The marijuana wars are entering a new phase. The first phase, over whether or not to legalize the recreational use of cannabis, is over. The partisans of legalization have won the battle for public opinion. Soon, I suspect, marijuana legalization will be entrenched in federal law. At this point, to fight against legalization is to fight against the inevitable. The only question now is what form America’s legal marijuana markets will take. Will they be dominated by for-profit business enterprises with a vested interest in promoting binge consumption? Or will they be designed to minimize the very real harms caused by cannabis dependence, even if that means minting fewer marijuana millionaires? I fear that the burgeoning cannabis industry will win out—but their victory is not yet assured.
Why am I so convinced that legalization is a fait accompli? In short, the industry’s opponents have proven spectacularly incompetent. In January, the Justice Department issued new guidance on its marijuana enforcement efforts, reversing an Obama-era policy that, in essence, gave state governments wide berth to regulate marijuana policy as they saw fit. Attorney General Jeff Sessions has long opposed marijuana legalization, so this move was not entirely surprising. What Sessions failed to reckon with, however, is that the legalization of medical marijuana in several U.S. states, and the subsequent legalization of marijuana’s recreational use in a handful of others, had already created facts on the ground. He wasn’t just targeting a handful of scofflaws. Rather, he had in his sights a large and growing universe of growers and distributors, who had the sympathetic ear of state and local officials. Nor had the attorney general evinced the slightest concern about the role the criminalization of marijuana had played in alienating millions of Americans from the criminal-justice system, a grave threat to its legitimacy. Had Sessions pursued a more measured approach, with a narrower focus on limiting the role of the profit motive, as the drug-policy researcher Jonathan Caulkins recommended in National Review, he would have been on firmer ground, both substantively and politically. Instead, he stumbled into a battle he had no hope of winning, not least because his boss, President Donald Trump, had already made it clear that he had no objection to the legalization of marijuana at the state level.