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Should Marijuana Use Be Permitted? – A Legal Analysis

Marijuana Legalization at Historic Highs

This is the first of a two-part series of blogs on marijuana use. Given that an increasing number of states now permit its use for both medical and recreational use, it is a good time to look at both the legal and ethical issues whether the use of marijuana is (or should be) permissible and under what circumstances. In this blog, I will address the legal issues. I’ll look at the ethical issues in my next blog.

One of the more controversial areas in society is whether marijuana use should be permitted from a legal perspective. Twenty-nine states and the District of Columbia allow marijuana use for medical purposes. Of these states, eight and D.C. also permit marijuana use for recreational purposes. Yet, twenty-three believe banning the use of marijuana even for medical purposes is legally the right course of action. A decision that many Americans face is the choice of whether to use marijuana even if it is prohibited under the law.

Marijuana use in America is at historical highs. A 2016 poll taken by Pew Research Center shows that the share of Americans who favor legalizing the use of marijuana is at 57% for adults; 37% say it should be illegal. A decade before, opinion on legalizing marijuana was nearly the reverse – just 32% favor legalization, while 60% were opposed.

Young adults have disproportionately driven the shift toward public support with Millennials (those ages 18 to 35 in 2016) more than twice as likely to support legalization of marijuana as they were in 2006 (71% in 2016, up from 34% in 2006), and are significantly more likely to support legalization than other generations. Support has increased among members of Generation X and Baby Boomers (ages 36-51 and 52-70 in 2016, respectively). More than half of Gen Xers (57%) support legalization, up from just 21% in 1990. A majority of Boomers (56%) also support legalization, an increase from just 17% in 1990.

The dramatic change in support for the legalization of marijuana illustrates the impact of changing societal mores on what is perceived to be good or bad behavior; right or wrong action. It also illustrates a change in the ethical calculation of whether marijuana should be completely banned, banned for non-medical purposes, or allowed for both medical and recreational use. An ethical analysis helps us to understand the intersection between one’s right to choose and what is right for the user and society. I’ll address these issues in my next blog. They are important considerations because even though we may the right to use marijuana – for recreational uses and/or medical purposes – that does not mean it is the right thing to do.

Seventy-one percent of young adults and Millennials support marijuana use. Yet, many of the supporters live in states where marijuana use is completely banned. Does this mean a large portion of marijuana supporters place individual freedom and choice above the law? Perhaps, although many believe marijuana use is not harmful or addictive. We hear all kinds of reasons to legalize it, in addition to its medical uses. Here are a few:

  • Marijuana use is less harmful than cigarette smoking and alcohol use.

  • Legalization means we won’t have to spend so much public resources on those in jail for marijuana use.

  • Marijuana use does not affect productivity in the workplace.

  • Legalization would help spur the economy through additional jobs and taxable revenues.

  • There are no facts to support marijuana use will lead to the use of more harmful drugs; it is not a gateway drug.

On the other hand, critics contend regular use of marijuana can negatively affect productivity by stifling one’s drive and work ethic. Many contend that while frequent marijuana use may not be physically addictive, it can be mentally and socially addictive and lead to the abuse of hard-core drugs. In that sense, it may ultimately contribute to a higher crime rate. Some contend that legalizing marijuana use can alter one’s mind by reducing the amount of white nervous tissue with the effect that users may suffer short term memory loss which can eventually lead to Alzheimer disease.

Here are my thoughts on legalization. We cannot dismiss the possibility that marijuana use can have long-term adverse effects on one’s body. Studies are needed to help make that determination. That does not mean we should ban completely marijuana use in states that have not as yet made it legal? It simply means those states now permitting it should serve as a testing ground by monitoring its experiences. These effects can then go into each state’s decision whether to legalize it.

One of the biggest effects of marijuana being illegal is people get sent to jail for using it. Absent evidence to the contrary, marijuana use should be “de-criminalized.” Decriminalization means that the state has enacted a law that imposes penalties other than jail time for possession of marijuana, at a minimum, for a first offense. Thirteen states have decriminalized simple possession of marijuana. Many of the decriminalization states impose a civil fine, which avoids the life-altering collateral consequences a criminal record carries. Decriminalization laws avoid imposing harsh punishments for possessing a substance that is, arguably, safer than alcohol, while freeing up law enforcement to focus on serious crimes.

A useful perspective on the legalization of marijuana is “the greater good.” This is where legalization gets murky. How are we to define the greater good? How can we go about analyzing the efficacy of permitting marijuana use – for medicinal purposes? – for recreational purposes? – in both cases?

These are not easy questions to answer and opinions vary, so I will analyze the ethical dimension of marijuana use in next week’s blog.

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