In order to bypass lawmakers notably averse to risk, ballot initiatives and grassroots movements have been the catalysts behind legalization in all states thus far. It saw Oregon, Alaska, Massachusetts, Maine, Nevada, California, and even the District of Columbia following Washington and Colorado to legalize recreational cannabis, or at least decriminalize the possession of small amounts.
The point may just tip in 2018, however, that moment when it becomes impossible for lawmakers to ignore the momentum of the legalization movement anymore. Legislatures in several states are enacting laws for cannabis reform next year already, and with it, the taboos of marijuana may disappear like smoke in the breeze.
Despite keeping a watchful eye on what lawmakers hope will generate massive new streams of revenue they would rather keep from neighboring states, policymakers are still wrangling serious issues of public safety. This year already, New Jersey, Rhode Island, and Vermont made much debate of it and their governors may well receive state legislation to sign into law next year.
Although vetoed by Democratic Governor Phil Scott, Vermont’s state legislature is the only one to pass a legalization bill. With adult use and sales starting in both Massachusetts and Canada in the next few months,their neighbors may feel a compulsion to draft and implement new measures for public safety, and they may just find the courage to do so from polls indicating widespread public support.
Director of the Rocky Mountain High Intensity Drug Trafficking Agency, Tom Gorman, believes that the tipping point will come in 2018. “What I was hoping was the rest of the states would say, ‘OK, we have got Washington and we have got Colorado, let us wait and see what happens so we can make an informed decision one way or the other,’” Gorman said.
Gorman, who supports local and federal policing for drugs through his organization in Denver, explained, “Either it was not as bad as the anti-marijuana folks said it was, or, ‘My God, this is disastrous, we do not want this for our state.’” However, not everyone agrees, most notably Gorman’s longtime opponent in the fight for recreational legalization, Brian Vicente.
Vicente, a lawyer and leader in Colorado’s legalization circles, told the Washington Examiner, “I think we have cleared the tipping point. I think when California and Massachusetts came on board and legalized – I mean, California is such a massively recognized global economy and Massachusetts, this puritanical, historic state – I think those two for me signaled that it is the beginning of the end for prohibition.”
Data collected by early legalizers like Washington and Colorado will shape new developments in marijuana policy, particularly how lawmakers interpret it, how legislatures react to legalization versus ballot initiatives by citizens, and even the likelihood of the federal government involving itself. If New Jersey, Vermont, and Rhode Island legalize, then most states will share borders with legal states.
However, it is not easy to obtain a clear “before and after” image of the repercussions of legalizing marijuana. Some suggest that it could take two decades or more to get a comprehensive and clear picture, as so many other sociological factors can have significant effects on the data gathered. Some impacts may take years to show.
“What I hear from Colorado is that, they say, you need to wait a couple of years because the data sets right now are very immature and we do not really know as much as we would like to know,” said Scott Beck, a Republican and State Representative of Vermont. Due to various circumstances, the data is in many ways compromised and unreliable.
There are good reasons for Beck’s worry over “immature” data. In just one example, when the Colorado Department of Public Safety published the results of a study on legalization and its effects back in March 2016, it began with a strong warning:
“It is too early to draw any conclusions about the potential effects of marijuana legalization or commercialization on public safety, public health, or youth outcomes, and this may always be difficult due to the lack of historical data. Furthermore, the information presented here deserves cautious interpretation.” The report continued to say:
“The decreasing social stigma regarding marijuana use could lead individuals to be more likely to report use on surveys and to health workers in emergency department and poison control centers, making marijuana use appear to increase when perhaps it has not.” That is a valid point that can have a significant impact on the results of the study and how people should interpret them.
In continuation of the report, “Finally, law enforcement officials and prosecuting attorneys continue to struggle with enforcement of the complex and sometimes conflicting marijuana laws that remain. Thus, the lack of pre-commercialization data, the decreasing social stigma, and challenges to law enforcement combine to make it difficult to translate these early findings into definitive statements of outcomes.”
Four months before Colorado began legal pot sales, Dr. Larry Wolk took up post as chief medical officer and executive director for the Colorado Department of Public Health and Environment. He is in frequent contact with officials both from out of state and from other countries. He claims that data is the most important snippet of advice that he gives to all of them.
“Conceptually,” Wolk says, “Stop thinking about this as a ‘starting from zero’ – you know,if it is not legalized – to some dramatic number as a result of legalization. So recognizing, what is the base use of marijuana amongst adults and kids?” Concerns about public safety have taken two lines in Colorado: The effects on underage users and the impact of stoned drivers on the road.
