Repeal: Fixing Our Government’s Control Over Cannabis


American History Blog

By Anthony Martinelli
Sensible Washington
There are many who agree that cannabis prohibition is a failure; there are fewer who agree what to do about it.
Whether through a harshly regulated and heavily taxed system, or whether through one that more closely aligns cannabis with, say, tea leaf, there are many thoughts on how we should legalize cannabis. This is a conversation more than worth having.
When having this conversation, one thing must always be taken into consideration: cannabis doesn’t belong on a state or federal list of controlled substances, and work should be made to remove it from such — regardless of the accompanying regulation or taxation system.

Anything short of this won’t bring meaningful reform, nor will it bring lasting protection to cannabis consumers.
There are a number of reasons for this, all aligned directly with current legal realities, also noting that state-wide reform will need to take place before a federal end to prohibition.


Any regulation and taxation of cannabis on a state level is illegal, and would create a direct conflict with our federal Controlled Substances Act, allowing our government to federally preempt it (render it invalid in court) if they so choose.
However, the federal government has no legal authority to reinstate state criminal sanctions. In layman’s terms: if a state decides to remove cannabis from their list of controlled substances, the federal government cannot alter this, nor can they add cannabis back to this list.
This is vitally important, and exemplifies the necessity to remove cannabis entirely from state lists of controlled substances, even as we continue working towards a federal change. And in fact, this may be one of the only ways — before a full federal removal — for a state to have regulation and taxation not removed by the feds.
This is because with attached or ensuing regulations, the federal government would have two choices in the instance of a state-wide repeal of cannabis prohibition. They could:
• Allow the regulations to stick, permitting the state to continue with their own cannabis policies, including a taxation and business licensing system; or
• Federally preempt the regulation/taxation system (which they would have legal authority to do), allowing the state to continue with an entirely unregulated, yet completely legal cannabis policy. In this instance, since it’s not a controlled substance on the state level, the state would continue forth with no legal penalties for cannabis related offenses (besides current DUI statutes and prohibitions on use by minors).

Anthony Martinelli
Anthony Martinelli of marijuana legalization group Sensible Washington wrote this piece for Toke of the Town

The government’s inevitable but irrational fear of this unregulated, yet technically legal market may be the one way that the federal government would allow recreational cannabis regulations on a state level. Even if they decide to follow route number two, this would still bring effective and immediate change, as the percentage of those arrested for cannabis [PDF] in our country by local law enforcement (rather than federal agents) is consistently in the high 90s, oftentimes around 99 percent.
This is why we must vigorously work towards this type of reform on the state level. There are organizations working towards this currently, such as the Repeal Cannabis Prohibition Act in California, Sensible Washington in Washington state, Show-Me Cannabis Regulation in Missouri and others throughout the country.
When setting up future reform efforts, the community will continue to debate specific regulations, calculate what might work best, what will gain the most votes, etc. However, we should all be clear that, as with alcohol Prohibition, repeal (removal) is the underlying answer.
On a federal level, this is also true. Though clearly this may take some time, anything less is unacceptable. Even if rescheduled to the bottom of the list (at Schedule IV or V), cannabis would still be alongside the likes of drugs such as Codeine® and Valium®, and a war would continue to be waged against recreational consumers.
This makes no sense.
Any notion that cannabis prohibition can be a success is pure fantasy. As the public increasingly realizes this, we must begin to uproot prohibition at its core. This means removing the control that allows our government to punish our decision to use this non-lethal, vastly beneficial plant. 
This means repealing marijuana prohibition for adults.