January, 2020: As an organization that advocates to expand the rights and opportunities of people with histories of substance use and those who have been involved in the criminal legal system, Legal Action Center supports efforts around the country and at the federal level to legalize marijuana for adult use. As New York, other states, and Congress work to reform marijuana policy, LAC urges policymakers to center reform proposals that:
- Promote a health-first, rather than punitive, approach by strengthening support for effective substance use prevention, treatment, and recovery and research;
- Begin to repair the tremendous harm to individuals and communities that have been particularly impacted by racist, overly punitive marijuana policies, and;
- Prioritize the health and safety of young people.
In federal law[i], marijuana (derived from the cannabis plant) has been classified as a Schedule I drug. Drugs categorized as Schedule I are determined to be the most dangerous with a high potential for abuse, no accepted medical treatment use, and no ability for safe use under medical supervision.[ii] This scheduling classification has prevented significant scientific research on marijuana from being conducted and has also had enormous law enforcement, criminal justice, and health consequences.
Racially disparate policing, particularly due to marijuana-related arrests, has fueled the mass incarceration rates of this era that have outraged the nation. It is undeniable that the War on Drugs and drug enforcement on both the federal and state levels have been used as an assault on Black and Latinx communities.
- Despite roughly equal usage rates, 46.9 percent of the people arrested for drug law offenses are Black or Latinx. Black people are nearly four times more likely than whites to be arrested for marijuana.[iii]
- Marijuana arrests account for over half of all drug arrests. 88 percent of people charged with a marijuana law violation were arrested for only possession.[iv]
Learnings from the past thirty years have challenged the U.S. policy response to marijuana as over half of U.S. states have moved to legalize and/or decriminalize medical and/or personal marijuana use, possession, and sale.[v] Reform of marijuana policies is necessary. As these efforts move forward around the country, we urge policymakers to:
I. Strengthen Support for Substance Use Research, and Access to Evidence-Based Prevention, and Recovery
- Expand research: Additional dollars should be appropriated to the National Institutes of Health for marijuana research. Since the current scheduling of marijuana has precluded adequate research, marijuana should be rescheduled to accommodate this foundational need. Public-private partnerships investing in research should be encouraged. Baselines in regulation setting should be identified to enable tracking and other metrics should be established.
- Fund effective prevention: Evidence-based strategies, including primary, selective and indicated prevention, and programs that intervene early, prevent youth use, build resilience, and address adverse childhood experiences (ACEs) should be supported and fully funded through federal programming (including SAMHSA, the Department of Education, the Centers for Disease Control and Prevention, and the Centers for Medicare and Medicaid Services) and state dollars. Evidence-based initiatives effective in increasing awareness of marijuana’s harmful effects on adolescents should be funded.
- Expand evidence-based treatment and recovery: Access to evidence-based SUD treatment and recovery support services for adolescents and adults should be strengthened. Efforts to improve Medicaid and private insurance coverage of SUD and MH benefits, including through additional enforcement of the federal MH/SUD parity law, should be strengthened. SUD treatment and recovery support systems should be strengthened so that people can become and remain well through the use of evidence-based strategies.
- Include public health experts: As policy is formulated, implemented and enforced, experts from the prevention, treatment and recovery support fields, young people, experts from the medical and research communities, parents, and educators should be fully included to inform this decision-making.
- Protect dollars earmarked for public health: Tax revenue generated from retail marijuana should be earmarked and allocated to the purposes that support research, prevention, treatment, recovery, diversion from law enforcement and the criminal legal system, alternatives to incarceration, and reentry programs.
II. Begin to Repair the Harm to the Black and Latinx People and Communities
- Restore civil rights: Include a retroactive provision that requires the suspension of marijuana-related sentences and automatic pardons.
- Reform parole and probation marijuana testing mandates: Once legal, immediately cease marijuana testing and violations as a condition of parole or probation.
- Expunge/seal records: Automatically expunge or seal related marijuana arrest and disposition records from state and federal criminal record databases.
- Minimize the use of criminal penalties to enforce new cannabis rules.
- Prohibit drug testing for marijuana in civil matters: Once legal, testing for marijuana as a condition of employment should be prohibited (with certain exceptions.) States should limit the child welfare consequences of a positive marijuana drug test.
- Provide economic opportunity: Limit licensing disqualifications, ensure financing opportunities for new entrepreneurs in need, and require payment of living wages within the cannabis industry.
- Ensure the availability of treatment in underserved communities: Promote greater health equity by strengthening the infrastructure and quality of SUD, mental health and physical health care services in medically underserved communities.
- Work to reconcile continued racial disparities in the criminal legal system: Even in states that have moved to marijuana legalization, there are increases in the number of arrests of Black and Latinx individuals. This suggests that continued inconsistencies exist due to policing practices and policies. Additional work to promote greater equity is needed.
- Limit neighborhood density: Balance the need to prevent the concentration of retail outlets and marketing in economically depressed neighborhoods with the need to not limit availability in ways that will drive an illegal marijuana market.
- Regulate the marijuana industry: Create a regulatory system to oversee commercial cultivation, distribution and retail sales.
III. Prioritize the Health and Safety of Young People
- Keep kids safe: Prevent accidental ingestion by children by regulating the appearance of foods containing marijuana and reducing the amount of active cannabinoid in edible products. Require child-proof packaging.
- Restrict marketing/advertising to kids: Ban images of cartoons, toys and other pictures on products containing marijuana. Preclude food products with marijuana from being sold that are designed to appeal to kids (i.e. gummies).
- Use labeling to better inform the public: Clear labeling of marijuana products can also enhance the ability of adults to identify harmful products. Require that items containing marijuana include clear warning labels like gambling, alcohol and cigarettes.
- Balance the need for strong enforcement of marijuana access policies with the risk of harmful unintended consequences: Use tax policy to keep marijuana prices high (research has shown that young people are particularly price sensitive) but ensure that prices are not so high as to cultivate an illegal marijuana market.
- Apply lessons learned: There is much to learn and consider from the failed and successful attempts to regulate the tobacco and alcohol industries. Also, lessons can be learned from states like Colorado and Washington, which were the first states to legalize marijuana sale and use.
- Sequence implementation in stages and include key stakeholders in monitoring: Carefully track the effects of these policy changes on child, and adolescent, in addition to adult, health. Include the medical and research communities, parents, educators, prevention, treatment and recovery support specialists and young people in the process of monitoring implementation, assessing policy outcomes, and follow-up decision-making.
Click here for a PDF copy of this statement including references.