Throughout the battle for marijuana decriminalization, medicalization, and legalization, we have always faced one enduring roadblock: marijuana is a federally prohibited Schedule 1 drug. No matter what any city, county, district, or state does to reduce marijuana penalties or legalize its possession and cultivation, possession of any amount of marijuana is a federal misdemeanor with a year in jail possible and cultivation of even one plant is a federal felony with five years and a quarter million dollar fine possible.
But could federal marijuana prohibition actually, in some respects, be a good thing?
Certainly it isn’t for anyone involved in a federal prosecution who was obeying their state marijuana laws, like the recent defendants in the Kettle Falls Five case or any of the dispensaries facing criminal procedings filed by rogue US attorneys.
However, when it comes to drug prosecutions, the feds don’t really make many of the arrests; the states do. In 2013, the DEA made 30,688 drug arrests out of 1,501,043 drug arrests total that year. That’s just 2 percent of all drug arrests. DEA doesn’t break down their arrests by drug, but it’s highly likely they make an even smaller proportion of all marijuana arrests. If you want to protect cannabis consumers from arrest, changing local and state laws are a more efficient to do that.
What makes federal prohibition a good thing is two-fold. It hinders the corporatization of the emerging marijuana industry and it fosters differentiation in marijuana laws that lead to competition and improvement of legalization.
If there’s one fear that unites the prohibitionists and the legalizers, it’s the specter of The Next Big Tobacco. For prohibitionists, it’s our marijuana businesses that they fear growing to enormous proportions, cannily advertising to youth and addicting as many customers as possible. For legalizers, it’s our marijuana businesses being overwhelmed by tobacco corporations that already have the infrastructure to mass-market burned-plant delivery systems.
With marijuana in Schedule 1, however, there is no way Big Tobacco can get involved without risking another trip to federal court, where it hasn’t fared well in the past couple of decades. It’s much less risky for them to keep expanding into international markets and developing the e-cigarette market domestically.
It helps our developing state enterprises as well. The first companies to get rich in Colorado or Washington can’t expand their operations across state lines. New businesses will develop in Oregon and Alaska and the four legal states keep developing their own market leaders, none of which can develop much larger than their state market will allow.
That also fosters the competition that will help marijuana legalization become refined and improved as it passes in future states. How will Washington State adjust their high tax rates once Oregon begins moving $200 ounces with just $35 in tax? How will Colorado adjust as pot-friendly skiers realize there’s decent skiing in Oregon and some scenic ocean beaches and no huge marijuana taxes? Already, Oregon’s inclusion of home grow rights is leading Washington legislators to propose granting that right to their adult consumers.
Federal Schedule I marijuana also hinders research into cannabis’ medicinal effects and this absolutely impacts patients across the country. However, that Schedule I also means that Big Pharma has been unable to commoditize medical marijuana. It’s forced millions of patients and growers in each medical marijuana state to engage in their own research and development, perhaps leading to greater genetic diversity and a wider range of application than if Big Pharma were focused only on getting the most profitable standardized cannabinoid preparations through the rigorous FDA approval process.
There’s no doubt in my mind that eventually, the federal government will relent and move cannabis down into Schedule III. If I were betting, I’d say it happens in 2019, depending on whether California passes marijuana legalization. At least, I hope California passes legalization in 2016 and is allowed to grow its own state-level marijuana business behemoths for a few years before Schedule I falls. California’s massive market leaders and smaller state leaders with years of experience should then be able to hold their own against any incursions from Big Tobacco.