John Sweeney

The News Journal

The introduction of House Bill 371 caught some people by surprise. They simply were not paying attention. Here was a bill before the General Assembly that would decriminalize marijuana in Delaware. Suddenly, Delaware was in line with a variety of other states, all of them pushing against long-established laws restricting cannabis use.

No one should have been surprised. Public opinion is swinging away from restrictions on pot. Slowly, state by state, marijuana laws are changing. It is a move similar to what happened to marriage laws. Marijuana advocates are waging what one critic called an "island-hopping campaign," going state by state, pressing for reduced penalties or outright legalization for pot in simultaneous battles across the nation.

However, unlike the same-sex marriage campaign, the battle for lifting restrictions on marijuana has been short on discussion and background. After all, no matter what their views on same-sex relationships, most people have a solid idea of what a marriage is. Few of us, however, have bothered to think what Delaware would be like if marijuana became a legal substance.

Nobody asks, "And then what?"

"The standard framing of the cannabis legalization debate is simple: either you're for it or you're against it," Mark Kleiman, a professor of public policy at UCLA, said in a Washington Monthly article recently. "Setting up the debate that way tempts proponents of legalization to deny all risks, while supporters of the status quo deny how bad the current situation is. Both sides deny the unknown."

There are plenty of "unknowns" to go around.

The first is political.

Support and opposition to these changes seem to mirror the same-sex marriage divisions. Older voters tend to be against the change, while younger voters are for it. Red states tend to oppose both same-sex marriage and the decriminalization, let alone legalization, of marijuana. Blue states tend to favor both ideas. These are tendencies. Views are often based on an individual's experiences and those of family and friends.

In 2012, voters in the states of Washington and Colorado approved recreational use of marijuana. Delaware and 21 other states allow marijuana for medicinal use. In August, the U.S. Department of Justice advised the top law enforcement officer in each state that the federal government would not try to block laws decriminalizing marijuana or allowing its medicinal use.

Now states all over the country are considering decriminalization. Alaska, Arizona, California, Nevada and Oregon might have out-and-out legalization on their ballots. More states are likely to follow.

What happens next?

Here is where it gets sticky.

The federal Controlled Substances Act forbids both medical and recreational use of marijuana. The Obama administration said it would not interfere with state laws.

However, do not overlook that red state-blue state division. The Obama Department of Justice can safely be put in the blue category. What happens if a red-state president is elected? What will be the federal policy then?

"Legal nightmare" would be an apt way of describing what would happen next.

However, the federal government is unlikely to change the Controlled Substances Act because of that very same red state-blue state division.

Delaware's House Bill 371, as rewritten, would decriminalize marijuana use. It would not legalize marijuana even in the unlikely event of it passing this year. HB 371 would allow an individual to possess an ounce of leaf marijuana for personal use. Anyone caught smoking in public would be given a small civil fine. Sales and age restrictions would remain in effect. However, the threat of a criminal record for smoking in private would disappear.

Many people think this makes sense. They do not want to see anyone get a criminal record for smoking a joint. Here you will see support from young and old, liberal and conservative. These people tend to believe that enforcement of the current laws is a waste of time and resources. That support, however, does not necessarily translate into support for legalization.

Therefore, before marijuana is legalized, the movement's supporters have to move a greater portion of the public than they currently suspect.

Another unknown is medical.

Most of us accept the headlines that marijuana is beneficial for a variety of ailments. None of us wants to see anyone suffer, so we automatically agree with authorizing marijuana to relieve that pain.

Few of us, however, stop to ask how effective marijuana as a medicine is.

If we did, we might find that many medical authorities say it is not very effective.

Delaware's list of diseases, disorders and conditions that marijuana can be used for is relatively short. The marijuana would be used mostly to relieve pain or spasms. These uses make sense.

However, other states allow marijuana treatments for dozens of diseases.

Medical science does not always back up those claims. For example, some states include glaucoma as qualifying for treatment. However, according to The New York Times, the American Glaucoma Society says marijuana is an impractical way to treat the disease. The state ophthalmological society campaigned to get glaucoma removed from New York's new medical marijuana law.

