Ask Our Experts: U.S. Federal Legalization of Cannabis
Q: Who or what is preventing cannabis from being legalized?
By John Kagia, Chief Knowledge Officer, New Frontier Data
A: A convergence of social, economic, and political forces led to the entrenchment of cannabis prohibition in the U.S. and internationally. Yet, with a dramatic shift in public opinions over the past 20 years, and a widening generational divide in public support for reform, the momentum for change is building.
New Frontier Data has been receiving an increasing amount of questions about U.S. federal legalization, curiosity coinciding with recent polling which shows historic levels of support leading up to the 2020 presidential and state elections. As nearly a dozen states consider cannabis questions on their ballots, people wonder what might be preventing federal legalization. Broadly speaking, obstacles to reform include legacy laws, institutional inertia, social conservatism, lack of visibility into the costs of prohibition, mischaracterization of cannabis consumers, and misunderstanding about the scale of the existing unregulated cannabis economy. While the relative influences of those factors vary, their collective influence perpetuates laws increasingly opposed by public opinion.
Legacy Laws: Though the 1937 Marijuana Tax Act codified stringent U.S. regulation of cannabis for the first time, it was the Controlled Substances Act of 1970 (CSA) which cemented the national war on drugs. Cannabis was included as a Schedule I substance under the CSA pending the results of the National Commission on Marihuana and Drug Abuse, a blue-ribbon commission appointed by the Nixon administration to determine how to nationally regulate cannabis. The commission’s report, “Marihuana: A Signal of Misunderstanding”, was released in 1972, and concluded that marijuana possession and small-scale distribution should be decriminalized. It also recommended that cannabis use be treated as a public health issue, not a criminal one, after finding that much of the lore about cannabis leading consumers to violence and depravity was unfounded.
Nonetheless, the Nixon administration rejected its commission’s recommendations, leaving cannabis under a Schedule I classification. Over the next decade, a large national apparatus (including the Drug Enforcement Administration) was established to prosecute cannabis offenses. Thus, the Nixon administration’s decision to classify cannabis among the country’s most dangerous illicit substances led to cannabis consumers accounting for nearly half of all drug prosecutions annually, with nearly 18 million arrests between 1995 and 2018.
Institutional Inertia: For much of the latter 20th century, being “tough on crime” has been a fundamental requisite of candidates seeking political office. Any who suggested relaxing cannabis offenses were commonly portrayed as ceding communities to drug dealers and criminals, leaving little political capital to champion reform. With prevailing political winds advocating for harsher rather than softer penalties for cannabis and other drugs, legislators elected to national office tend to hold more conservative, establishment views toward drug enforcement than do constituents whom they serve.
Now, even while two-thirds of the country express support for national legalization, patterns of institutionalized inertia remain. A decision by the Democratic Party to reject recommendations for national legalization as part of the party’s 2020 platform serves as a reminder. A 2019 Pew study found that 67% of all voters (and 78% of Democratic-leaning voters) support legalization. Despite its apparent strength as a majority consensus issue — and with 33 states and 225 million Americans now having legal access to either medical or full adult-use cannabis — party elders remain strongly disinclined to advance substantive national reform.
Prohibition has also created perverse incentives to perpetuate cannabis criminalization. From law enforcement agencies earning billions of dollars from civil asset forfeitures (cannabis-related charges accounting for most of those seizures), to publicly traded private prisons profiting from mass incarcerations, and pharmaceutical companies working to protecting their revenues from market cannibalization by cannabis-based therapeutics, legalization has met stiff opposition from well-funded, highly influential sectors of the economy which would be financially impacted by expansion of legal access.
Social Conservatism: Internationally, social conservatism plays a central role in opposition to cannabis reform. The U.S. is characterized among developed nations by religion’s playing a greater role in social life than in Canadian or European societies, and outsized influence by the church has played a role in the sustained support for aggressive prosecution of cannabis offenses. That is particularly true among the most socially conservative states, regardless of some of their having the world’s highest rates of cannabis use. Similarly, in Africa, the Middle East, and parts of Asia where religion plays dominant roles in social and civic life, the intuitional rejection of cannabis is mirrored by the society writ large.
Notably, however, as younger adults globally are becoming less religious than their parents, the role of those institutions in shaping attitudes toward cannabis and other social issues is expected to be dramatically diminished in the coming years.
Lack of Visibility into the Costs of Prohibition: The acute racial and economic divides borne out in the prosecution of cannabis offenses have meant that a large cross-section of the country has very limited exposure to the toll that cannabis prohibition takes on poor and minority communities. As previously detailed, despite similar rates of cannabis use, Blacks are nearly 4x likelier to be arrested for cannabis offenses than are Whites; in the most inequitably enforced states, the likelihood jumps to nearly 10x more likely. The inequity is not just racial, but also economic: Poorer defendants are less likely to afford legal representation, pay fees for bail or bond, or rely on the social structures or financial safety net to maintain stability of the family in the event of an arrest. For the poor, an arrest can have a cascading, lifelong impact not just on the life of a suspect, but entire families as well.
For middle-class and wealthier Americans, consequences of an arrest are rarely as severe. Examples of affluent young consumers receiving relative slaps on the wrists while poorer counterparts face aggressive prosecution are innumerable.
The Stereotyping of the Cannabis Consumer: Both government messaging and popular media have played an indelible role in depicting cannabis consumers as lazy, unmotivated failures prone to violence and criminality. In fact, based on New Frontier Data’s research of nearly 30 million regular cannabis consumers in the U.S., cannabis consumers represent the full spectrum of American society, representing all age groups, races, education levels, socioeconomic classes, and political ideologies. State-level legalization has helped create a much more inclusive view of who consumes cannabis and why, but displacing the well-entrenched stereotype of the cannabis consumer as some “other” will likely remain be a years-long effort domestically and globally.
If lack of awareness about who consumers cannabis is especially influential among lawmakers inclined to aggressively prosecute the caricatured cannabis consumer, those officials may be open to different approaches were they to understand that consumers include significant numbers of their peers, relatives, and friends.
Lack of Understanding of the scale of the Global Cannabis Economy. In 2019, New Frontier Data estimated global cannabis sales (both legal and illicit) to reach approximately $350 billion annually, on par with the activewear market, customer service sector, and online or e-learning market. With the global legal market accounting for about $20 billion (i.e., less than 6%) of that demand, the preponderance of cannabis remains in expansive illicit markets. The lack of understanding regarding the scale of the existing cannabis economy (and about more than 260 million regular cannabis consumers) persist as reasons why few governments have seriously assessed the economic impacts and opportunities which cannabis offers amid their societies.
Despite such encumbrances to legalization, change is happening quickly. Within the past five years, dozens of countries have legalized medical cannabis and industrial hemp while seeking to capitalize on the therapeutic and industrial potentialities of the plant. Furthermore, a widening gap between the views of cannabis held by younger and older adults, respectively, means that in the coming years popular pushes for broader expansion of legal access will likely grow.
Ultimately, as countries where cannabis remains illegal see their neighbors effect legal, regulated markets, the divergence between legal and prohibition-oriented markets will stimulate a broader global debate to challenge the institutionalized forces that have perpetuated cannabis prohibition globally over the past century.
The 2020 U.S. election is expected to mark another milestone for cannabis legalization. Though neither party’s candidate nor their political parties are yet ready to embrace national reform, it seems clear that the momentum of public support for the issue will force continuing and robust national debates ahead.