Hashish ban is coming to an finish – does historical past must repeat itself?

America is about to legalize marijuana at the federal level. Congress appears to have enough support to change federal law to make commercial marijuana activities legal. However, a federal mandate may not mean recreational marijuana will be available in all 50 states.

As we near the end of the US cannabis ban, it is important that we look at the history of the ban to better understand the potential impact state rights can cause, even after cannabis is nationally legal.

In 1972 the Federal Act on Controlled Substances (“CSA”) classified “marijuana” as a List I substance. This law made it illegal to grow, distribute, or possess cannabis. Prior to the signing of the CSA, the federal cannabis prevention strategy imposed a substantial tax on marijuana transfers under the Marihuana Tax Act of 1937 (“MTA”). Instead of specifically banning the cultivation, distribution, and possession of marijuana, the MTA made marijuana transactions prohibitively expensive.

Before the CSA, marijuana criminal laws were largely a creation of state law. Interestingly, the relatively conservative state of Utah was the last state to criminalize marijuana. It is ironic that as a result state legislators reversed course and lifted criminal sanctions at such a rapid pace that federal legislators are now using state repeal and reform efforts to inform proposals to legalize the federal government. For those holding points, California became the first state to legalize medical marijuana in 1996. Colorado and Washington were the first two states to legalize recreational marijuana in 2012.

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With the cannabis ban nearing its end, it’s useful to review the history of the federal repeal of the alcohol ban. The alcohol ban ended in 1933 with the repeal of the Volstead Act and the 18th Amendment, which were federal laws prohibiting the manufacture, distribution, and possession of alcohol. However, some lawmakers refused to repeal their parallel state laws criminalizing alcohol even though the ban was lifted at the federal level. The state of Mississippi remained an arid state until 1966, 33 years after the Volstead Act was repealed and its 18th amendment. To date, nearly half of the local jurisdictions prohibit the sale of liquor.

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It is important to realize that the lifting of the federal marijuana ban does not automatically entitle individuals in all fifty states to possess recreational marijuana. The constitutional doctrine of preemption stipulates that the federal government cannot require state legislators to enact identical federal laws. Therefore, a state legislature must decide to actually lift criminal penalties for the possession, distribution, and manufacture of marijuana, even if federal legalization efforts are successful.

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The federal cannabis legalization movement may not help residents of states that currently prohibit cannabis in any form unless those states take their own legalization measures. Idaho was the only state with no legalization measure in place until the end of 2020 (i.e. not even allowing positive defense due to medical necessity when in possession of ≤.03% THC, industrial hemp-derived CBD products), which shows that the move toward national legalization might be irrelevant in Idaho. Like Mississippi and alcohol, it could be years before Idaho and other politically and culturally conservative states fully legalize cannabis even after the federal cannabis ban ends.

Emily is a recognized expert on legal, regulatory and policy issues related to cannabis and has worked with a wide variety of individuals and organizations in both the public and private sectors. This article originally appeared in the Green Light Law Group and was republished with permission. You can contact Emily at info @gl-lg.com or (503) 488-5424.

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