Five Decades Later: Time to End Marijuana Prohibition? – Lexology

When Congress passed the Controlled Substances Act (CSA) in 1970, it classified marijuana as a Schedule I drug, the designation for substances with high abuse potential, no currently accepted medical use in treatment and a lack of accepted safety for use under medical supervision. That classification was meant to be preliminary, not permanent, as the statute and legislative history make clear. Today, marijuana remains on Schedule I, 50 years after President Richard Nixon signed the CSA into law.

Few serious people maintain that cannabis has no medical utility or that marijuana use is life-threatening. In 1972, the CSA-funded National Commission on Marihuana and Drug Abuse (the Shafer Commission) concluded that marijuana’s potential for harm was de minimis and recommended changes to federal policy. Those recommendations were rejected, as were a series of descheduling and rescheduling petitions brought before federal rulemaking authorities in the following decades.

The response to federal rebuffs was, and continues to be, marijuana legalization at the state level. On November 3, 2020, voters in all five states with marijuana-related proposals on the ballot approved those measures, bringing the number of jurisdictions with medical and adult-use marijuana laws to 37 and 17, respectively. (This tally includes the District of Columbia and excludes U.S. territories, tribal nations and states that limit medical use to CBD.)

When California legalized medical cannabis in 1996, and Colorado and Washington legalized cannabis for adult use in 2012, U.S. Supreme Court Justice Louis Brandeis’ 1932 laboratory metaphor seemed apt. (In his dissent in New State Ice Co. v. Liebmann (1932) 285 U.S. 262, 311, he wrote: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory.”) That metaphor has now run its course.

Today, the national landscape is a

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