Marijuana Possession and Incarceration Cross-Post

Photo Credit: Hossam el-Hamalawy

I was over at the Reality Based Community, as I often am when I'm not here, when I got into an interesting discussion about the nationwide prison population. The big news from Keith Humphrey's original post is that 2010 saw the largest decline in the prison population in the last 40 years. Actually, it was the only decline in the prison population in the last 40 years. It had been on a steady upward trajectory for the last four decades. So what happened?

Mr. Humphreys credits some changes in federal policy:

The president’s administration would have to roll back the crack/powder cocaine sentencing disparity and end “drug war” rhetoric, creating change at the federal level and also inspiring individual states to re-evaluate their drug sentencing guidelines. The Administration would also have to invest in re-entry programs and highlight more effective methods of parole and probation. Marijuana possession cases make far less contribution to incarceration than Gopnik asserts in his article, but some marginal reductions in the number of people under criminal supervision could come from a White House reversing past practice and not opposing state-level marijuana decriminalization laws in places such as California and Massachusetts.

Boldest Marijuana Legalization Proposal Yet

News today from Washington State has a former US Attorney voicing support for a plan to have Washington State sell marijuana to adults over 21 years of age via the state liquor board. The state liquor board already controls all non-beer and wine sales in the state, excepting of course sales that occur on tribal lands.

The attempt to have state officials distribute marijuana to Washington residents is in direct conflict with the Controlled Substances Act, which prohibits any sale, manufacture, or possession of Schedule 1 substances. Schedule 1 substances are classified as having a high addiction potential and no medical value. Marijuana was made a Schedule 1 substance when the CSA was signed into law despite a long history of being used in health tinctures in the 19th and 20th centuries, and the infamous program in which the federal government provided marijuana cigarettes to a limited number of patients who benefited from the drug. State officials are sworn to uphold the laws of the United States if they are in conflict with state laws.

There is little reason to believe that Washington state would prevail over the federal government if they chose to resist federal law in this instance. The federal government has vast resources devoted primarily to enforcing the controlled substances act, with plenty of backup possible from the Department of Alcohol Tobacco and Firearms, a department that already has plenty of interaction with the Washington State Liquor Board. US Attorneys would likely not choose seek a federal judge's injunction on such a program when the executive branch already possesses precisely the authority to disrupt distribution networks. This bill is a rare honest attempt at imagining a post-prohibition marijuana regulation regime, and it deserves to be debated in that hypothetical realm. Dismissing the plan on the basis of incompatibility with federal law would do a disservice to the citizens of Washington.

Federal laws will necessarily occupy much of the field in the quality standards, packaging, and basic legality of marijuana. Federal power to regulate marijuana is well established.