On Aug. 1, New Jersey Democratic Senator Cory Booker introduced a pipe dream of a bill. The Marijuana Justice Act would amend the Controlled Substances Act, remove marijuana from its current Schedule I status, and legalize it federally (PDF). The bill, which would be retroactive, would give federal prisoners incarcerated for marijuana-related offenses the chance to challenge their imprisonment and sentencing.
And if states were found to be disproportionately arresting minorities for marijuana crimes, funding for building more jails and prisons would be withheld. There’s a lot of stick here, and not a lot of carrot, unless you realize what a mess the drug war has been, and how important a stick really is.
More than 60 percent of the country supports legalizing marijuana, up from a modest 31 percent in 2000. For people in the 18 to 34 range, support is even higher, with 77 percent in favor of recreational legalization. Nearly half of people in America have tried the drug. A previously unbelievable shift has taken place in the five years since Colorado and Washington voted for recreational weed, but Jeff Sessions runs the Department of Justice, for now, and his nightmare is a world where marijuana is for sale at the local supermarket or office vending machine.
It’s no surprise that Booker’s bill was praised by many outlets as a sign of thrilling progress. However, the assumption that it would not get far was also immediate. Hours after Booker announced the bill, Texas Republican Senator John Cornyn tweet-dubbed the idea a “big mistake.”
Some supporters remain hopeful, no matter the bill’s uphill climb. Founder of the Marijuana Majority, Tom Angell, responded via email about the popular assumption that this bill will never become law, saying “I think a real indicator will be what kind of Republican cosponsorship it gets. In particular, it will need Republicans on the Judiciary Committee urging Chairman Grassley to at least give it a hearing.” Angell also noted that Booker’s previously introduced medical marijuana bill has not gotten very far, even with bipartisan support from Senators Rand Paul and Mike Lee.
The most daring aspect of Booker’s law is that it’s not just the repeal of federal marijuana prohibition, but a cudgel for states that have been enforcing drug laws in a particularly discriminatory fashion. That makes it even less likely to pass, and the idea of using census data to analyze racially disparate enforcement of drug laws seems hard to pull off.
Though states have long passed their own bad laws, the war on drugs has always been fueled by a federal engine. It was nothing more than Richard Nixon’s cynical stab at a domestic policy that would make Middle America cheer. Subsequent presidents embraced it. However, it was under Ronald Reagan and a cheerful Congress that anything goes, including paramilitary raids, became the MO of the fight against drugs.
It’s easy for conservative opponents to criticize Booker’s bill on the grounds that it’s opposed to federalism—the bill would partially trump state’s rights and force resolution at a federal level. But the war on drugs was a federally created problem in the first place. Some of the most insidious aspects of the criminal justice system, such as asset forfeiture and inflated mandatory minimums, either sprung out of the war on drugs, or were beefed up by it.
These would not be remedied by mere state-by-state marijuana laws. And civil asset forfeiture is a lucrative business for both state and federal law enforcement, one that Sessions has only chosen to bolster. The reinstatement of the Department of Justice’s Equitable Sharing Program is a perfect example of the federal government incentivizing bad law enforcement behavior.
Some conservatives genuinely believe in allowing states to dictate their own weed policy, as a matter of principle, even when it flies in the face of their own ideals—a 2016 CBS poll indicated that 70 percent of Republicans believe state governments should determine legality, while only 44 percent personally supported legalization (PDF). But the classic state’s rights argument is also a convenient way to flout change and oppose sensible policy, while ignoring egregious issues like racially disparate incarceration—a problem that’s more severe in some states than in others (PDF). The issue is, the havoc wreaked by the war on drugs is too wide-reaching to be solved piecemeal.
And there’s the practical aspect at play, too: For states that have legalized marijuana, it’s difficult to reconcile state law with federal law, which regularly gets in the way of operations. Many recreational weed businesses, which are legal in the states they operate in, are denied access to banking. Catering to the weed industry (especially with “good people don’t smoke marijuana” Sessions in charge) creates liability for banks, but without them, fledgling business owners can’t get loans. They have to pay employees in cash—which makes it easier for employees to evade the law when tax season rolls around. And since their money can’t be stored in a bank, they have to store large amounts of cash either in their stores or homes, which essentially puts massive targets on their backs from both criminal and law enforcement threats.
With California slated to enter the recreational market fully in 2018, and other heavily populated states like Illinois eyeing the thought of legalization, access to banking will become increasingly important for the fast-growing industry. If federal law was not in direct conflict with state laws, it would be a win for business owners and would simplify operations, legitimizing the industry further.
Booker’s proposed bill wouldn’t be a win for federalism, per se, but that’s all right. The war on drugs has been viciously waged at the federal level for so long, and at such cost, that the remedy might have to come from the same beast that created it.