Current federal law puts many marijuana sellers and buyers in the position of being federal outlaws while transacting business that is, as a matter of state law, entirely legal. The Obama administration attempted to finesse this conundrum with the policy spelled out in the so-called Cole memo, in which the federal government committed itself to ignoring its own laws in states in which marijuana had been legalized; the Trump administration rescinded that policy; liberalizers have expressed some hope that the Biden administration might reinstate it. That kind of chaotic adhocracy is typical of our contemporary political dysfunction, and Congress should settle this as a matter of statute rather than having policy swing back and forth via administrative fiat every time the White House changes hands. It is the job of the lawmakers to make law, and Congress ought to do its job rather than punting to whomever happens to be in the top job at the Justice Department.
Drug abuse and drug addiction impose serious personal and social costs, as indeed does a great deal of casual drug use. We have seen this not only in the case of prohibited drugs such as marijuana but also in the case of generally legal drugs such as alcohol and some pain medications. The question is not whether we are in favor of marijuana use or against it, but rather is whether current policy is genuinely in the public interest. It isn’t. Marijuana prohibition creates a vastly profitable criminal enterprise that causes far more damage, including loss of life — at home and abroad — than marijuana consumption itself does or would even if use became more widespread. Prohibition makes petty criminals out of most Americans — the majority of Americans smoke marijuana at some point in life — and in the process acclimates both individuals and institutions to low-grade criminality. It results in needless incarceration and in criminal convictions that can severely circumscribe a person’s opportunities for advancement and prosperity. It creates opportunities for selective enforcement and prosecution. The so-called war on drugs has contributed mightily to the militarization of many local police forces, to the normalization of invasive domestic surveillance, and to heavy-handedness in policing. That is a high price to pay for a policy that is — this is worth remembering — almost entirely ineffective in preventing the widespread use of marijuana and the commerce attached to it.