Never in modern history has there existed greater public support for ending the nation's nearly century-long experiment with pot prohibition and replacing it with regulation. The historic votes on Election Day in Colorado and Washington, where, for the first time ever, a majority of voters decided at the ballot box to abolish cannabis prohibition, underscore this political reality. But is the Obama administration listening? It ought to be. In Washington legalizing marijuana got the same percentage of the vote as Obama did, and in Colorado cannabis got more votes than Obama -- by a wide margin.
Americans are turning their backs on marijuana prohibition in record numbers for a variety of reasons. The ongoing enforcement of cannabis prohibition financially burdens taxpayers, encroaches upon civil liberties, engenders disrespect for the law, impedes legitimate scientific research into the plant's medicinal properties and disproportionately affects communities of color. Furthermore, the criminalization of cannabis simply doesn't work.
Despite more than 70 years of federal pot prohibition, Americans' consumption of and demand for cannabis is here to stay. Voters' passage of Amendment 64 in Colorado and Initiative 502 in Washington acknowledges this reality. These measures seek to stop ceding control of the marijuana market to untaxed criminal enterprises, and to impose new, common-sense regulations governing cannabis' personal use by adults and licensing its production. Unlike the federal government, which continues to define cannabis as an illegal commodity that is as dangerous as heroin, most voters recognize that a pragmatic regulatory framework that allows for limited, licensed production and sale of cannabis to adults but restricts use among young people best reduces the risks associated with its use or abuse.
Yet to date, the president and the Attorney General have remained largely silent regarding whether they intend to respect the will of the voters and allow these nascent laws to move forward unimpeded by federal interference. Speaking with ABC's Barbara Walters, Obama stated, "It would not make sense for us to see a top priority as going after recreational users in states that have determined that it's legal. ... We've got bigger fish to fry." But the federal government never has prioritized targeting and prosecuting minor marijuana offenders, a fact that largely renders Obama's pledge meaningless.
The far bigger issue, which remains unaddressed by the administration, is whether the federal government will take action, either legal or prosecutorial, against those engaged in broader, state-sanctioned efforts to regulate the commercial cultivation and sale of cannabis to adults. Regarding this latter question, Obama has been far more coy, stating only, "[W]hat we're going to need to have is a conversation about, how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal?"
Some congressional lawmakers are actively trying to reconcile this conflict. In the weeks following the 2012 election, a bipartisan coalition of U.S. representatives, led by Rep. Diana Degette (D-Colo.), introduced H.R. 6606, the Respect States' and Citizens' Rights Act, to prevent federal officials from interfering in Colorado's and Washington's newly enacted laws. A House Republican-sponsored effort is also anticipated. Several House members are also considering separate federal legislation to provide a blueprint for the eventual legalization and taxation of cannabis.
In the other chamber of Congress, Sen. Patrick Leahy (D-Vt.) recently announced his intent to hold hearings in the 113th Congress to discuss legislative options to ensure that the federal government does not disregard the will of Colorado and Washington voters. "One option would be to amend the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law," Leahy recently wrote in a letter to drug "czar" Gil Kerlowske. "In order to give these options full consideration, the Committee needs to understand how the administration intends to respond to the decision of the voters in Colorado and Washington."
While it's not yet apparent whether President Obama will support some or any of these options, it's clear how the public wishes the administration would respond. Most Americans believe that the feds ought to do nothing at all. According to the most recent Gallup poll, a near supermajority of citizens believes that the federal government should respect state laws in Colorado and Washington. Sixty-four percent of respondents do not believe that the Obama administration "should take steps to enforce federal anti-marijuana laws in those states." In addition, more than four out of 10 respondents who personally acknowledge opposing cannabis legalization nonetheless believe that the administration should respect state laws allowing for its legal possession, use and sale.
With public opinion solidly behind legalization, is it realistic to think that Obama's Justice Department will take action to try to nullify Colorado's and Washington's laws? Ideally the answer is "no." That said, none of the president's actions during his first term -- in particular the ongoing crackdown against medical cannabis dispensaries in various states, namely California, and the administration's rejection of an administrative petition to reschedule the substance under federal law -- indicate that he or his administration possess the political will to move forward with substantive marijuana law reform. This needs to change. Americans' dissatisfaction with the criminalization of cannabis has reached a tipping point. Calling for an end to marijuana prohibition is no longer a political liability; it is a political opportunity. The administration would be wise to seize it.