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50 Years After Nixon’s Commission Declared Criminal Laws Were ‘Too Harsh’ on Pot Users, the Federal Ban Remains in Place

By Brooke Kaufman

March of 2022 marks 50 years since President Richard Nixon’s National Commission on Marihuana and Drug Abuse issued its report, Marihuana: A Signal of Misunderstanding. The panel, chaired by former Pennsylvania Governor Raymond Shafer, was appointed just one year after President Nixon described drug abuse as “enemy number one” of the American public.

Instead of calling for increased punishment for marijuana users, however, the report did an about face, chastising criminal law for being “too harsh a tool to apply to personal possession [of marijuana] even in the effort to discourage use.” The panel went on to argue “the actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior” — an important legal question at the time, considering other privacy cases taken on by the Supreme Court in the early ‘70s.

From the report, a policy of “decriminalization” took hold, not with the Nixon administration, but with nearly a dozen states, starting with Oregon in 1973, which changed low-level possession from a criminal offense to a civil violation. In 1977, President Jimmy Carter endorsed decriminalization, telling Congress, “penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself.”

But this progress was short-lived. A peak in popularity in the late ‘70s soon fell to a renewed anti-drug effort during the Reagan and George H.W. Bush administrations. Today, however, according to the National Organization for the Reform of Marijuana Laws, 32 states and the District of Columbia have legalized or otherwise decriminalized marijuana possession for adults. The drug is also recognized as a medicine in 37 states, 18 of which allow recreational use.

The federal government has been slow, if not completely uninterested, in following states’ lead. At the federal level, marijuana usage is illegal and low-level possession remains a crime. Attempts to reconcile conflicting state and federal marijuana laws have failed to move through the Senate. President Joe Biden, who only recently has painted himself as a drug law reformer, says he supports the federal decriminalization of marijuana use. Biden does not, however, believe the federal ban should be repealed. Biden promised to “broadly use his clemency power” to commute the sentences of nonviolent drug offenders, but so far, no such actions have taken place. He has also failed to act on a promise to facilitate medical research to reclassify marijuana under the Controlled Substances Act.

Since the mid-1990s, according to polling from Gallup, the American public’s support for legalizing marijuana use has been steadily rising. According to a poll from November 2021, a whopping two-thirds of Americans think marijuana use should be legalized. As popularity and support for the drug peaks once again, we’ll see if the Biden administration chooses to act on its alleged reformist agenda.

In the meantime, marijuana arrests in the United States have been on the rise since the early 1990s, hitting a peak of 873,000 in 2007. In 2020, the total fell to about 350,000, down 60% from the 2007 peak. 91% of the 2020 arrests were for low-level possession — the type of offense the Shafer Commission said should be abolished 50 years ago.

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