It was a curious coincidence last month, that as PBS was broadcasting the Ken Burns/Lynn Novick documentary, Prohibition, describing the Hoover Justice Department’s last-gasp crackdown on alcoholic beverages in the late 1920s, prosecutors in the Obama Justice Department were announcing a crackdown on medical marijuana in California, threatening to confiscate the property of people “involved in drug trafficking activity,” which is fedspeak for providing pot for sick people.
After nearly a decade under the Volstead Act, the utter futility of enforcing public abstinence from alcohol was evident to all but prohibition’s stakeholders – chiefly police, prosecutors and bootleggers. Despite the draconian penalties imposed by the 1926 Jones Act, which turned Volstead violations into felonies, booze remained generally available. Similarly, despite the draconian penalties of the Nixon-era Controlled Substances Act, and nearly a million arrests annually, marijuana has proven itself ineradicable, and, indeed, has become a part of our culture.
The warnings from U.S. Attorneys in California come on the heels of similar threats from their counterparts in Rhode Island, Vermont, Colorado and other states whose medical marijuana laws authorize secure, large-scale cultivation facilities, such as that contemplated in the anticipated ballot question in Massachusetts. If they make good on those threats, one can only imagine the perp walks outside the federal courthouse: plumbers, equipment suppliers, bookkeepers, state functionaries and investors in suits – all the “conspirators” it takes to bring an agricultural product safely to a large, regulated market of doctor-authorized patients.
This clash does not arise from the disparity between state and federal law. Under basic principles of federalism, both the states and the federal government may prohibit marijuana, but neither is required to. A state is under no legal compulsion to enforce federal law, and is indisputably within its rights to determine who should and should not be arrested for marijuana by state and local police.
Rather, the conflict arises from the disparity between how the two sides view reality. Sixteen states (and a majority of the voters, according to many polls) recognize that marijuana has significant medical value for some patients, and that its benefits outweigh its risks. Federal law, on the other hand, peremptorily rejects such claims as hokum, declaring that marijuana has a high potential for abuse, has no currently accepted medical use in treatment, and cannot be used safely under medical supervision.
That marijuana is dangerous and without medical value is the dogma at the heart of federal prohibition. To admit otherwise would be to confess that arresting nearly 20 million people, and spending $10 billion in the war against pot, has been a mistake of gargantuan proportions. Admitting that mistake is unthinkable. What must not be, cannot be, to paraphrase the familiar German expression.
Compassion for sick people aside, there are two other reasons to take note of medical marijuana: jobs and revenue. When the voters of Montana, population one million, legalized medical marijuana six years ago, some 1,400 new jobs were said to have been created, largely in the building trades, equipment supply and solar installations, until the feds cracked down earlier this year. The New York Times recently reported that in California, more than $100 million in new revenue has been collected from the industry by state and local tax collectors.
Everybody knows what politicians want when it comes to marijuana: to change the subject. Whether a candidate believes that states should be free to enact, implement and enforce their own medical marijuana laws, free of federal interference, would reveal much about his or her view of states’ rights generally, and provide useful differentiation from the other candidates.
Not since Prohibition has the federal government been so on the wrong side of history. Now, with the Justice Department crackdown on medical marijuana, presidential candidates and others who purport to be leaders can pick a side and defend it.
Richard M. Evans is an attorney practicing in Northampton.
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