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Legalizing a federal crime: how states could win the war over marijuana

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Even though it’s against federal law to grow, sell or possess marijuana, 13 states have recently legalized medical use of the drug. Now California is contemplating taking the next step – legalizing marijuana outright – in the hope that taxing marijuana sales could help ease the state’s latest budget crisis. Vanderbilt University Law School professor Robert Mikos, an expert on federalism issues, examined the conflict between state and federal drug laws in a new paper, “Legalizing Federal Crime: The Example of State Medical Marijuana Laws.” Mikos argues that states wield far more power over the nation’s drug policy than most recognize.

“States are under no obligation to ban drugs like marijuana, even if the federal government does so. They just can’t facilitate drug use or obstruct federal agents who are enforcing the federal ban. For example, states can refuse to arrest or punish people who sell marijuana, but they can’t distribute the drug directly,” said Mikos.

According to Mikos, lifting state prohibitions on marijuana could have a significant impact on drug use, even if the federal ban stands. Mikos estimates that as many as 400,000 people are now participating in state medical marijuana programs, in spite of the federal ban.

“Compared to the states, the federal government has very limited law enforcement capacity. It can only track down and prosecute a tiny fraction of all marijuana violations, so most people aren’t going to be deterred by federal sanctions.”

Mikos suggests that by legalizing medical use of marijuana, states may have actually helped re-shape public attitudes toward the drug.

“The use of marijuana may seem more beneficial and less dangerous or wicked simply because it’s now permitted by state law.”

Mikos says that federal drug authorities are clearly troubled by the signal they believe is being sent by state medical marijuana laws. In fact, over the past decade, the federal government has spent nearly $1.5 billion trying to convince citizens that marijuana is a dangerous and destructive drug.

Mikos warns that the federal ban may have a counter-productive and undesirable effect on state policy.

“The federal ban makes it difficult for states to supervise marijuana, for example, to make sure that only qualified patients use the drug,” said Mikos. “State supervision creates a paper trail that federal law enforcement authorities could use to track down and punish marijuana users and suppliers.”

As a result, some states do not monitor users, physicians, or suppliers to ensure they comply with state regulations.

“The lack of supervision invites abuse,” Mikos said. “But this is a price some states seem willing to pay to shield legitimate users and suppliers from federal authorities.”

A similar problem could frustrate state efforts to collect taxes on marijuana sales. One member of California’s Board of Equalization has suggested that California could collect over $1.3 billion in new tax revenue by legalizing and taxing marijuana. However, Mikos suggests this estimate is “overly optimistic.”

“As long as the federal ban remains in place, marijuana dealers have an incentive to operate in the shadows, out of the reach of both federal law enforcement agents and state tax collectors.”

The Obama administration recently suggested that the federal government won’t prosecute medical marijuana distributors that comply with state law. According to Mikos, the announcement merely acknowledged what was already clear, that “the states have won the war over medical marijuana policy.”

However, Mikos said the change in policy could have one important ramification, “States that haven’t been particularly rigorous about supervising medical marijuana in terms of requiring users to register, inspecting grow houses, and so on, will now start to do that because there’s less of a risk that the paper trail they create is going to be followed by federal law enforcement agents.”

In addition to medical marijuana, Mikos said there are several other issues that pit restrictive federal laws against permissive state legislation, including sports-related gambling, late-term abortion and various gun laws. He suggests that state lawmakers may have more room to maneuver on each of these issues than is currently recognized.

You can read Mikos’ latest research by clicking, “Legalizing Federal Crime: The Example of State Medical Marijuana Laws.”

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Media Contact: Amy Wolf, (615) 322-NEWS