Legalization: The Necessary Path Forward

Josh Pagano, D.O.

How do Joe Biden and Cory Booker differ on their policy stances on marijuana decriminalization and legalization? Which is the better policy?

Legalization of marijuana has become a major issue in the Democratic primary, inspiring the now-viral moment in which Cory Booker quipped at Joe Biden, “I thought you might have been high” when Biden announced he did not support the legalization of marijuana.

The criminalization of mental illness and addictive disorders is the major stressor affecting many stigmatized patients. Incarcerated people with substance use disorders are disproportionately poor and African American. As if suffering from addictive disorders were not difficult enough, the ramifications of resulting arrests are also debilitating. The immediate effects include job loss and homelessness, and the intermediate effects include all of the psychological consequences of incarceration — the trauma of physical violence, the fear for one’s safety, and the pressure to join gangs. Individuals leave prison having missed large portions of their family lives, with resulting damage to meaningful relationships. All of these effects compound with the long-term consequence of a criminal record that significantly limits the ability to acquire jobs or housing, and ultimately increases the risk of future violence and recidivism.

Of all illicit drugs, the one resulting in the most arrests is marijuana. Democratic candidates, Joe Biden and Cory Booker, propose different policies regarding how to address the legal status of marijuana. 

Joe Biden supports the decriminalization of the personal use of small amounts of marijuana, claiming that “The punishment should fit the crime, but I think legalization is a mistake.” Instead, he would prefer to reclassify marijuana from a Schedule I Controlled Substance (where it currently resides with Heroin and LSD) to a Schedule II Controlled Substance (listed alongside Dilaudid®, Percocet®, and Fentanyl). However, the unlawful possession of a Schedule II Controlled Substance is a misdemeanor or a felony depending on local state laws, implying that such a re-classification would likely not affect the rates of marijuana-related arrests. It is unclear how Biden will square this with his stance that marijuana should be decriminalized. 

As a point of comparison, alcohol was not always legal. The prohibition of alcohol between 1920 and 1933 initially reduced alcohol use and alcohol-related harm, but these benefits diminished over time as a black market developed to meet consumer demands. A review of arrest records indicates that prohibition had an immediate effect but no long-term impact on public intoxication. Moreover, Harvard University historian, Lisa McGirr, points out that prohibition had unduly adverse effects on African Americans, immigrants, and those with lower socioeconomic status. Law enforcement disproportionately policed these communities. Much like the war on drugs.  

Conversely, it was the legalization and regulation of alcohol, not its decriminalization, that helped America prosper. After the repeal of prohibition, the U.S. reduced criminal violence costs and accumulated billions from tax dollars, which were often earmarked for education, healthcare, addiction treatment, and prevention programs. What’s more, taxes reduce alcohol consumption, as they would similarly limit marijuana use. 

Cory Booker seeks to legalize marijuana and remove it from the Controlled Substances Act entirely. Booker has said, “It’s not enough to simply decriminalize marijuana. We must also repair the damage caused by reinvesting in those communities that have been most harmed by the War on Drugs. And we must expunge the records of those who have served their time. The end we seek is not just legalization, it’s justice.”

While those opposed to legalization argue that it would lead to increases in cannabis-related medical harms (e.g. pulmonary disease and psychosis), mere decriminalization also carries its own costs. Cannabis smokers will still primarily acquire their marijuana from unregulated and often violent drug cartels. Neighborhoods will still live in fear. Young people will still join gangs. Communities of color will still be over-represented in drug arrests. Only legalization will directly address these factors.

Upon legalization, preemptive policies can be implemented to mitigate the anticipated increase in marijuana use. With proper taxes, age restrictions, and prevention programs, society can reap the benefits of lower crime rates and less undue incarceration. To be sure, there is a cost to every solution, including legalization. However, decriminalizing marijuana will not decriminalize mental illness, and ignoring the societal cost of mass incarceration is more than we can continue to bear.  

Unfortunately, the issues of marijuana legalization and criminal justice reform were excluded from the Democratic Debates in December. As we approach the first primary votes, we can only hope that the American people will notice these omissions and take the initiative to continue this conversation. In Senator Booker’s absence, it will be up to the remaining candidates to pick up the torch and light the way toward reforming our criminal justice system.

Joshua Pagano, D.O. is a member of Physicians for Criminal Justice Reform. He is a forensic psychiatrist who specializes in competence to stand trial evaluations and the treatment of severe mental illness.

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