Legalization of Marijuana: Overview

Introduction

The production and sale of cannabis, also known as “marijuana,” has a long and complicated history in the United States. Long prized not only for its medical uses, but for hemp, a fiber derived from the same plant and used to make rope, cloth, and paper in the past, marijuana was identified as a dangerous substance in the 1930s. The Marihuana Tax Act of 1937 strictly regulated its sale, cultivation, and possession through a variety of tax duties, stamps, and other restrictions, virtually eliminating legal recreational use, and making hemp a significantly less attractive commercial product. Over the decades that followed, restrictions tightened until the plant was classed as a dangerous drug on par with narcotics, and stiff penalties were enacted for possession.

Cannabis remained outlawed on a federal level in 2024. Despite that, some states loosened restrictions on the plant beginning in the 1970s, allowing specific uses or limiting the penalties for possession of small amounts. In 2012 Colorado and Washington voters approved the legalization of cannabis for recreational use. These states regulated the plant much as they do alcohol or tobacco, with possession of up to an ounce of marijuana legal for people aged twenty-one and over, and provisions for private cultivation, provisions for commercial sales and cultivation, and penalties for operating vehicles while impaired. By 2024, thirty-eight states, four territories, and the District of Columbia had passed laws that legalized marijuana in some form, with twenty-four states, two territories, and DC legalizing adult recreational use of the plant.

As restrictions on marijuana use have loosened across the country, concerns loomed about its dangers, benefits, use, and regulation. Critics charge that marijuana is a dangerously intoxicating drug and that legalization encourages overuse and unsafe behavior. Advocates argue that the plant has numerous benefits and that it can be used safely, with appropriate regulation, while also increasing tax revenue and limiting the black market.

Understanding the Discussion

Cannabidiol (CBD): A crystalline, nonintoxicating compound found in cannabis thought to have medicinal benefits. Cannabidiol is the second-most prevalent cannabinoid in cannabis.

Drug Enforcement Administration (DEA): A US federal agency responsible for enforcing regulations against controlled substances in the United States.

Marihuana Tax Act: A law placing a prohibitive, complex tax on the sale of cannabis and effectively outlawing recreational use.

Medical marijuana: Also called medicinal marijuana, cannabis as recommended by a doctor for the treatment of a medical condition, such as cancer-related nausea, AIDS-related weight loss, or epilepsy.

Schedule I, II, III, IV, and V controlled substances: Drug Enforcement Administration (DEA) designations indicating whether the specified chemicals, drugs, or other substances have any accepted medicinal purpose and their likelihood for abuse and dependency. Those considered the riskiest and least beneficial are classified as Schedule I, while those with the lowest risk are classified as Schedule V.

Tetrahydrocannabinol (THC): The crystalline compound responsible for marijuana’s primary psychological effects.

History

The plant that produces the psychoactive compound tetrahydrocannabinol (THC), the nonintoxicating compound cannabidiol (CBD), and industrial hemp is essentially the same, though different strains have developed to emphasize various characteristics of the plant. This plant, Cannabis sativa, was widely cultivated from the seventeenth century to the nineteenth century not as a recreational drug, but as a vital, fast-growing source of material for rope and cloth. (Cannabis indica is also widely cultivated for nonindustrial uses, and there is considerable debate over whether these are the same species.) Early settlers of Virginia were required to grow hemp, and it was accepted in Pennsylvania, Virginia, and Maryland as legal tender.

Hemp began to be eclipsed by other products in the years after the US Civil War. The intoxicating and medicinal properties of the plant instead found a ready market in the booming business of patent medicines. These unregulated concoctions, which sometimes contained such substances as cocaine, opium, alcohol, arsenic, and mercury, claimed to cure myriad diseases and complaints, and were sometimes the only form of pain relief affordable to the average American. The Pure Food and Drug Act of 1906 attempted to regulate these concoctions, among other things, and required that drugs containing cannabis be labeled as such.

