Saachi Baldwa is a Sophomore in the College of Arts and Sciences at Georgetown University. She is studying Government and Economics.
As support for the legalization of recreational drugs continues to grow across the country, debates over its implementation and potential dangers have significantly risen in the past five years. Opponents often warn that the path to legalization doesn’t just stop at reduced arrests of users; they fear it will lead to heroin dealers opening up shops in their neighborhoods and marijuana growing in their public parks. Overall, there is a great cloud of confusion over what constitutes legalization or decriminalization and just how drastic their effects will be on our society.
Legalization is the practice of removing barriers to both the consumption and sale of a particular substance. It also includes wiping past records and terminating prison sentences for those who have been convicted of related crimes.[i] Criminal justice advocates like Senator Cory Booker point to the overwhelming amount of people imprisoned for substance-related crimes, as well as the consequences this imprisonment has for returning citizens who attempt to work, secure housing, and more.[ii] Cannabis is the substance most commonly associated with legalization, as 24 states and the District of Columbia have fully authorized recreational cannabis use, along with 14 other states legalizing medicinal cannabis use.[iii]
In 1996, California became the first state to legalize the medicinal use of marijuana under Proposition 215.[iv] The resulting California Compassionate Use Act of 1996 outlined the strict objectives of allowing “seriously ill Californians” to be prescribed marijuana for a variety of mental and physical illnesses.[v] This statute was followed by the legalization of recreational use through Proposition 64 in 2016.[vi] Nonetheless, there are still notable restrictions to this open usage, as reform efforts still acknowledge that addiction is an issue, but just not one that must necessarily always be dealt with through criminal measures. The proposition maintains that minors found with marijuana will still face consequences in the form of “a requirement to attend a drug education or counseling program and complete community service,” instead of potentially facing juvenile prison or detention.[vii] The statute includes a tax of 15% on sales of non-medicinal marijuana that is used to fund “youth programs, environmental protection, and law enforcement” while simultaneously “[reducing] criminal justice costs.”[viii] Under legalization statutes like California’s, the sale of marijuana is restricted in areas near schools, and public consumption is strictly prohibited.[ix]
In recent years, the discussion of legalization has branched beyond marijuana following new discoveries about hallucinogenic compounds. Researchers at Johns Hopkins University have found that psilocybin, a compound found in “magic mushrooms,” can be used for treatment-resistant depression in patients.[x] States like Colorado have successfully legalized mushrooms as a medical treatment at licensed facilities in response to growing public support. However, Colorado’s Proposition 122 “does not allow for the sale of psychedelic mushrooms and other 13 plant-based psychedelic substances.”[xi] As of now, compared to the sweeping legalization of marijuana in multiple states, access to psilocybin mushrooms in Colorado has a relatively narrow frame, reflecting a general reluctance to decriminalize less familiar substances on the part of Americans as a whole.
Colorado’s bill also decriminalizes public use, meaning that individuals over 21 will not be criminally punished for non-medical possession of these substances; sales are still illegal.[xii] In this way, decriminalization differs from legalization in that it continues to punish the distribution of substances while changing the ways the legal system treats substance abuse and addiction. This key nuance is often lost in the fearmongering discourse surrounding addiction and the negative externalities it has upon other citizens. Proponents of decriminalization emphasize the need to reframe addiction as a mental health, not criminal justice, issue. Rather than burning the book, decriminalization seeks more to reframe the pathways individuals suffering from addiction take once found by the police, redirecting them away from traditional incarceration practices. The legal system may see drastic drops in the volume of cases, discretion granted to prosecutors and judges who oversee these sentences, and burdens placed on public defenders should this policy continue to gain momentum or see expansion.
In fact, other decriminalization legislation pursues this exact expansion on Colorado’s mushrooms bill. Oregon is the first state to completely decriminalize all drugs under its Drug Addiction Treatment and Recovery Act (Oregon Recovery Act), enacted through a popular ballot measure.[xiii] This act designates funding from marijuana tax revenue towards Addiction Recovery Centers, community resources, mental health clinics, housing, and more to rehabilitate residents who suffer from addiction.[xiv] The theory behind this policy has been successfully implemented in European countries like Portugal; these actions are often taken to prioritize harm reduction and safe use. Proponents point specifically to reduced HIV contraction rates in decriminalized countries, as non-sterile needles are often a source of transmission.[xv]
Inspired by foreign successes, the Oregon Recovery Act reduces misdemeanor convictions that make it difficult for drug users to get back on their feet; instead, those found to possess small amounts of substances receive a civil infraction and a fine that “can be waived by calling a hotline to screen for substance use disorder.”[xvi] Critics of the bill, which was implemented in 2021, argue that statistics on overdoses and homicides have not significantly changed.[xvii] Others claim that Oregon rushed into the process without carefully transitioning between the criminal justice and rehabilitation infrastructure for the issue, leading to an ineffective start.[xviii] While successes in other countries with reduced overdoses and deaths have demonstrated that there can be a viable alternative to incarcerating drug users, the effectiveness of sweeping decriminalization in the United States is to be determined as Oregon and other states continue to invest in this alternative.
Legalization and decriminalization are reformative practices that can vary dramatically across regions, each tailored to meet the calls of citizens and the region’s struggles. Rising rates of fentanyl and opioid-led overdoses have struck close to home for many citizens once isolated from the chaos of addiction and the pursuant War on Drugs.[xix] This tragic spread has led Americans to question the system; it is evident that current practices are not entirely successful in saving lives, reducing incarceration, or cracking down on distribution. Proponents of legalization and decriminalization efforts hope to address the prevalence of addiction by not only attacking suppliers but also reducing demand through holistic, less punitive methods.
[i] Marijuana Justice Act of 2017, 131 Harv. L. Rev. 926 (2018).
[ii] Id.
[iii] Ted Van Green, Americans overwhelmingly say marijuana should be legal for medical or recreational use Pew Research Center (2022), https://www.pewresearch.org/fact-tank/2022/11/22/americans-overwhelmingly-say-marijuana-should-be-legal-for-medical-or-recreational-use.
[iv] California Compassionate Use Act of 1996, CA Health and Safety Code, §11362.5 (1996)
[v] Id.
[vi] Control, Regulate and Tax Adult Use of Marijuana Act, Proposition 64 (Cal. 2016), https://www.oag.ca.gov/system/files/initiatives/pdfs/15-0103%20(Marijuana)_ 1.pdf.
[vii] Id.
[viii] Id.
[ix] Id.
[x] Marisol Martinez, Psilocybin treatment for major depression effective for up to a year for most patients, study shows Johns Hopkins Medicine Newsroom (2022), https://www.hopkinsmedicine.org/news/newsroom/news-releases/psilocybin-treatment-for-major-depression-effective-for-up-to-a-year-for-most-patients-study-shows.
[xi] Col. Proposition 122 (2022).
[xii] Id.
[xiii] “Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative” (2020), online at https://ballotpedia.org/Oregon_Measure_110,_Drug_Decriminalization_and_Addiction_Treatment_Initiative_(2020)
[xiv] Id.
[xv] Decriminalization works, but too few countries are taking the bold step, UNAIDS (2020), https://www.unaids.org/en/resources/presscentre/featurestories/2020/march/20200303_drugs.
[xvi] Jeffrey Miron & Jacob Winter, Oregon’s Drug Decriminalization Needs to Go Further Cato.org (2022), https://www.cato.org/blog/oregons-drug-decriminalization-needs-go-further.
[xvii] Id.
[xviii] Id.
[xix] Id.
