Last week, the Department of Justice announced that the federal government will not prosecute marijuana-based offenses in states that have already legalized marijuana. This is a victory for the marijuana legalization movement, but it does not go far enough.
While this document implies that federal prosecutors will not interfere with state law enforcement in the 20 (and counting) states where marijuana is legalized, it does not allude to the possibility of legalization on the federal level or the national-international law enforcement conflicts that the U.S. could face in the future.
A prudent next step for the Obama administration would be to address the potential future conflicts with international drug conventions, specifically, the 1961 Single Convention on Narcotic Drugs, sponsored by the United Nations International Narcotics Control Board. Parties to the convention (the United States and 183 other member countries) agree to a worldwide prohibitory state of narcotic drugs and have agreed to criminalize individuals, groups, and businesses within their respective countries that use these narcotic drugs illegally.
As the U.S. moves closer to federal legalization and regulation of marijuana markets, their practices will drift farther and farther away from the current guidelines in the convention. However, there is an option that the Obama administration should explore that a) would allow the United States to move towards having a legalized and regulated marijuana market, and b) would not conflict with the international controls set by the convention.
Firstly, the U.S. should withdraw from the convention. Withdrawing from the convention is an action recognized by international law, and means that the country no longer wishes to abide by the international guidelines set forth, such as criminalizing the sale or production of marijuana.
Has this ever been done before? Yes! Actually, Bolivia withdrew from the Single Convention on Narcotic Drugs in 2012 to do something similar. They withdrew from the convention entirely, and re-acceded in January 2013. The difference between their previous status and their current status is two short sentences: legalization of the cultivation of coca leaf and consumption (chewing) of coca leaf, a practice traditional to many Bolivian indigenous people. While I typically wouldn’t recommend that the U.S. follow in Bolivia’s footsteps, this action is an exception.
Secondly, the United States should select which clauses they wish to opt out of. A forward-thinking president, knowing that legalization of marijuana is imminent, might consider opting out of not only the clauses that prohibit the production, sale, and consumption of marijuana, but also opting out of the clauses that require marijuana possession to be punished. Opting out of all clauses that require marijuana possession to be punished means that the United States wouldn’t have to substitute a criminal penalty (i.e. time in jail, on a criminal record) for a civil penalty (i.e. a ticket or civil fine, which is what most individuals receive when caught using marijuana in states that have decriminalized weed). Other countries such as Brazil, Mexico, and the Czech Republic have decriminalized marijuana but, in order to comply with the UN convention, have replaced criminal punishment with the punishment of civil fines. By opting out of any clauses that require some sort of punishment for marijuana possession, the U.S. could leave open the option for a future with no civil fines for marijuana possession and no international repercussions.
Thirdly, the United States should re-accede to the convention, with their specific reservations. To block the U.S. from re-acceding, one third of states party to the convention (about 61 states) must object to their re-accession. This seems unlikely to occur. When Bolivia applied for re-accession, only 15 states objected, many of which are close allies of the U.S.
While this process of withdrawing and re-acceding would be controversial, it would set a precedent for the global prohibitory state of marijuana. Instead of being known for our high drug-related incarceration rate, we could be known for transforming the Single Convention on Narcotic Drugs into a convention that prioritizes harm reduction over criminalization.