How states are getting better at legalizing marijuana

In the spring of 2016, Vermont was poised to be the next state to legalize marijuana, following in the footsteps of Alaska, Colorado, Oregon, and Washington. Governor Peter Shumlin had spearheaded the effort to legalize the drug in his state, and legislators were stepping up to make it happen.

But then the Vermont House rejected the Senate-approved legislation, and the drive to legalize recreational pot in the Green Mountain State came to a halt. Despite this setback, Vermonters who favor legalization (and some 55 percent do, according to a poll sponsored by Vermont Public Radio) take heart in the way their state has approached the issue and remain optimistic that legalized recreational marijuana will eventually become a reality.

Legalization: next logical step?

Medical marijuana has been legal in Vermont since 2004. In 2013, Vermont decriminalized recreational marijuana, replacing criminal penalties for possession of small amounts of marijuana with civil fines. Possession of marijuana for personal use in Vermont no longer results in a criminal record. However, cultivation of marijuana and possession of large quantities (more than one ounce) remain criminal offences.

The move to decriminalize marijuana was celebrated as much for being a step toward racial equality as for rationalizing drug policy. In 2013 an ACLU study found significant racial profiling in marijuana arrests. According to the report, marijuana use among blacks and whites is roughly equivalent, but arrests of African Americans are much higher – in Vermont, African Americans were 4.4 times more likely than whites to be arrested for possession of marijuana. Nationwide, that number is 3.7.

In light of such statistics, decriminalization is a useful tool for reducing mass incarceration and its disproportionate effects on minorities. But it leaves possession of recreational amounts in a legal gray area: not a crime, but not entirely lawful, either. Legalization would resolve this ambiguity, but questions remain – foremost among them: How to create a regulatory system that allows consumers to obtain marijuana legally while meeting the state’s need to control and tax the use of the drug?

Building a legislative framework

Vermont’s legislature has been quietly considering legalization for years. Last year the legislature commissioned a report on legalization, which provided a fairly nuanced review of legalization options. It also predicted possible tax revenues of up to $75 million. In something of a surprise move, Shumlin proposed the outline of a legalization plan during his 2016 State of the State address in January, despite having expressed doubts about legalization only days before.

Legislators moved quickly in response to Shumlin’s endorsement of legalization. In late February 2016, the Senate approved a bill based on his outline, sending it to the House of Representatives in time for action during the current legislative session. The House, however, rejected the Senate bill, citing concerns over the regulation of legalized pot.

Indeed, there were many details to be worked out, including how much sales tax to charge and exactly how marijuana tax revenue would be spent (drug prevention and treatment programs, together with law enforcement, were expected to receive the lion’s share).

Policymakers also debated the potential effects on Vermont’s major industries. In a February 5 hearing on potential impacts to tourism, Vermont’s commerce secretary, Pat Moulton, stated, “[Marijuana] is already here. When one of the top 10 reasons Mad River Glen [ski area] kept its single chair was so you don’t have to share your weed, that would suggest that it’s already here, and I’m not sure it’s going to impact the tourism economy that greatly.”

Despite the failure to pass a bill this time around, the issue appears likely to re-emerge in the next legislative session.

Experts say Vermont is doing it right

Given that marijuana legalization seems inevitable in many, if not all, parts of the United States, marijuana advocates and doubters are unanimous in calling for a regulated marketplace, citing both the potential tax income and the need for consumer protections. So far, citizen initiatives have driven the legalization of marijuana, leading policymakers to develop regulatory systems hastily after the fact.

“Ballot initiatives are a terrible way to make policy changes when the technical details matter,” writes Mark Kleiman, professor emeritus of public policy at UCLA.  States like Washington and Oregon continue to modify the technical details to correct inconsistencies, redundancy, and oversights in their initial regulations.

If the movement to legislatively legalize marijuana in Vermont eventually passes, it will be the first time that a legislature has proactively studied the options for legalization and subsequently used that research to develop a regulatory framework. Learning from the complications that have arisen in other states, Shumlin’s proposal called for marijuana legalization to include protections to keep adolescents from buying the drug; taxation and spending policies that support addiction prevention; comprehensive penalties for marijuana offenses, especially DUI laws; and a temporary ban on edibles, pending further analysis.

Vermont is too late to be the first state to legalize marijuana, but, despite this year’s outcome, it might still be the first one that makes it look like a good idea.