In the first decades of the twentieth century, marijuana use become increasingly associated with two ethnic groups who had long-standing cultural ties to the intoxicating plant. Mexican immigrants, many of whom came to the southwestern United States after the Mexican Civil War of 1910, became associated with the drug, along with immigrants from the Indian subcontinent, accustomed to the Cannabis indica strain. Mexican recreational marijuana use in particular was blamed for all sorts of violent and degenerate behavior, and the plant formerly referred to almost exclusively as cannabis began to be known by a variant of its Spanish name: marihuana. When Prohibition in the 1920s failed to bring about the elimination of alcohol, reformers turned their attention to marijuana, and the economic crisis of the Great Depression further exacerbated existing resentment and fear of the Mexican immigrants associated with the drug. Studies of dubious scientific rigor linked the drug with the increasing violence and crime once again, and by 1931, twenty-nine states had outlawed the drug. The federal government was increasingly involved in the development and enforcement of antidrug laws. After the widespread popularity of the anti-marijuana film Reefer Madness in 1936, the Marihuana Tax Act, the first national statute of its kind, set steep taxes and registration requirements for imports and medical and industrial uses. This effectively ended recreational use and hampered all other uses.

In the 1940s, there was a brief resurgence of interest in hemp for military uses, and a New York Academy of Medicine study in 1944 refuted previous claims that recreational use caused psychosis and violence, but the long war against cannabis continued. The 1950s saw increased mandatory sentencing laws and significant prison terms for possession of small amounts of the drug. In the 1960s, despite harsh laws, marijuana became very popular with counterculture groups, and sentiment began to turn again toward more lenient enforcement. In 1970, most mandatory minimum sentencing was repealed for small amounts, and the Comprehensive Drug Abuse Prevention and Control Act categorized marijuana separately from other narcotics. Some states decriminalized the drug, and penalties for recreational use were generally light.

The pendulum swing back to widespread anti-marijuana laws and harsh penalties began with the creation of the Drug Enforcement Agency (DEA) in 1973 and the backlash against the counterculture permissiveness of the previous decade. Amid rising crime, public attitudes began to shift once again, resulting in the 1980s War on Drugs. The 1986 Anti-Drug Abuse Act established mandatory sentences for drug crimes and the three-strikes policy, resulting in life sentences for repeat offenders. These policies resulted in skyrocketing incarceration rates, particularly for men of color, and in many places, having a criminal conviction on one's record could bar a formerly incarcerated individual from housing, gainful employment, educational opportunities, and more.

Despite the strong federal laws prohibiting the possession of marijuana, on November 5, 1996, California passed the Compassionate Use Act, allowing for the use of marijuana for those with a demonstrable medical need. The 1996 California law inspired other states to do the same. Over the next four years, four additional states and Washington, DC, passed laws in favor of medical marijuana.

The years between 1996 and 2012 would see a radical transformation in the way that some states treated marijuana possession and consumption. Many Americans were disappointed with the failure of the War on Drugs, with its harsh penalties and mass incarceration. Decriminalization of the drug, where possessing less than a certain amount would be a civil matter, went hand in hand with legislation allowing consumption for medical purposes. By the end of 2012, fifteen states had decriminalized possession of marijuana either through a ballot initiative or through legislation, while nineteen had passed laws allowing for some measure of medical use.

Colorado and Washington caused a nationwide uproar in 2012 when they passed legislation to legalize recreational marijuana use for adults. By early 2024, twenty-two other states, two territories, and Washington, DC, had followed suit. By that time, thirty-eight states and four territories at odds with federal law, which has classified marijuana as a Schedule I controlled substance since the early 1970s. In 2022 and 2023, however, voters in four states rejected ballot measures that would have legalized recreational use or decriminalized it.

