Editor's Note: This article originally appeared on Harvard Law and Policy Review on January 13, 2016.
Samuel Caldwell was relaxing in Colorado’s Lexington Hotel when federal agents pounded at his door. It was October 2, 1937, and Caldwell would become the first American arrested for selling marijuana. Seventy-seven years later, a few miles away from the old Lexington hotel, Iraq War veteran Sean Azzariti became the first person to ever buy legal, regulated, recreational marijuana.
In the intervening years, America has been torn apart by diametrically opposed and deeply held beliefs about marijuana. To the flower children of the sixties and seventies, it could inspire love, peace, and understanding. To the drug warriors of the eighties and nineties, it was a limitless font of crime, violence, and social unrest. By the turn of the century, we would witness two Beatles’ arrests for possession of hasish, an Olympian stripped of his Gold medal, D.A.R.E. in schools, and a grisly Mexican drug war. When it comes to marijuana, there are two truths in America: Lots of people are smoking it, and it is absolutely, positively, incontrovertibly illegal.
For nearly a century, we have continuously asked ourselves the same question: should we legalize marijuana? In 2012, frustrated with the War on Drugs, Coloradans answered in the affirmative. Recreational marijuana was to be legal. It was to be regulated. It was to be taxed.
As Colorado’s first Director of Marijuana Coordination (a title I never coveted, nor even imagined would ever exist when I was receiving my diploma at the steps of Langdell Hall), my job is not to determine whether we should legalize marijuana. The voters answered that for us already. I have had the unique opportunity to be one of the few people in the world to be focused on how to legalize marijuana.
In less than two years, Colorado’s state and local governments have done remarkable work to faithfully execute the will of the voters while tirelessly working to keep marijuana out of the hands of children, and to maintain public health and public safety. We did so by inviting every concerned stakeholder to help us think through implementation—public health experts, law enforcement, medical marijuana advocates, potential marijuana industry members, concerned parents, pediatricians, and constitutional lawyers. Our Department of Revenue set up a Marijuana Enforcement Division to properly regulate the industry. Our Department of Public Health and Environment rigorously researched the health effects of marijuana usage; created multiple, successful public education campaigns; and certified labs for testing marijuana for safe use. Our Department of Agriculture created new pesticide rules for a never before regulated crop. Colorado did all this with no roadmap from other states, and without the usual assistance from the federal government.
The marijuana industry, too, worked hard to become a legitimate, highly regulated industry. Every marijuana plant is tagged with a radio frequency identifier and meticulously tracked from seed to sale. Every step of marijuana production, distribution, and sale is thoroughly videotaped industrywide. Every owner and every employee has to get a license and go through lengthy background checks. Businesses have to check ID’s at the door, and only permit access to those 21 and older.
While the rollout of legalization has generally aligned with the voters’ intentions, the long-term questions of how to successfully legalize marijuana are only starting to be addressed. For example, public health data to date has not shown a massive increase in marijuana users, either amongst youth or adults. However, this could change dramatically as the industry consolidates and begins advertising using market and consumer data. Marijuana has the same problem as alcohol and tobacco; roughly 20% of the users purchase 80% of the product. In the past, this consumer dynamic caused tobacco companies to grow the market by getting people addicted, and by getting people addicted younger. If the marijuana industry moves in this direction, we could be heading down a very detrimental path. I raise this not as an inevitability, but as one of many possible paths. The path we ultimately go down will be dependant on how the government, the industry, and the people of Colorado implement legalized marijuana.
Perhaps, then, the question everybody should be asking is how would we legalize marijuana? Can we create a regulated market that more effectively keeps marijuana out of the hands of children than the status quo? Or will we create a system where commercialization and availability creates more substance abuse? What are the proper roles and responsibilities for cities, states, and the federal government? How will we define and measure success? And what will we do if things go wrong?
I submit that these are more interesting, and more fruitful, questions for the nation to be answering than should we legalize marijuana?