The inability of current testing devices to measure marijuana impairment in any reliable way is what confounds lawmakers most, especially as breathalyzers are so effective at accurately measuring blood alcohol levels. Not only is this lack of testing kits making it difficult for law enforcement to conduct roadside analysis, it is also making it challenging to study the issue, as well.
Further complicating these issues is the idea, which many claim incorrect, that it is possible to measure drivers for marijuana impairment like alcohol. The National Highway Traffic Safety Administration released a 2017 report, which says, “Peak impairment does not occur when THC concentration in the blood is at or near peak levels.”
That report also said, “Peak THC level can occur when low impairment is measured, and high impairment can be measured when THC level is low.” The Colorado Department of Transportation released a report in January that notes traffic fatalities increased 24 percent since 2014, the same year the state made recreational pot legal.
However, that release did not even mention the word “marijuana” in it, and officials never apportioned blame to any overriding factors. That same report clarified that the data collected came during a population explosion, and it said that, “The rise in fatalities is part of a national trend. Fatalities are up nationally by about eight percent.”
According to Beck, legislators in Colorado have been unsure about how to regulate drugged driving and enforce its laws and restrictions absent tests capable of measuring THC content in the body accurately. Beck said, “Now we are basically talking about having officers doing ‘driving under the influence’ tests roadside, which is kind of a throwback to the ‘70s and ‘80s ‘walk the line, touch your nose.’”
“It is subjective,” Beck explained. “How is it going to fare in a court of law? How does an officer determine whether it is alcohol, THC, or some other substance? We have trained many people in the state to be drug recognition experts, but I do not think we have enough of them that people are confident that we can identify all these people.”
Beck worries especially that Vermont will find itself having to deal with an escalating rise in drugged drivers, regardless of whether the state decides to decriminalize marijuana or not. This is because Vermont borders Canada and Massachusetts, where marijuana is legal, and drivers may drive impaired on shared roads.
Another concern is the effects of marijuana on underage users. Those supporting legalization in Colorado cite two studies indicating no rise in teen usage after legalization. Conducted by the state, the Healthy Kids Colorado survey polled 17,000 kids. Between 2013 and 2015, the number of those consuming within the last month rose from 20 percent to 21 percent, which is on par with the national average.
Despite there being a one percent increase within a two-year period, scientists do not consider the figures “statistically significant.” In fact, Wolk explained that, “There is some corridor of variability or error when you do any kind of study. So the reason why we say not to make much of the small increase that occurred the one year, which was then actually followed by a small decrease, is that that is within the corridor of variability that researchers attribute to chance.”
The other study that analyzed teenage use of marijuana indicated a similarly small incline. However, it relied on a significantly smaller pool of study participants. Those opposing legalization, meanwhile, cite statistics collected by a hospital in Pueblo, which shows that roughly one third of all tested babies have THC present in their systems.
Back in 2008, Tom Tancredo based his presidential campaign on taking a tough approach toward immigration, but he also served as a Colorado congressperson for five terms. During the run-up to the vote in 2012, Tancredo lent both his voice and his name to radio adverts supporting legalization. He lost friends because of it, yet claims he would favor legalization all over again.
Tancredo acknowledges the importance of considering the secondary effects of marijuana legalization, however. He considers newborns with THC in their systems a classic example. In talking to the Washington Examiner, Tancredo said, I think that that should be dealt with legally, because I believe that is child endangerment and people should go to jail for that.”
“Again,” Tancredo reiterated, “I do not care what you do to yourself as an adult, but I certainly care what you do to those who are not.” However, Wolk claims there is insufficient data to conclude that mothers passing THC to their babies does any more harm, or as much harm, as those using tobacco or alcohol during their pregnancies.
Unfortunately, study is still underway to determine the effects of THC on newborns. One of the reasons for this lack of research is that the federal government labels marijuana a Schedule 1 drug, which means most laboratories are unable to acquire the stringent permissions necessary to study any part of the marijuana plant.
“We know enough to say there is not a lot in the way of short-term or acute harm if a baby is born to a THC-positive mom, but there is likely the potential that it does affect or impact the developing brain,” Wolk explained. “So, obviously, our policy statement based on all available research we have says that pregnant mothers and breastfeeding mothers should not be using marijuana, period.”
Competition and taxation are other factors to consider in 2018. Lawmakers in Rhode Island and Vermont who favor either legalizing retail or decriminalizing possession frequently suggest that some of the “inevitability” they feel about legalization mirrors the “domino theory” made popular during the Cold War. If one area falls, so does its neighbors, starting an unstoppable chain reaction.
