by Keith Stroup, NORML Legal Counsel
Among all the speeches and balloons and revelry of the recently completed Democratic National Convention — a convention that has already made history by nominating a woman for president – was a far less obvious, but important change in the Democratic Party platform. For the first time since marijuana was made illegal on the federal level in 1937, a major party platform has embraced a strategy they describe as a “reasoned pathway for future legalization.”
That’s right. While many mainstream elected officials remain skittish of endorsing or embracing potentially controversial social issues, the 2016 Democratic Party finally could no longer ignore the changing attitudes towards marijuana legalization reflected in the national polls, and evidenced by the growing number of states that have already moved in this direction.
The precise text of the history-making marijuana amendment was as follows:
“Because of conflicting laws concerning marijuana, both on the federal and state levels, we encourage the federal government to remove marijuana from its list as a Class 1 Federal Controlled Substance, providing a reasoned pathway for future legalization”
In other words, the Democrats endorsed the strategy legalizers have been following since 2012, when we first legalized marijuana in Colorado and Washington, despite the continuation of federal prohibition.
Now let’s be honest. We have all seen over the years that the national parties tend to adopt a platform favored by their candidate, which is then almost immediately ignored once the candidate is elected. The platform is a campaign tool, and it is malleable, so as not to box anyone into a position he/she is uncomfortable with.
Nonetheless, seeing the words “a reasoned pathway for future legalization” in the Democratic platform is truly empowering for those who have worked so long to try to get our state and national elected officials to embrace an end to marijuana prohibition. It provides political cover to any and all elected officials who have known all along that prohibition causes more harm than the marijuana it is intended to protect us from, but who have feared an honest position might endanger their political careers.
The Bernie Sanders Factor
We all recognize that Sen. Bernie Sanders had the strongest pro-legalization position; and that his publicizing that position during the hard-fought campaign, and fighting for those provisions during the platform debates, caused Sec. Hillary Clinton and her supporters to more to the left, first endorsing the medical use of marijuana, and most importantly, agreeing with Sanders that the states should be allowed to continue to experiment with full legalization, without interference from the federal government. That is a significant improvement over her earlier cautious statements calling for more research, and should assure us at least four more years to demonstrate to the public that legalization is an effective program with few if any unintended consequences. Thanks, Bernie, we are in your debt.
With social issues, occasionally progress comes in bold steps, especially if the courts get involved and determine that an existing policy is unconstitutional (e.g., Roe v Wade on abortion rights or Obergefell v. Hodges on gay marriages). Of course, each of these victories was preceded by decades of litigation, so they too were not exactly overnight successes. Change takes time in this country, and generally occurs in incremental steps, rather than by big steps.
But the courts have consistently refused to hold marijuana prohibition is unconstitutional (with the exception of a state decision out of Alaska back in 1975 (Ravin v State ) holding the marijuana laws were unconstitutional as applied to personal use amounts in the home). So we don’t have the luxury of designing a strategy to win this fight with one big, successful court decision. We will have to win legalization through a combination of voter initiatives in the states that offer that option, and passing legislation in the other states, a challenging task that almost assures those states will be among the last to change.
But prohibition has been in effect for 80 years, resulting in the arrest of more than 30 million Americans on marijuana charges, many serving time in prison, alienating generations of young people and severely limiting their ability to get an education and advance professionally in their chosen careers. If necessary, we can certainly spend a few more decades (and I believe it will require a decade or more to finally treat responsible marijuana smokers fairly, including ending job discrimination, unfair child care policies, and unfair DUID provisions) to repair the damage caused by prohibition.
For the first time in my lifetime, a major political party has suggested they too recognize the need to move towards legalization, and away from prohibition. It was certainly not the headline of a convention that nominated the first female candidate for president, but it surely was a wonderfully hopeful sign of things to come.
By the next quadrennial conventions, even the Republicans may have found the courage to state the obvious.