Cannabis Policy Reform in the United States by Doug McVay

8 min read

Cannabis prohibition at the federal level in the United States began with passage of the Marihuana [sic] Tax Act of 1937. Some forty years passed before some members of Congress attempted unsuccessfully to decriminalize cannabis. Also during the 1970s, eleven states officially “decriminalized” simple possession of usually up to one ounce of marijuana. In the 2006 election cycle initiatives to make marijuana offenses the lowest priority for law enforcement passed in Missoula County, MT; and Santa Cruz, Santa Barbara, and Santa Monica, California. An initiative to legalize marijuana in the state of Nevada failed by a 44 to 56 percent margin; a similar measure lost by a greater margin in 2002 (39 to 61 percent) and organizers are continuing their efforts.

Since 1969, governmental commissions as well as respected NGOs in the US, Canada, Australia, and Great Britain have endorsed at least decriminalizing marijuana. [See Table 1.]

It can certainly be argued that the case for regulating and controlling marijuana, as opposed to ceding control of the market to criminal organizations, has long been established. Illicit drug problems in the United States— from crack to methamphetamine to prescription drug abuse — have only grown. Reform is now badly overdue. Cannabis prohibition persists yet it does seem inevitable. How will national cannabis prohibition finally be overturned?

Three Forms of Persuasion

The Greek philosopher Aristotle wrote that there are three kinds of persuasion: “The first kind depends on the personal character of the speaker; the second on putting the audience into a certain frame of mind; the third on the proof, or apparent proof, provided by the words of the speech itself.” (1) It will be helpful to examine drug reform advocacy through that lens.


Prohibition supporters have successfully positioned themselves as being concerned about health, child welfare and public safety. The unfair and untrue yet inevitable implication of their positioning is that reformers must be on the opposite side of these ideas. Opponents sometimes go so far as to impugn the motives of reformers by claiming they want drugs legalized just to be able to use them even though that is patently absurd. The federally-sponsored Monitoring the Future project noted that inhalants as well as alcohol and tobacco are almost universally available (certainly for adults). They also reported in 2006 that “Marijuana is the most available illicit drug, with 85%–88% of the young adult age strata saying it would be “fairly easy” or “very easy” to get. Access generally decreases with age after age 26; but even at age 45, 70% of respondents say they can get it fairly easily.” (2)

Marijuana users also have problems with public perception if only because they break the law by using an illegal drug. The challenge for reform is to overcome these negative perceptions and establish the ethical nature of marijuana users as well as reform advocates.

One approach of dealing with these issues is to bring marijuana use into the mainstream by getting people who are basically of the mainstream to “come out of the closet.” The organization Cannabis Consumers Campaign was created for that very purpose. As they state on their website, “The goal of the Cannabis Consumers Campaign is to create public policy changes by: 1) dispelling the myths and negative stereotypes that perpetuate marijuana prohibition and all its harsh consequences and 2) providing a more positive and accurate image of adults who consume cannabis. By coming out of the closet, we demonstrate to the general public, the media, and our political leaders that pot smokers are good, responsible, contributing members of society who deserve equal status and treatment before the law and in society as a whole.” (3)

Another organization for reform which may have an even larger impact in character terms is the Interfaith Drug Policy Initiative. According to its mission statement, “The purpose for which this non-profit corporation is formed is to organize people of faith to promote drug policy reform; i.e., moving from prohibition laws toward reasonable and compassionate drug regulation, education and treatment.” (4) IDPI in its way appeals to both the emotions of kindness and pity to stir public compassion for drug users.

Frame of Mind

This sort of rhetorical approach typically involves an emotional appeal. Prohibitionists have used this approach by exploiting the public’s fear of crime, anger at drug dealers, and pity for drug addicts. Like with other open-ended wars, policymakers warn against giving up the battle lest things become even worse. Supporters of prohibition cast the law as necessary to prevent drug abuse. Yet one would be hard-pressed to prove that absolute prohibition has a significant impact on reducing abuse, let alone use rates. Recall the earlier discussion about arrests and the probability of any individual marijuana user actually being arrested.