Also on the medical unknown list is whether recreational use over a long period of time would be harmful?

The evidence is mixed. Remember Professor Kleiman's earlier statement about "either-or" debates. We have to face the fact that when it comes to long-term use, the unknowns keep piling up.

A 2012 study from the Proceedings of the National Academy of Sciences found evidence long-term use might lead to a decline in IQ scores. However, the study has been criticized for being too limited in scope. The study's authors also acknowledge those limitations. The same is true of other studies. They were limited in scope and not properly controlled. Light, occasional use does not appear to have negative effects on physical and mental health. Yet, as Professor Kleiman points out, as in all things, marijuana use goes by the old 80/20 rule. Twenty percent of users consume most of the marijuana. What happens when the number of stoners grows? Several scientists worry about what will happen when the amount of marijuana increases and when the types grow stronger.

The answer is that we do not know.

The final unknown is how will legal marijuana be regulated?

Some people do not think it should be regulated at all. That argument will not go far. There will be regulation, even if only for a cynical reason: Taxes.

A regulated substance is a taxed substance. If the General Assembly comes to the conclusion that the citizens want marijuana, the legislators will affix taxes to ease their collective conscience.

Yet who should be able to grow and sell marijuana in Delaware?

Will an individual be able to grow his own? Or should only licensed growers be allowed to grow it (see Delaware's history with casinos for an example of how the legislative mind works)? Will a user be able to import his marijuana? Should the state restrict the growing of marijuana to co-operative farms?

Or should the growing be left to the marketplace? If it were, consolidation and automation eventually would deliver the Delaware pot market to some version of Big Marijuana. Corporate giants seem to be the end point in every business in America. (Speaking of multinational companies, would we allow a foreign country, say China, to take over our marijuana supply?)

Who should be allowed to sell marijuana? Remember Delaware would have a large tax interest at this point, so growing your own and selling it across the back fence would be considered tax dodging.

Will we see prepackaged marijuana in a Walgreens or a Wal-Mart? Will the growers and sellers be allowed to advertise? Could they sponsor sporting events? (I am aware of the incongruities in that sentence.)

Of course, it would be illegal to sell or give marijuana to anyone younger than 21. (We all know how effective the current stringent laws are.) Advertising to young people also would be illegal. (Remember "Joe Camel"? Now that was an ad campaign kids never noticed.)

In other words, should the marketplace take over? Even if we do not want it to, how can we stop it?

Some authorities have suggested a state-store set up, similar to the way Pennsylvania sells liquor. That way sales and advertisements would be more subdued. The operations would be in the public interest and not according to the bottom line. However, Jonathan Caulkins, a professor at Carnegie Mellon University, points out that model runs into the problem of the federal Controlled Substances Act. How could a state operate a business that the U.S. Congress deems illegal?

Others have suggested a nonprofit model. The idea is to allow a nonprofit entity to set up operations, control the price and run the business in the public interest. That sounds good, but who gets to pick the operation and who sets the salaries of the nonprofit's officers?

(While we are on the subject of nonprofits, perhaps Delaware should consider giving the marijuana operations to some current organizations, say in the arts. That could solve a host of problems. No more auctioning off paintings.)

Despite my jokes, this really is a serious issue. If Delaware does decriminalize marijuana possession, that will move us to the next level of the debate. Unfortunately, most people do not realize there is a debate going on. The politics and the demographics on the issue mean we are moving toward the legalization of marijuana. Not this year and maybe not next, but soon. Therefore, we should talk about it.

Professor Kleiman is right. It is not an either-or question. There are unknowns and we must face them.

Marijuana decriminalization and marijuana legalization are political issues, even with their medical and social implications. The debate should be serious and it should be rigorous.

Delaware has an election this year. The marijuana question should be on the agenda. Start asking your legislator where he or she stands: Are you for or against marijuana legalization and why?

At the least, it will make the campaign more interesting.

John Sweeney is The News Journal's editorial page editor. His email is jsweeney@delawareonline.com.