The federal position on enforcement and legalization, meanwhile, has shifted with the political winds. In 2013 the Department of Justice (DOJ) under Democratic president Barack Obama effectively delegated enforcement to states with marijuana legalization laws but reserved the right to challenge those state laws in the future. Under Obama's successor, Republican Donald Trump, the DOJ's Marijuana Enforcement Memorandum reversed the earlier guidance, instead emphasizing federal prosecutors' discretion in enforcement priorities. However, the Republican-controlled Congress did pass the Agriculture Improvement Act of 2018 with a hemp production exemption that inadvertently created a loophole through which companies could sell cannabinoid-containing products over the counter with little oversight. During the 2020 presidential campaign, Democratic nominee Joe Biden came out in favor of decriminalization and deferring to states over whether to legalize recreational marijuana. Meanwhile, in December 2020 the US House passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which would have decriminalized and reclassified marijuana. Following the 2020 election, Biden's victory and a Democratic majority in Congress prompted speculation that the incoming elected officials might undertake reforms such as declassification or decriminalization.

As no decriminalization legislation had yet passed through Congress, in October 2022, Biden requested the Department of Health and Human Services and the attorney-general review the DEA classification of marijuana as a Schedule I controlled substance. A couple of months later, Biden formally pardoned anyone convicted at the federal level for simple marijuana possession. By late 2023, an unprecedented 70 percent of US adults backed marijuana legalization, according to Gallup polling, while a February 2024 Pew Research poll found 60 percent support.

Legalization of Marijuana Today

Banking, production, shipping, taxation, and enforcement of drug crimes in states that have legalized marijuana all remain areas of debate and concern. States have also been grappling with how to deal with past convictions and criminal records associated with a drug they have decriminalized or legalized; by 2024 more than half of the states had record-clearance legislation specific to cannabis, while eleven states, the US Virgin Islands, and DC had automatic record clearance, meaning that in most places that offered expungement, the affected individual had to petition a court and might be required to pay a processing fee to do so.

In April 2024, Attorney-General Merrick Garland proposed having the DEA reclassify marijuana as a Schedule III substance—a recognition of its medicinal applications and the first Controlled Substances Act policy change in over a half-century. This initiated budget and administrative reviews and a public comment period regarding the proposal. Advocates of the policy change noted it could facilitate clinical research and lower the tax burden on cannabis companies, making it easier to compete economically against black market rivals. Critics feared reclassification would lead to aggressive marketing, particularly toward youth; could mislead the public over the actual potency and addictiveness of the drug; and would not prevent contamination from mold, pesticides, and heavy metals. Others noted the logistical challenges involved in bringing cannabis dispensaries under proper DEA oversight. Nonetheless, even some opponents, such as former deputy DEA administrator Jack Riley, conceded that the move could help prioritize the use of federal resources toward deadlier substances, such as fentanyl.

Legalization advocates, including many congressional Democrats, meanwhile continued to pursue full declassification. In their view, reclassification to Schedule III would fail to address the mismatch between state and federal regulation or the discrepancy between how the government handles marijuana versus alcohol and tobacco, which are regulated and taxed but not as scheduled controlled substances.

Similarly, some proponents of legalization have come to criticize its implementation in places where cannabis operations have been allowed. For instance, poorly devised regulatory requirements, protracted legal battles, and difficulty accessing capital from investors or banks have contributed to ongoing inequity among cannabis entrepreneurs, even in states and cities that strove to prioritize social equity for communities badly affected by marijuana criminalization.

It thus remained unclear whether changes at the federal level would eliminate or maintain the diverse patchwork of local and state regulations across the country and whether increased or reimagined regulation could redress related societal and physical problems. What has seemed clear, however, is that the United States has been moving, jurisdiction by jurisdiction, away from punitive legislation regarding marijuana for personal use. In a February 2018 position paper, the nonprofit Drug Policy Alliance summed up the issue: “Marijuana prohibition is unique among US criminal laws—no other law is both enforced so widely and harshly yet deemed unnecessary by such a substantial portion of the population.”

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

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