August: Ask an Attorney #4

Hi! Welcome to the August: Ask an Attorney Series! Be sure to check out my other posts in the series by clicking here.


QUESTION FOUR: Why isn’t marijuana legal everywhere, like in Colorado? They are raising a ton of money from marijuana sales, and seem to be doing fine.

The legal issues around marijuana – medical and recreational – in the United States are abundant and complex. It is truly one of my favorite debates, and an extremely relevant one, since the federal government is kinda, sorta [but not really committing to] reclassifying marijuana in federal law as a schedule two drug. “What the what?!?” you say, “Schedule what now?”

Let’s start with some background information, like the concept of dual sovereignty. The phrase itself is fairly simple: “dual” = two; “sovereignty” = supreme power or authority/governing state. defines the doctrine by saying, “A maxim of law which allows the double prosecution of a person by more than one state for the same crime, where both states have jurisdiction for the prosecution, and notwithstanding the double jeopardy rule.”

In short, dual sovereignty means in the United States, you have two governments to report to: your state government, and the federal government. They have different laws, and you have to obey both, and if you do something that breaks bothboth of them can prosecute you.

Another concept you should learn here is regarding conflicts of laws. There is a distinct hierarchy of power among the sovereigns, and even within them. So let’s say the Oklahoma governor signs a bill into law saying everyone in the state has to wear blue shirts on Wednesdays. But the same day, the United States Congress passes a law saying everyone has to wear red on Wednesdays. These laws are in direct conflict with each other: no one can obey both of them. So who wins?

For the most part, federal law beats state law. [There are intricacies of this rule, but they don’t matter here.]

The point of teaching you about dual sovereignty and conflicts of laws is because of the part of the question where it was implied that marijuana is legal in Colorado. That’s not true, because there are two laws in effect in Colorado (federal and state), and because federal law says marijuana is still illegal (and federal law trumps state). Got it? Good.

[Side note: if marijuana is so illegal in Colorado, why is everyone acting like it’s legal? Excellent question. See, a long time ago the United States Supreme Court was like, “Hey, we have all these states. You know what would be fun? Let them experiment and try stuff we couldn’t at a national level, just to see how it works out?” Thus, the concept of states as “laboratories of democracy” was born. What this means for our discussion is that the federal government is literally sitting back, chilling, and is like, “Okay Colorado, we won’t stop you now, but if things get out of hand we will be right here watching.” But Colorado’s marijuana dealers aren’t taking any chances; there is even a booming security industry in Colorado to keep an eye on all the dealer’s cash. Because you know who doesn’t want to hold money that the federal government could come in and take as illegal drug money at literally any time? Banks.]


No matter what shade of blue each state is, marijuana is still illegal there.

Okay, so now that we know that marijuana is illegal in every single one of the United States, what’s this “schedule” business?

Back in the day, Congress passed a law saying (basically), “We want a way to group drugs into different categories to make it easier to figure out how much to punish people for abusing these. Let’s figure out which drugs have the most medical uses and lowest risk of abuse, and then figure out which ones have the least medical uses and highest risk of abuse, and put it all in a chart called a ‘schedule.'”

Now we have five schedules, and you can read more about them and what drugs are where by clicking here. As you saw on the link you clicked (totally, right?), marijuana is a “Schedule One” drug. Pursuant to 21 U.S.C. Sec. 812, a Schedule One drug has three characteristics: “(A) The drug or other substance has a high potential for abuse. (B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.”

[P.S. Take note that in the list of which drugs are in which schedule, alcohol and tobacco are not on the list. More on that later.]

This year, the DEA and Mr. President have been teasing everyone, saying, “We might just look into these medical uses, and put marijuana in the schedule two category.” (As you learned on that link you clicked, Schedule Two drugs still have a high risk of abuse, but has some legitimate medical purposes.) Most importantly, this would free up funding for legitimate medical uses of marijuana (as a Schedule One drug, this is tres difficult).

Some people got really excited, and even lied in this article about it, saying, “Guys, it’s totally going to happen; we have the inside scoop.”

Then August 1, 2016 came around and Mr. President was like, “Nah.”

To recap: marijuana is still illegal in all fifty states, and the President decided that marijuana still has no legitimate medical purpose in the United States.

Now that we understand the current situation, let’s address some of the common reasons why marijuana is still illegal in these United States. I’m not a doctor, or a scientist, or medical researcher, so I’m no expert. But I will reference as many of them as I can in my brief responses to some of the most common reasons given to legalize marijuana.


1. Alcohol is legal, and it’s way deadlier than marijuana.

The conclusion of this argument (which is rarely said out loud) is: …”so marijuana should be legal, because alcohol is worse.” This is like when you get caught hitting your little sister, and your mom yells at you, and you say, “But she called me…” and your mom doesn’t want to hear it, because her bad thing doesn’t take away your bad thing. The implied conclusion is rarely said out loud because the rebuttal is too easy: “Then we should just make alcohol illegal, too!” The legality of one harmful drug does not prove that another harmful drug should also be legal. The two may be logically inconsistent, but more on why they are treated so differently in a minute.