States wishing to decriminalize instead of allowing legal commercial sales also face a “funding paradox.” If states decriminalize rather than legalize and collect tax on it, it may miss additional taxes to fund educational programs for the youth on road safety and prevention. Vermont State Representative Heidi Scheuermann, a Republican, said:
“In general, our state has no taxing capacity left to run our programs, to educate our children. Even former Governor Peter Shumlin said that a number of years ago, and that is still a fact. So, if we are going to create new needs, as a result of decriminalizing or legalizing marijuana, we are going to have to find some revenue somewhere to do that.”
Scheuermann added, “I do not know if it has to be done all at once though,” noting her dependence on a study commissioned by the governor to identify solutions and draw conclusions. Other lawmakers seem afraid to miss out. In reference to the way Colorado taxes sales of pot, micromanages every detail of distribution and cultivation, which includes barcodes for every plant grown, State Senator Joshua Miller had this to say:
“When Massachusetts goes to a tax-and-regulate structure next year, anybody who is interesting in accessing marijuana can easily go to Massachusetts. Then it becomes more of whether the revenue is going to Massachusetts or Rhode Island, and those that think it is a good idea or a bad idea have a different reality to consider.”
Miller, who is a proud Democrat, compared the potential of a tax-and-regulate structure to generate new taxes to the growth of state lotteries back in the ‘80s, or even to casino gambling in the ‘90s. When states start generating new revenues, neighboring states find it very difficult to resist following their revolutionizing footsteps.
Colorado has its own share of competitive pressures. Its marijuana revenues could start declining rapidly once other states start legalizing, which means that some states end up paying all the costs of legalization without seeing their revenue hopes come to fruition. “There are three times as many people in Los Angeles as there are in the state of Colorado,” Vicente said.
He also added that, “Now that California has legalized marijuana, I do think they are going to be taking the helm in a lot of ways.” However, the lure of taxation remains a Faustian bargain for those who have been opposing all attempts to make states more lenient toward the use and possession of marijuana. This is what Gorman had to say about it:
“There has been some extra tax money, no doubt about it. We missed the boat at what it is costing us, what are the societal costs? If you look at alcohol and tobacco and you say ‘highly taxed products,’ taxes only cover 10 to 12 percent of societal costs, that is probably not a good investment, and we do not know that yet with marijuana. We will down the road, though, and if we use illegal drugs as an example, we would have to say the odds are it is not going to be a good investment for us.”
All action that states are taking is occurring in a wide federal void. Despite the reluctance of Attorney General Jeff Sessions to liberalize cannabis laws, the Department of Justice has done very little to stop or even slow these state activities. Back in August, Sessions penned a letter to Colorado’s Democratic Governor, John Hickenlooper.
In it, Sessions asked Hickenlooper how the state was responding to reports of increasing traffic fatalities, visits to the emergency room, and rates of teenage consumption. Not only Colorado’s governor responded, however. The state’s Attorney General Cynthia Coffman, a Republican popular for joining a lawsuit against the Environmental Protection Agency’s Clean Power Plan, also responded to the letter.
Coffman and Hickenlooper defended marijuana law in the state vigorously, telling Sessions that, “When abuses and unintended consequences materialize, the state has acted quickly to address any resulting harms.” Don Murphy, director of conservative outreach for the pro-legalization lobbying group Marijuana Policy Project, says that the rapid adoption of legalization by states is giving the federal government fewer options.
“The states do not care anymore what the federal government says or does not say,” Murphy said. “And so, they are just moving along doing their own thing.” Elected federal officials appear to be ignoring the issue. After petitioning representatives on Capitol Hill from Michigan, Vermont, and Rhode Island for comment, the Washington Examiner did not get any responses.
Nonetheless, the United States citizenry will soon have a clear preview of just how far recreational legalization may go yet, and just how willing states are to challenge federal law. Voters in New Jersey, who will cast ballots next month, are likely to select a pro-legalization successor to its famous pot enemy, Governor Chris Christie.
Candidates for governor of New Jersey have made themselves notably distinct from each other. The Democratic hopeful is ready to relax the state’s marijuana laws, while the Republican candidate stands firmly opposed. Legislative obstacles appear the most comprehensive test for those supporting legalization.
If chosen senators and representatives from any of these states can make compromises to settle on a new bill, and if a state governor decides to sign such a bill into law, then those in favor of marijuana legalization believe that the decades-long fight against prohibiting the plant will come to a swift and effective end.
Nicholas Scutari, State Senator from New Jersey and a leading advocate for implementing a similar retail structure to Colorado, said that, “We are at the precipice of actually legalizing it, I believe. So, we might as well be at the head of the pack instead of at the rear, like we have been on so many other issues.”
