I’ve been in the weed game a long time. Not as long as some, but long enough to remember a time when our rallying cry was simple: stop locking people up for weed. Of course, underneath that simple statement is a complex history of racism and xenophobia that fueled prohibition and kept cannabis illegal despite no evidence of significant harms from use. And while all of us knew that developing a sensible and constructive regulatory system for cannabis was going to be tough, it was never a reason to delay the elimination of criminal penalties.
Now, twenty years later, the conflation of the concepts of “legalization” and “regulation” has endangered the very mission we set out to accomplish…to stop people from getting locked up for weed. Lately, I have seen an increase in sentiment from the cannabis community that “legalization is a bad idea”, that “legalization harms small businesses” and even the occasional “legalization is worse that prohibition for people who consume cannabis”. If you think prohibitionists are not aware of these comments or are not using them to convince jurisdictions still upholding prohibition in parts of the country that legalization is a bad move, then you are wrong. So, here is the difference between legalization and regulation. I am hopeful that we can start using the right terminology, before we delay the end of prohibition in an effort to lament and change a poor business environment.
Legalization refers to removing the criminal penalties for an activity. Legalization does not include taxes or business licenses as legalization is about one thing, whether a specific activity is viewed as a crime in the eyes of the law. Prop. 215 in California did not legalize cannabis, but it did provide an exception to the current criminal status of cannabis by allowing a defendant to claim medical necessity in court. Prop. 64 in California actually legalized cannabis by removing criminal penalties in the CA criminal code. This included not only criminal penalties for possession but also for sales (save for a few qualifying conditions like sales to youth). Some of the criminal penalties were reduced from felonies to misdemeanors. And many people who supported Prop. 64 did so not because they wanted to buy cannabis in a dispensary, but because of the impact of the criminalization of cannabis. Decriminalization removes criminal penalties for personal possession and use and the low level social sharing of the plant, but maintains them for most sales and manufacturing, and does not establish a licensed system for the production, testing and sales of cannabis. Legalization is a good thing and many states still need to get there and quickly, as the impacts of criminal justice involvement are far reaching. What people do NOT like about how legalization rolls out, is the inevitable regulation that comes next.
Regulation is what happens after a jurisdiction (be it state or locality) decides that the criminal penalties for an activity no longer apply. If consuming cannabis is no longer a crime, how do we regulate sales and consumption? Under prohibition there is no regulation, only punishment (which is why the term “drug control” is a fallacy). Once prohibition is over, the regulation piece usually takes on the form of how the locality regulates other commerce, but with an added layer of Reefer Madness. Take California and Oklahoma for example. All one has to do is look at the different regulatory approaches these states take to other commerce to predict how they would handle cannabis. Unsurprisingly, Oklahoma took a hands off, free market, every man/women for themselves approach while California instituted high taxes, onerous fees and maintained a tight level of control at the local level. Overall, the regulation of legal cannabis has been a disaster. Decades of propaganda has prevented logical policy and influenced everything from tax rates to packaging requirements leaving a patch work of failed policy each in the image of the state that controls it.
Words matter. And as someone who has worked to de-stigmatize and move legalization forward, I am asking those who care about this movement to support legalization always and completely. We will disagree about proper regulations and, if alcohol is any indication, will spend the next 100 years trying to create the perfect set of cannabis regulations. But legalization needs to happen now, today. And, in America, the idea of legalization with no subsequent regulation is unlikely to happen. If you argue against legalization on the premise that you don’t like the regulation, you are doing the movement a disservice.
