The challenges of federalism continue in 2020. The evolution of pot began in 1996 according to Third Way. It and a plethora of other sources great and small refer to this as the "legalization" of marijuana. That misstatement carries with it potential risks, see Mischaracterizing Pot Again (February 2020). Despite the risks presented by the use of "legal," it is a term that is used or misused throughout the coverage of marijuana laws in America.
It is axiomatic that Marijuana is not "legal" in any state. The substance is illegal pursuant to federal law, which shall be the supreme law according to our Constitution. Across the country, states have elected not to enforce the federal law. Congress has not decriminalized it, which might be seen as encouraging or at least no longer discouraging its use but has imposed constrictions on the ability of federal law enforcement to pursue those who possess it. In effect, a strange détente has evolved that involves federal prohibition that is increasingly ignored or even hampered.
There has long been discussion and study of whether Marijuana presents a greater peril to users. Studies have striven to determine whether Marijuana is a "gateway" drug. At least some research supports that those who use Marijuana are more likely to take up other behavior including alcohol use disorder and nicotine addiction, according to the government. Notably, the government's website contends that "the majority of people who use marijuana do not go on to use other, 'harder' substances."
Thus, in an individual context, it is likely that those who use hard drugs will have already used marijuana. However, it is not demonstrable that the use of marijuana leads to or predisposes to use of the "harder substances." The argument that Marijuana is a "gateway" to harder drug use may be difficult. However, does the decriminalization of pot act as a gateway to the decriminalization of other controlled substances?
Oregon begins a new experiment in 2020 however. Overlooked for the moment perhaps, a significant outcome of the 2020 election cycle is the decision of Oregon voters to "decriminalize" possession of some (perhaps many) of those "harder substances." According to the Associated Press (AP), this "decriminalizes possession of heroin, methamphetamine, LSD, oxycodone and other hard drugs." The AP, for now, leading with "decriminalize" in this specific context. There is the chance that may yet yield to a more general "legalize" as commentators have evolved to, and adopted, with characterization of pot laws over the last 35 years.
The AP notes that Oregon was the first to "decriminalize marijuana possession" in 1973 (well before the 1996 "start" noted above). The suggestion is that while Marijuana may not be a "gateway" to the use of harder substances, the decriminalization of Marijuana may be seen by some as a gateway to the decriminalization of harder substances. The recent decision of Oregon voters means that possession of "heroin, methamphetamine, LSD, oxycodone," and more will now subject the person to a $100 fine or required attendance at "new 'addiction recovery centers.'”
The funding for these addiction centers, according to the article, will come from "tax revenue from Oregon’s legalized, regulated marijuana industry." Note the subtle shift in characterization from "decriminalize" Marijuana, to "decriminalize" "hard drugs," to "legalized" as the reference to Marijuana. To some perhaps an issue only of semantics, but perhaps words matter in some context.
The shift from criminal prosecution in Oregon is to begin thirty days from the passage of this ballot measure. Before Christmas 2020 the choice of a $100 fine or the "addiction recovery center" will be Oregon law for possession of hallucinogens, opioids, and serious stimulants. However, the law does not require that such "centers" exist until October 1, 2021. At least in the beginning, the impact may be greater state revenue from fines and diminished expense from incarceration.
There are many who see hypocrisy in the legal consumption of drugs like alcohol and nicotine, compared to other substances. They contend those substances present significant health risks and even behavioral risks. On that contention alone, they advocate for the legality of other substances such as Marijuana. There are sound grounds to believe that alcohol presents such societal risks.
The National Highway Traffic Safety Administration (NHTSA) publishes that "on average over the 10 years from 2009-2018, more than 10,000 people died every year in drunk-driving crashes." There is every chance that consumption of a legal substance like alcohol can lead to untoward and even tragic results. Similarly, there is every potential that consumption of illegal substances may similarly impair the ability to safely operate such equipment. Those who question what they perceive as an artificial distinction between these drugs (alcohol, methamphetamine, heroin, etc.) question why the law makes such distinctions.
Nicotine, by comparison, does not present the risks of harm through impairment. However, it presents the potential for health risks to the user. According to the American Heart Association, it may cause an "increase in blood pressure, heart rate, flow of blood to the heart, and a narrowing of the arteries." Certainly, alcohol can similarly result in health concerns according to alcohol.org. Thus, there is potential for personal impacts from the use of such substances, and potentially societal effects from their influences.
Some question why society has criminalized some substances and not others. There are those who debate whether health concerns can support such distinctions when various substances, legal and not, present potentials or even probabilities of personal harm. There are questions regarding whether heroin-impaired driving is a greater risk than alcohol-impaired driving. And, it seems that those discussions will continue.
That impaired driving behavior has become criminalized over recent decades. The potential risk of that behavior was recognized early in the history of automobiles, according to Safewise. But, for years, law enforcement was left to individual perceptions of impairment before the invention of the "Breathalyzer," and the establishment of presumptive impairment laws. According to Safewise, that came in 1953 followed by changes in drinking age, decreases in the presumptive impairment standard, the "blood alcohol concentration, or BAC."
There was a time when some driving under the influence (DUI) was a traffic offense, not a criminal act. That began to change in the 1970s and 1980s with more significant penalties attached to such behavior. The days of DUI tickets evolved to an era of criminalization, significant penalties, and strict enforcement. In that regard, the issue has become of impairment, not substance. Driving impaired brings serious penalties whether the cause is alcohol or drugs. Perhaps some will find solace in such impairment laws?
In the end, the law will evolve as it has. What once was a ticket offense, DUI has evolved into a criminal matter with potentially serious implications. What once was a serious criminal matter, drug possession, has evolved into a perhaps nominal civil fine with an expense less than a speeding ticket. Will the Oregon direction lead to more addiction treatment and recovery, greater state revenue, or both? Will the imprimatur of state endorsement of the possession and thus the use of "harder" substances lead to greater issues with health concerns, impairment, or both? If costs for care rise, who will be responsible for that, taxpayers generally, health insurers, workers' compensation, or individuals?
The fact is, these are interesting times in which we live. The evolution of these issues will be studied and critiqued. But, for now, we know for sure that the law continues to evolve. Some will see progress and others not. Some will see hypocrisy and others not. Some will question impacts and others not. Oregonians have decided to effectively allow possession of a myriad of substances, concluding benefits outweigh the risks. Will other states follow as they did with Marijuana? Will the federal government condone ignoring federal law as to these other controlled substances? Interesting times indeed.
