“LEGAL Colorado Marijuana Grow” by Brett Levin Photography is licensed under CC BY 2.0.
Theron Anderson, Associate Member, University of Cincinnati Law Review
As the country matures, the views on marijuana among the states have changed. Over a fifth of the states have taken the initiative to relax the outright ban on marijuana. Discussions of marijuana usually fall within the topics of medical or recreational use. This blog will discuss the topic of recreational use.
Changing policy on marijuana has raised issues of how to deal with the effects of the previous system. Importantly, the change of laws in states that decriminalized marijuana has pushed them to handle the prior marijuana convictions for offenders to the old policy. However, states wishing to help prior marijuana offenders may run into roadblocks because of the Constitution and recent Supreme Court decisions. When interpreting the Constitution, the Supremacy Clause shows the federal government’s authority over this topic. So how long will this federal government acquiesce last?
II. Laws Governing Recreational Marijuana
Since the turn of the century, federal and state views on the use of recreational marijuana have slowly diverged. The federal view on marijuana, in general, has been steadfast since 1930. This view is materialized in the Controlled Substances Act (“CSA”). Under the CSA, “it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Marijuana fell within the grasp of this legislation when it was labelled a “Schedule I controlled substance.” A Schedule I controlled substance is a drug or substance that “has a high potential for abuse,” “has no currently accepted medical use in treatment in the United States,” and has no “accepted safety for use . . . under medical supervision.”
The Supreme Court recently strengthened the federal government control over recreational marijuana use in the most recent attack on the validity of the CSA in Gonzales v. Raich. The Court ruled that Congress has the “power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” This authority is given to Congress through the Commerce Clause of the Constitution and the Court ruled that marijuana use fit within that “class of activities.”
Despite this resolute stance by the federal government, the states have taken the matter into their own hands. In the past ten years, eleven states and Washington, D.C., have went against the federal view and legalized marijuana for recreational use. The list of states is comprised of Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington. These about-faces from the federal legislation were mostly implemented through ballot initiatives by the state population, and a couple through state legislation.
III. Effects of Past Marijuana Convictions
In states where the recreational use of marijuana is now legal, states are faced with how to deal with prior convictions from the past laws prohibiting the activity. The effects of marijuana convictions on the future lives of the offenders is striking. Those convicted by marijuana laws of the states’ old regime struggle with finding adequate housing as well as a job to finance that housing. In the state of Vermont, a jurisdiction that permits the recreational use of marijuana, Glyn Wilkinson, convicted twice for his marijuana activity, has found his past marijuana convictions were roadblocks to his search for jobs across the border in Canada and restricted his constitutional right to bear arms. These burdens have encouraged some states to take action.
IV. State’s Reaction
Illinois was one of the first states to take initiative to set up a system to cure the burdens created by past convictions relating to marijuana. In the Cannabis Regulation and Tax Act passed by Illinois, lawmakers who legalized the possession and commercial sale of marijuana included a “sweeping criminal justice component.” The purpose of this bill was to “expunge[e] the records of potentially hundreds of thousands Illinois residents who have previously been convicted of possessing marijuana under previous laws.” The governor labeled the bill “the most equity-centric approach in the nation.”
The remarks of the Illinois governor are not hyperbolic. Other states have wrestled with the idea of a system for dealing with the prior convictions of succeeded marijuana laws, but a result mirroring Illinois has not been reached. For example, in California’s legislation, the expungement or reduction of old convictions was allowed, but there was not an adequate system in place to effectuate that end. Likewise, in Colorado legislation, the past convictions could be sealed, but not erased. A similar bill was passed in Oregon.
The initiative by the states to legalize recreational marijuana and cure past convictions may be good news to some, but the discrepancy between federal and state law raise significant questions due to the constitutional pillar establishing the Constitution as the “supreme Law of the Land.” The discrepancy is cured through modern day federal acquiescence to states’ stance on marijuana legalization as long as the individuals do not move their activity across state lines. The federal acquiescence is evidenced through the congressional prohibition on using funds to prevent states from implementing marijuana laws of their own.
What would happen if the federal government decided to cease this acquiescence and end this push for the legalization of marijuana and equitable relief for prior convictions? Federal law would be the likely victor against the will of the states. As the Court stated in Gonzales v. Raich: “[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.”
A quick rebut by the states to the Court’s statement could be, “we have rights too,” and, “what about the Tenth Amendment?” The states would be correct that the tenth amendment does give them some rights, but not under these circumstances. The Tenth Amendment states “[t]he powers not delegated to the United States, nor prohibited by [the Constitution] to the States, are reserved to the States respectively, or to the people.” However, the portion of the amendment that gives the states the short stick regarding marijuana legalization is “powers not delegated to the United States.” In Gonzales v. Raich, the Court ruled Congress was within their delegated power under the Commerce Clause when regulating the activity of marijuana and that “state action cannot circumscribe Congress’ plenary commerce power.” Thus, The Supreme Court, through the Commerce Clause, has delegated marijuana regulation to the federal government, if they so choose to use it.
While the states have made great strides to create legislation that better reflects the current views of their residents and reduce the effects caused by the prior system, the issue does not correctly fit within the authority delegated to it by the constitutional framework. It remains a question of whether the federal government will continue to stand on the sideline while these state discussions continue, and if it doesn’t, how long until it asserts its rightful authority?
David Jordan, What happens to old marijuana convictions in states where it’s now legal? (June 22, 2018), https://www.boston.com/news/politics/2018/06/22/marijuana-legalization-convictions.
U.S. Const.art. VI, cl. 2.
FindLaw legal writers and editors, Federal Marijuana Laws, https://criminal.findlaw.com/criminal-charges/federal-marijuana-laws.html.
21 U.S.C. § 841(a)(1) (1970).
Gonzales v. Raich, 545 U.S. 1 (2005).
Id. at 17.
Skye Gould, Illinois just became the first state to legalize marijuana sales through the legislature — here are all the states where marijuana is legal, June 25, 2019, https://www.businessinsider.com/legal-marijuana-states-2018-1.
Jordan, supra note 1.
Gould, supra note 10, 410 Ill. Comp. Stat. 705/10 (2019).
Jordan, supra note 1.
U.S. Const.art. VI, cl. 2.
Gould, supranote 8.
Gonzales v. Raich, 545 U.S. 1, 29 (2005).
U.S. Const. amend. X.
See Gonzales, 545 U.S. at 29.