Specifically regarding young people, use, and availability, the federally-sponsored Monitoring the Future survey of secondary school students reports: “Most 12th graders felt that they would be little affected personally by the legalization of either the sale or the use of marijuana. Three fifths (60%) of the respondents said that they would not use the drug even if it were legal to buy and use, and another 17% indicated they would use it about as often as they do now or less often. Only 6.1% said they would use it more often than they do at present while another 8.9% thought they would try it. (Eight percent said they did not know how their behavior would be affected if marijuana were legalized.)” (5)

The MTF also noted that “Overall, it is important to note that supply reduction — that is, reducing the availability of drugs — does not appear to have played as major a role as many had assumed in three of the most important downturns in illicit drug use that have occurred to date, namely, those for marijuana, cocaine, and ecstasy.” (6)

The reform group Law Enforcement Against Prohibition (LEAP) in some senses presents an emotional appeal in favor of reform. In its mission statement LEAP says that “The mission of LEAP is to reduce the multitude of unintended harmful consequences resulting from fighting the war on drugs and to lessen the incidence of death, disease, crime, and addiction by ultimately ending drug prohibition.” (7) LEAP’s speakers appeal to public concerns over crime, drug addiction, and other harms. LEAP’s rapid growth — founded in 2002 by five police officers LEAP now claims a membership of over 5,000 — is evidence of their success.


The conclusions of the National Commission on Marihuana and Drug Abuse in 1972 were based on facts and logical reasoning. The US National Research Council’s Analysis of Marijuana Policy in 1982 also concluded that prohibition was the wrong approach. A brief examination of current law enforcement data also reveals the failure of marijuana prohibition.

In 2005 the FBI estimated that US law enforcement agencies made a total of 14,094,186 arrests on all charges other than simple traffic offenses. Of those, 786,545 (5.6% of the total) were marijuana arrests, 696,074 (4.9% of the total) for simple possession. That same year, law enforcement made 603,503 arrests for all violent crimes and 1,609,327 arrests for all property offenses. (8)
A basic measure of the success of law enforcement’s efforts is the clearance rate. According to the FBI, “In the UCR Program, a law enforcement agency reports that an offense is cleared by arrest, or solved for crime reporting purposes, when all of the following three conditions have been met for at least one person: Arrested. Charged with the commission of the offense. Turned over to the court for prosecution (whether following arrest, court summons, or police notice).” They report that “Nationwide in 2005, 45.5 percent of violent crimes and 16.3 percent of property crimes were cleared by arrest or exceptional means. Of the violent crimes of murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault, murder had the highest percentage—62.1 percent—of offenses cleared.” (9)

Clearance rates have been low for quite some time: the FBI reported that in 1995 for example only 45 percent of violent crimes and 18 percent of property crimes were cleared. In that year, authorities made 15,119,800 arrests nationwide, of which 796,250 were for violent crime and 2,128,600 were for property crimes. (!0) It is also true that rates of criminal victimization were higher ten years ago: The Department of Justice reported that in 1995 there were 9,604,570 crimes of violence in the US, a rate of 44.5 per 1,000 persons or households, and 28,482,360 property crimes, a rate of 279.5 per 1,000 persons or households. By 2005, there were only an estimated 5,173,720 violent crimes, a rate of 21.2 per 1,000 persons or households, and 18,039,930 property crimes, a rate of 154.0 per 1,000 persons or households. (11)

The Substance Abuse and Mental Health Services Administration estimated in its 2005 National Survey on Drug Use and Health that 14,626,000 Americans over the age of 12 had used marijuana within the 30 days prior to the survey (past month users). There were 25,375,000 Americans aged 12 and over who admitted to using in the past year. The NSDUH figures are widely believed to under-estimate the true total. The nearly 700,000 arrests that year for marijuana possession quite an significant number especially if one considers how often a regular or monthly user technically commits the crime of possession during a year. The chance of any particular marijuana user being arrested is extremely slim. Even if a possession arrest did occur users in many states are unlikely to face jail. Even the White House Office of National Drug Control Policy asserted in 2005 that “there’s very little chance that anyone in this country, particularly a first-time offender, will be sent to prison for merely puffing a “joint.””(12)

It is simply foolish to continue pouring limited resources into a law enforcement-focused strategy when other approaches could have a real impact on reducing drug use. Among young people for example, a report by the U.S. Center on Substance Abuse Prevention found that alternatives programming which provides targeted populations with activities that are free of alcohol, tobacco, and other drugs is particularly effective among those youth at greatest risk for substance abuse and related problems. (13)