Dr. Elizabeth Hartney said it best, “Although alcohol and tobacco are currently legal for adults, they are both highly addictive drugs and long-term use is associated with life-threatening health effects. However, the fact that alcohol and tobacco are harmful does not in any way reduce the harms of marijuana smoking.”

Recall earlier when I told you to take note that alcohol and tobacco were not on the list of scheduled drugs? That’s because historically, alcohol and tobacco have been treated in very different ways from marijuana and other drugs. For example, Congress tried to make alcohol illegal, but it didn’t help our nation’s alcohol problem. So then they threw up their hands and said, “Fine, you states deal with this yourselves!” But don’t worry, Congress still had a way to regulate alcohol. Today, the national drinking age is twenty-one because Congress passed a law and said, “Hey, you can make your drinking age whatever you want, but if it is lower than twenty-one, we are not giving you as much money to keep your highways smooth and pretty.” Yeah, literally.

In short, yes, alcohol is deadlier than marijuana. There is no way to dispute that. But comparing this nation’s treatment of marijuana and alcohol as parallel in policy or history is way misleading. You might as well compare federal regulation of marijuana with federal regulation of raising chickens.

2. Legalizing marijuana will make this country so much money because we can tax it! 

Probs. It is difficult to find an accurate number, but, yes, Colorado has probably made hundreds of millions of dollars in tax and related revenue since legalizing recreational marijuana.

But that’s not the whole story. First, the market responds to higher and higher taxes. Initial estimates for tax revenue from legalizing marijuana way over-hyped the actual figures in the first year. And many legitimately argue that a crazy tax (like 25%: I’m looking at you, D.C.), will push many buyers to black market dealers, who won’t impose the taxes, and may be more prominent once the product is decriminalized.

Second, even if our government makes a decent revenue from regulating marijuana, experts agree that there will be corresponding increases in costs necessary to treat a growing population of marijuana users and abusers. See this graphic from the Drug Free America Foundation, which lays out details regarding the likelihood of increased use and abuse, and national costs associated with those changes.

3. Anti-legal marijuana advocates “feared that more high school aged kids would be smoking weed.… No.”

The video this quote came from didn’t give any reason why they don’t believe legal marijuana would increase use among teenagers. But since he’s in denial, I’ll lay it out here.

First, why are we so worried about teens using marijuana? Because it’s super bad and does mega damage to a teenager’s developing brain. Marijuana can negatively effect everyone’s physical and mental health, but for teenagers the consequences are magnified and multiplied. Marijuana use among teenagers increases the risk he or she will become addicted to the drug, increases the risk he or she will “suffer from depression, anxiety, psychosis, or other mental illness,” can cause permanent loss of IQ points, and can decrease a student’s performance in school and work.

In one study, “‘We found that people who began using marijuana in their teenage years and then continued to use marijuana for many years lost about eight IQ points from childhood to adulthood,’ says study author Madeline Meier, now a professor at Arizona State University, ‘whereas those who never used marijuana did not lose any IQ points.'”

Second, legalizing marijuana can lead to increased use. As Time reported, “Pot advocates try to dismiss all that [negative health risks] by pointing out that marijuana is being legalized only for adults. But as with alcohol, wider availability filters down to kids. And with pot legal for adults, the black market will likely redirect its efforts to teens, where, as cited, the damage of marijuana use is greater and more irreversible.”

I’ll admit, the studies coming out of the laboratory called Colorado have shown that marijuana use among teenagers since legalization has not increased in that state, and have followed the national trend. “A large study found that rates of cannabis use among teenagers in states that legalized medical marijuana did not increase. And since Colorado fully legalized cannabis in 2013, the early reports show that rates of cannabis consumption among teens have continued to decline, which is part of a nation-wide trend,” writes Dr. J. Wesley Boyd in Physcology Today. Those two years of data coming out of one state, however, have not convinced me.

Furthermore, “States with medical and recreational marijuana laws do see higher rates of teen consumption – they’re 27 percent more like to regularly use cannabis than minors in no-access states.” Which begs the question: are states that legalize marijuana already so approving of the drug, that the legalization would not affect overall use?

A 2004 report by the National Institute on Drug Abuse identified risk factors associated with drug use among children and adolescents, writing, “Other factors—such as drug availability, drug trafficking patterns, and beliefs that drug abuse is generally tolerated—are also risks that can influence young people to start to abuse drugs.”

The bottom line is this: if drugs are available, perceived as acceptable, and part of the social norm, teenagers are more likely to use. Given how harmful marijuana can be to teenagers, I am strongly in favor of trying to cut those risk factors by keeping marijuana illegal. And that, by the way, is the federal government’s interest as well.

Many people, including attorneys I have spoken to on this issue, believe it is none of the government’s business and people should be able to do what they want. I disagree. One of the main functions of government is to protect the public health, and this is a serious public health concern; one in which only the government can take the action necessary to protect its citizens.

-D. B. Barbi Bee



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