Money & The EconomyOpinion

Justice Thomas Points Out the Government’s Pot Policies Don’t Even Make Sense Anymore

Supreme Court Justice Clarence Thomas signaled it may be time to end the federal government’s long-standing ban on cannabis. On Monday, the conservative jurist declared that “a prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper.”

Thomas issued his opinion in response to the Court’s decision not to hear the appeal of Colorado dispensary Standing Akimbo. What’s the case about? Unlike other businesses, those dealing in what the federal government calls “controlled substances” are prohibited from deducting ordinary and necessary business expenses, such as rent and employee salaries—one of the many laws making it difficult for marijuana-related businesses to stay afloat. Standing Akimbo is being investigated for claiming business-expense deductions disallowed by federal law (26 U.S.C. 280E).

But an underlying problem, according to Justice Thomas, is that marijuana-related regulations are a confusing morass. Although “federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana,” the government “has sent mixed signals” about how that law will be enforced. “In 2009 and 2013,” recounts Thomas,

the Department of Justice issued memorandums outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law. In 2009, Congress enabled Washington D. C.’s government to decriminalize medical marijuana under local ordinance. Moreover, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws.”

It’s understandable that pot shops such as Standing Akimbo “may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law,” Thomas wrote. “Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”

Although thirty-seven states have legalized the use of medical marijuana and eighteen have also done so for recreational use, the drug remains illegal at the federal level. Part of the problem is the Violent Crime Control and Law Enforcement Act. In 1994, as chairman of the Senate Judiciary Committee, then-Senator Joe Biden wrote much of the bill and shepherded it through Congress.

Like most regulations, the 1994 Violent Crime Act had a noble goal: reduce violent crimes, which were then on the rise. Between 1960 and 1990, the rate of violent crimes in the US nearly quadrupled. The mid-1980s crack-cocaine epidemic coincided with a more than 100 percent increase in handgun-related homicides. Unsurprisingly, there was broad bipartisan support to do something about this issue, and given the link between drugs and crime, that something, it was reasoned, had to include stiff penalties for drug offenses—not just those involving cocaine, but also that “gateway drug,” Mary Jane.

Violent crime rates began to drop in 1991, and they continued dropping after the 1994 Violent Crime Act, leading proponents to applaud its success (though others link the decline to other factors, including rising incomes). Whether or not the law achieved its intended effects, most now agree that it definitely had unintended ones. Even Biden, who campaigned for president on the promise to pardon and release all prisoners jailed for marijuana-related crimes, recognizes problems with the law.

Is there any good reason to lock people up for buying, selling, or using reefer? If smoking pot hurts anyone, it’s the person who smokes it

For one, its mandatory minimum sentencing for drug law violations exacerbated America’s mass incarceration issues. By 2008, America was home to about a quarter of all the world’s prisoners. What’s more, the law’s “three strikes, you’re out” provision has put Americans—possessing as little as 1.5 ounces of marijuana—behind bars for life. Many studies indicate that drug laws are unevenly enforced, leading to harsher penalties for a higher percentage of minorities than their white counterparts.

Meanwhile, the stigma surrounding pot has faded. Doctors prescribe it. Scientists study its effects on cancer. House moms use it to reduce anxiety. All this is legal throughout much of the country, thanks to changes at the state level. And in 2019, Biden said, “I think we should decriminalize marijuana, period. And I think everyone—anyone who has a record—should be let out of jail, their records expunged, be completely zeroed out.” Yet, tens of thousands are still in prison for marijuana-related “crimes”—some of whom have been there for decades, sentenced to life without parole.

But is there any good reason to lock people up for buying, selling, or using reefer? If smoking pot hurts anyone, it’s the person who smokes it—and even that is debated. It certainly doesn’t violate anyone’s rights. So why is it still—why was it ever—treated as a criminal offense? Even if drug usage does correlate with crime, it’s no more the case that every drug user commits crimes than it is that every person who drives a car commits a hit and run. So why criminalize an act that, in itself, violates the rights of no one? What should the government’s stance toward drugs be? Do we look back at alcohol prohibition in the 1920s and think, Wow, how wise we once were?

Justice Thomas is right that “prohibitions on marijuana may no longer be necessary or proper”—because, in fact, they never were.

As Thomas Jefferson said, “the sum of good government” is “a wise & frugal government, which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits.” In other words, as Leonard Read wrote, “Let anyone do anything, so long as his actions are peaceful; limit government to keeping the peace.” In fact, this is what the “right to life, liberty, and the pursuit of happiness” requires.

Whatever we might think of a person’s choice to use drugs, he has every right to do so, so long as he doesn’t violate the equal rights of others. “And in spite of the cunning of artful political leaders,” as Frédéric Bastiat observed, such rights “precede all human legislation, and are superior to it.” Our rights are not conditional upon time or place.

So Justice Thomas is right that “prohibitions on marijuana may no longer be necessary or proper”—because, in fact, they never were.

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