The European Union’s European Monitoring Centre on Drugs and Drug Addiction further noted that “The profiles of young cannabis users, at least in the early stages of consumption, do not differ from those of young alcohol or tobacco users. This supports the idea that universal prevention for young people should not focus on cannabis alone, but should be aimed at preventing use of alcohol and tobacco too.” (14)


Activists and advocates will have to carry the message of reform to the broader masses as well as to policymakers using all three rhetorical approaches as appropriate. National organizations such as the Drug Policy Alliance, the National Organization for Reform of Marijuana Laws, the Marijuana Policy Project, and others will have to educate the public about these issues and promote discussion of alternatives including decriminalization and regulation of marijuana. In addition these organizations will have to both encourage their supporters to get involved in the political process and encourage tacit political supporters to speak out and take public positions in favor of reform. This means supporting ballot measures and legislative moves at the state and local level in support of marijuana legalization and other reforms, such as setting marijuana offenses as the lowest law enforcement priority. At the federal level lobbying by organizations and constituents will be needed to pressure lawmakers to halt federal interference in reforms at the state and local levels as well as to enact change at the national level.

What will eventually spark a change in marijuana policy? Arguments based on facts, appeals to the emotions, and the character of those calling for repeal will all play a part. The one certainty is that reform will require persistence.

Editors Note: Doug McVay is the Director of Research for Common Sense for Drug Policy and the editor of Drug War Facts.


1) Aristotle. Rhetoric. The Internet Classics Archive (Massachusetts Institute of Technology)

(2) Johnston, L. D., O’Malley, P. M., Bachman, J. G., & Schulenberg, J. E., Monitoring the Future. National Survey Results On Drug Use, 1975–2005: Volume II, College Students and Adults Ages 19–45 (NIH Publication No. 06-5884) (Bethesda, MD: National Institute on Drug Abuse), August 2006, p. 354.

(3) The Cannabis Consumers Campaign.

(4) The Interfaith Drug Policy Initiative.

(5) Johnston, L. D., O’Malley, P. M., Bachman, J. G., & Schulenberg, J. E., Monitoring the Future National Survey Results On Drug Use, 1975–2005: Volume I, Secondary School Students (NIH Publication No. 06-5883) (Bethesda, MD: National Institute on Drug Abuse), August 2006, p. 354.

(6) Johnston, L. D., O’Malley, P. M., Bachman, J. G., & Schulenberg, J. E., Monitoring The Future National Survey Results On Drug Use, 1975–2005: Volume I, Secondary School Students (NIH Publication No. 06-5883) (Bethesda, MD: National Institute on Drug Abuse), August 2006, p. 407.

(7) Law Enforcement Against Prohibition.

(8) Crime in America: FBI Uniform Crime Reports 2005. (Washington, DC: US Dept. of Justice, 2006), Table 29.; Arrest Table: Arrests for Drug Abuse Violations.

(9) Crime in America: FBI Uniform Crime Reports 2004 (Washington, DC: US Government Printing Office, 2005), p. 263; Crime in America: FBI Uniform Crime Reports 2005 (Washington, DC: US Dept. of Justice, 2006)

(10) FBI, UCR for the US 1995 (Washington, DC: US Government Printing Office, 1996)

(11) US Dept. of Justice, Bureau of Justice Statistics, Criminal Victimization in the United States 1994 (A National Crime Victimization Survey report: NCJ-162126), May 2000. ; USDOJ, BJS, National Crime Victimization Survey, Criminal Victimization, 2005 (NCJ-214644), Sept. 2006.

(12) “Who’s Really in Prison for Marijuana?” White House Office of National Drug Control Policy, 2005.

(13) Maria Carmona and Kathryn Stewart, “A Review of Alternative Activities and Alternatives Programs in Youth-Oriented Prevention” (CSAP Technical Report 13), National Center for the Advancement of Prevention, under contract for the US Dept. of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Substance Abuse Prevention, 1996, pp. 3, 20.

(14) “Annual Report 2006: The State of the Drugs Problem in Europe,” European Monitoring Centre for Drugs and Drug Addiction (Luxembourg: Office for Official Publications of the European Communities, 2006), pp. 43–44.