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Decriminalization Isn't a New Idea

Mark Oswald
Santa Fe New Mexican
September 5, 1999

Gov. Gary Johnson's recent call for public debate on decriminalizing now-illegal drugs - foremost marijuana - exploded like a bomb on New Mexico politics.

The fact that a sitting governor would talk openly about decriminalizing or legalizing marijuana and even harder drugs like cocaine struck veteran politicians and government insiders as provocative, stunning, outrageous.

But marijuana users in 10 other states might have reacted much differently, with something along the lines of: "What's the big deal?"

Between 1973 and 1978, 11 states decriminalized possession of small amounts of marijuana - with fines and citations similar to traffic tickets replacing arrests and criminal charges.

Two of the 11 states - Alaska and Oregon - have since reversed themselves and abandoned decriminalization. Oregon voters last year did approve a ballot initiative to allow medical uses of marijuana.

"About one-third of the country's population lives under some kind of marijuana decriminalization," said Allen St. Pierre, executive director of the National Organization for Reform of Marijuana Laws Foundation (NORML).

Ohio enacted the most liberal decriminalization - making possession of up to 100 grams of marijuana punishable by a $100 fine. One gram is enough to make about three marijuana joints.

The other states with decriminalization laws are California, Colorado, Maine, Minnesota, Mississippi, Nebraska, New York, North Carolina and Oregon.

The New Mexico Legislature considered pot decriminalization in the 1970s but never approved it - except to allow use of marijuana in a short-lived medical program for cancer and glaucoma patients at The University of New Mexico.

The existing state decriminalization statutes are seldom mentioned as Johnson and others try to nudge the country toward a debate on less-punitive drug policies - even though they've been on the books for about a quarter of a century.

Robert MacCoun, a professor of public policy and law at the University of California at Berkeley who has researched the effects of decriminalization, said he often asks his students to say whether they favor California removing criminal penalties for holding small amounts of pot.

The students dutifully vote yes or no, but almost none of them know that decriminalization has been on the books in California for 25 years, MacCoun said.

When a reporter from The New Mexican called an Ohio substance-abuse agency last week to ask about that state's experience with decriminalization, the state agency's press spokeswoman wasn't aware that Ohio had such a law.

And two of the country's major organizations opposed to legalizing or decriminalizing drugs - the office of White House drug czar Barry McCaffrey and the National Center on Addiction and Substance Abuse at Columbia University in New York - had nothing to say about the experience of the 10 decriminalization states when contacted over the past two weeks.

Part of the problem is that exactly what decriminalization means can be unclear.

"It's a terrible term," MacCoun said. "I prefer the term depenalized.
"With decriminalization, possession of small amounts of marijuana is treated with an administrative fine but it ( the violation ) is still on the books. Cannabis is still illegal in California. It's an ambiguous policy. I might argue that ambiguity is a good thing in this case, but it is ambiguous."

Ari Zavaras, executive director of the Colorado Department of Public Safety, doesn't think his state's longstanding decriminalization law is a big deal.

Marijuana use "is still basically against the law - you just treat it like a traffic ticket as long as there are no surrounding circumstances that would make the situation more serious."

He said decriminalization might even "increase the certainty that at least something will happen" when someone is caught with small amounts of marijuana. "Officers might not do anything before," he said. "This way they can at least give a ticket."

Colorado and North Carolina are also two decriminalization states that allow cities to enact tougher marijuana laws of their own.

Decriminalization doesn't mean no hassles for pot smokers.

NORML's St. Pierre said New York and other decriminalized states have "smoke-a-joint-and-lose-your-license" laws, pulling driver's licenses for up to 90 days from those cited for having small amounts of pot.

He also said pot smokers in New York City have ended up spending as long as a weekend in jail because of the way paperwork delays can hold up processing those cited for fines under New York's decriminalization law, which calls for a civil fine of $100 for first-time possession of up to 25 grams of marijuana.

Has there been much the effect from more than two decades of marijuana decriminalization around the country?

Not much, according to MacCoun. He and research partner Peter Reuter, professor of public affairs and criminology at the University
of Maryland, testified in July before a congressional committee that held hearings on drug legalization and decriminalization.

Based on their own research and surveys by other academics or organizations, they said decriminalization has not changed amounts of marijuana use or that there were increases that were only "slight and temporary" in the decriminalization states.

"Decriminalization was not associated with any detectable changes in adolescent attitudes toward marijuana," they said in a copy of their congressional testimony provided by MacCoun. "Most cross-state comparisons have found no difference in adolescent marijuana use in decriminalization versus nondecriminalization states."

MacCoun and Reuter also found that arrest rates for marijuana possession are about the same in the states that decriminalized and those that didn't.

But Sue Rusche, founder and executive director of National Families in Action in Atlanta and a prominent anti-drug advocate, contends the decriminalization laws did have an impact - by promoting the idea that using marijuana was OK and thereby driving up the drug's use in the 1970s.

"It's true that we can't say that marijuana use increased in the decriminalized states," she said. "But you have to pull back and see that in the 1970s it increased in every state."

Decriminalization, she said, "wasn't happening in a vacuum. It was national debate. And the message was that marijuana was a harmless drug and the perception among kids was that if the states are taking penalties away, there can't be very much wrong with using marijuana."

MacCoun warns against using the experience of the drug-decriminalization states to make arguments for outright marijuana legalization or for decriminalizing harder drugs.

His research shows that marijuana use didn't increase much in the 1970s in the Netherlands when the Dutch police stopped enforcing laws against marijuana possession. But the government began allowing pot to be sold openly at coffee shops in the 1980s, and marijuana use almost tripled among 18- t0 20-year-olds by 1996, his studies found.

The Dutch experience suggests that not throwing drug users in jail is different - and has much less impact - than actually allowing commercial access to marijuana, MacCoun said.

"The Dutch have made a choice," MacCoun said in his congressional testimony. "Less black market activity at the retail level and less police intrusiveness in ordinary life in exchange for higher levels of marijuana use."

Advocates of marijuana legalization also cite studies from Holland showing that overall, marijuana use in Holland remains below that in the United States and that adolescent marijuana use is nearly twice as high in America compared to the Netherlands - with Dutch per-capita spending on drug-related law enforcement well below that in the United States.

Columbia's Center on Substance Abuse and Addiction did release a report this summer arguing that decriminalization of marijuana would increase pot use among young people and take away "the critical support for parents, teachers and others attempting to steer kids away from drugs."