Cannabis regulations pertaining to public consumption and age restrictions are being established and enforced; cannabis plants are digitally tracked “from seed to sale.” According to the article, 100% compliance to the law restricting sales to minors was determined for cannabis businesses in Denver and Pueblo under surveillance by Colorado regulators.

The state is also in the process of developing and refining tools to deter drugged driving, which, in the case of cannabis, is more difficult to determine than drunk driving because THC can linger in the body long after use. Downes reports that, according to the Colorado State Patrol, fatal vehicle collisions decreased by about 25% in the first quarter of this year compared to the first quarter of 2013.

As the first state to legalize recreational cannabis, Colorado is on the frontline of identifying and, subsequently, taking responsible measures to counter unforeseen issues such as clear labeling for edibles, the lack of which previously caused concern after a small number of non-fatal overdoses was highly publicized. The state also is leading the way in the areas of educating children and marketing to minors to discourage underage use of cannabis. According to Downes, Colorado is devoting $17 million to these priorities.

In short, by virtue of its early adoption of legalized medicinal and non-medicinal cannabis, Colorado is likely to serve as a national model — encountering unexpected issues and discovering what works and what does not as the proverbial eyes of the United States look on. Its experiment with fully legalized marijuana will be instructive for all. Though Washington state, too, has legalized both medicinal and recreational cannabis, according to Downes, it has implemented “far stricter controls on advertising and public displays, and a tight licensing process that, so far, has allowed relatively few marijuana stores to open, with limited supplies at very high prices.” Consequently, Downes posits, legalized recreational cannabis may not overcome less-expensive black market product — at least among Washington state residents.

Given the remarkable ease with which a medical cannabis ID card is obtained in the state of California — where it is not technically legal for recreational purposes — Downes suggests that perhaps readers yet ought to consider cannabis, for all intents and purposes, unofficially across-the-board state-legal there. Certainly there have been some growing pains since California legalized medicinal cannabis in 1996; however, exceptionally accessible cannabis hardly has transformed the state into an apocalyptically crime-ridden dystopia over the last two decades.

Part 6: Rules for the Marijuana Market

by Vikas Bajaj, August 4, 2014¹⁶

“How should governments regulate the production and sale of [cannabis]?” asks Bajaj. An effective regulatory system, the author asserts, should ensure that cannabis abuse does not increase even as the substance becomes more widely accessible. Further, it should “protect consumers from both dangerous and counterfeit products” and should “undermine and eventually eliminate the black market for marijuana, which has done great damage to society.”

After a state legalizes, the cost of cannabis could decrease as much as 90 percent, according to a Times-cited figure from Stanford law professor Robert MacCoun and colleagues; thusly, cannabis retailers will be motivated to encourage cannabis use for economic gain. According to Bajaj, the Colorado Department of Revenue claims that “nearly 90 percent of the demand for marijuana in the state this year would come from only 30 percent of users, those who use the drug 21 to 31 days a month.”

In light of that knowledge, Bajaj proposes that licensed cannabis retailers decrease prices only to the extent that they push out black-market distributors — adding that anything more may encourage more widespread use and/or dependence. High taxation based on factors other than price (as is the present custom in both Colorado and Washington state) — potentially on potency, inflation, and medicinal vs. recreational — Bajaj offers, may present a solution that will allow the market to circumvent the consequences wrought by insignificant taxation of alcohol.

Further, Bajaj wrote, regulations must be established for marketing to discourage underage use, in the same way regulations ban “outdoor advertising and product placements that the tobacco industry accepted as part of its settlements with state attorneys general in 1998.” Minors also will be protected via labelling regulations and the even distribution of psychoactive ingredients, according to the article. Regulation should address adulteration, as well.

To avoid vertical integration, Bajaj suggests that the cultivation and retail aspects of the cannabis industry be kept apart in the long-run. “Colorado initially required growers to also be retailers in the interest of getting the legal market going quickly but has since allowed them to specialize,” wrote Bajaj, adding that ideally production and sales ought to be separated — as Washington state already has required.

Overall, Bajaj presents what is, in his view, an optimal system of regulation meant to ensure that the cannabis industry does not repeat the mistakes of the alcohol and tobacco industries, both of which are dominated by a very few, and, in the case of the former, has resulted in the imposition of unfair regulations on small artisanal producers. In the case of the latter, scientific inquiry was, for a time, suffocated.

“Whatever states decide to do, it is important that they stand ready to modify policies as legal marijuana markets evolve,” wrote Bajaj. “Policy makers have little experience regulating a fully commercial market in this drug. It makes sense for states to proceed with caution and reserve the right to change as they learn more,” he concluded.

Conclusion

In addition to its longstanding tradition of endorsing presidential candidates throughout the years, the New York Times editorial board has expressed its position on a number of important issues — including marriage equality, the Affordable Care Act, and Guantanamo Bay Detention Camp, to name just a few — in the pages of the “Old Gray Lady,” as the 163-year-old newspaper is sometimes called. The dedication of an entire series of articles to cannabis is apt as the majority of Americans have now shifted in favor of legalization, and because there are plentiful, significant angles from which cannabis’s past and future impacts should be addressed in conjunction with the NYT editorial board’s proposal for federal legalization. So abundant is the relevant information, and so dynamic is the discussion, that it would be virtually impossible to cover every aspect of these changing social, economic, medical, political, and legal trends — but the Times series has succeeded in making accessible some of the more esoteric components of the cannabis conversation, encouraging supplementary edification. In time, readers and activists may come to call this the summer of the “Old Green Lady.”

—Ash Lindstrom

* At this time, cannabis appeared in the United States Pharmacopeia for rheumatism, nausea, and pain, among other indications.

† Up to $24 annually; taking inflation into account, this would be nearly $400 today.

‡ The original NYT editorial did not cite a specific study or studies in support of this statement. A peer reviewer of this article suggested the following study should be referenced: Hashibe M, Morgenstern H, Cui Y, et al. Marijuana use and the risk of lung and upper aerodigestive tract cancers: results of a population-based case-control study. Cancer Epidemiol Biomarkers Prev. 2006;15(10):1829-1834.

§ A peer reviewer of this article characterized this as a very poor quality study, stating that it did not control for binge drinking and alcohol abuse. Further, according to the reviewer, the study employed only one brain scan, and the researchers’ negative conclusions regarding density of the hippocampus contradict the preponderance of scientific literature.

The reviewer added that “All effects on cognition and brain function are reversible after 30 days of abstinence [from cannabis],” citing the following study: Pope HG Jr, Gruber AJ, Hudson JI, Huestis MA, Yurgelun-Todd D. Neuropsychological performance in long-term cannabis users. Arch Gen Psychiatry. 2001;58(10):909-915.

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