Prison for marijuana use?
Marijuana has been used for millennia and is one of the world’s oldest cultivatable crops; it was grown and cultivated in China as early as 4000 B.C.E., has been used as an intoxicant in India earlier than 600 B.C., and has been used for medicinal purposes and hemp production in the United States since the early 1600s. The plant has only been subject to legal restrictions this past century. Efforts to decriminalize marijuana, or at least legalize medical use, have intensified since California legalized the medicinal use of marijuana in 1996. Today 20 states, and Washington DC, have legalized marijuana in some form (most commonly for medicinal purposes), with Colorado and Washington legalizing, and taxing, the sale and recreational use of marijuana this past year. 
Legally, according to the schedules set by the Controlled Substances Act (1970), marijuana is placed under the strictest control, along with drugs such as LSD and heroin. In fact, it is considered more dangerous than cocaine, opium, methamphetamine, methadone, oxycodone, and numerous other drugs that are responsible for the deaths of thousands of people annually. To this day there has never been a single documented fatality resulting from the consumption of marijuana, while overdosing of prescription painkillers (opioids) were responsible for the deaths of 14,800 people in 2008. In 2009, these drugs caused 475,000 people to seek emergency medical assistance.
Estimates of the number of Americans who smoke marijuana annually range from the government’s estimate of nearly 19 million to a recent Pew poll that estimated the number at over 30 million people. Among famous Americans (of all political stripes) who have admitted to smoking marijuana are President Obama, former Presidents George W. Bush and Bill Clinton, Secretary of State John Kerry, Supreme Court Justice Clarence Thomas, and outgoing New York mayor Michael Bloomberg. Media personalities from Oprah Winfrey to Martha Stewart have also acknowledged smoking marijuana. While some (notably President Obama and former President Clinton) are firm opponents of legalization, many others favor legalization, in a pattern that parallels the open defiance of the law during Prohibition.
While the relative benefits and adverse effects of marijuana continue to be debated, there is an ongoing, little-known injustice resulting from our nation’s current laws against the possession of the drug. While studies show that whites and blacks tend to smoke marijuana in equal proportion, marijuana arrests are more likely for black Americans than for white Americans. Over the past 15 years, police have arrested 10 million Americans for the possession of marijuana, nearly 700,000 annually. In several large cities—Chicago, Los Angeles, New York—police arrest seven times as many blacks as whites for possession. In New York, 87 percent of the 600,000 marijuana arrests over the past 15 years have been of blacks and Latinos, and arrests solely for marijuana possession comprise the overwhelming majority of the arrests of minority youth in New York. Some of the reasons for this include that police engage in more invasive searches in black neighborhoods (and in the stop-and-frisk searches that primarily target minority youths), which results in the discovery of marijuana and subsequent arrests.
Though marijuana possession is a misdemeanor, those arrested face additional penalties, as many employers have access to these criminal records and automatically disqualify any job applicant who has any history of arrest. Another point rarely noted is that these arrests may (in some states) abolish the voting rights of those convicted, depriving these individuals of a most fundamental right.
While the harsh prison terms for the possession or sale of small amounts of drugs began in 1973 under the Rockefeller Drug Laws (enacted by New York Governor Nelson Rockefeller), and people may associate increased arrests with the Reagan era, marijuana arrests, in actuality, spiked during the Clinton administration, when local police departments were given grants for conducting anti-drug activities.
In order to show proof of the value of these grants (and thus ensuring their continuation), police departments stepped up arrests for marijuana possession, from 260,000 in 1990 (before the grants) to 750,000 in 2010, reflecting the increased granting of anti-drug funds under the Obama administration. Since 1980 the US federal prison population has increased a staggering 790%, largely due to the normalization of excessive prison terms for non-violent drug offenders. 50% of all federal prisoners are serving a sentence for a drug related offense and in the year 2012, three-quarters of mandatory minimum prison sentences were for drug offenses, with 1/3 of these sentences being 10-year mandatory minimums.
These arrests tend to be much easier than arrests for more serious crimes, and bolster the number of “criminals” taken off the streets for statistical purposes. In addition, incarcerating non-violent drug offenders is a profitable industry. The ACLU estimates that law enforcement annually generates $3.6 billion of expenses on these arrests, as they often involve overtime for police officers making the arrests, processing the perpetrators, and filing the necessary reports and paperwork.
This harsh legal treatment of those possessing drugs is also evidence of our legal system’s emphasis on punitive treatment instead of rehabilitation. Many of those individuals who are arrested for drug related offenses are desperately in need of drug treatment programs and rehabilitation; instead, though, they are sent to prison where their health and addiction troubles are ignored and contraband drugs abound.
Our nation’s obsession with punitive justice (as “just desserts”) and incarceration is unjust, immoral, expensive, and also marked by racial bias. Nearly 90% of those incarcerated in the United States are members of a minority group, predominantly Latino and black. These sentencing disparities are not acceptable and federal and state laws that require mandatory incarceration for first-time drug offenders must be appealed. Our criminal justice system should allow for more judicial discretion that would allow judges to move those with drug addictions into mandatory treatment facilities rather than prisons.
While the Obama administration has come out in favor of reforming the injustice of heavy mandatory sentences, even for marijuana possession, the President has strongly, and publicly, opposed any, and all, legalization of marijuana efforts. The Administration’s position is emphatic: “The Obama Administration has consistently reiterated its firm opposition to any form of drug legalization.” To the administration, marijuana is currently less accessible because it is expensive and illegal; legalization would make it less expensive and more accessible, thus increasing the prevalence of use. In addition, they claim that the legalization of opioid drugs has resulted in much greater use and abuse; a result they believe will be repeated with marijuana. However, the Obama Administration did announce that it would not seek to veto the legalization laws passed by voters in Colorado and Washington, earning praise from drug reform groups and marijuana rights activists.
The Obama Administration further claims that marijuana arrests rarely lead to prison time, wholly ignoring the hundreds of thousands of individuals serving prison sentences. Further, the Administration argues that drug cartels make money from other drugs and would not go out of business if marijuana were legalized, and that cartels would merely cut their prices to undersell legal marijuana if it were taxed for revenue. Though this position is at odds with respected studies conducted by the Mexican Competitiveness Institute, the RAND Corporation (which cites that legalization would cut cartel drug income by at least 20%), and several government agencies (in the US and Latin America). Furthermore, the Administration’s fear that the Mexican cartels would just lower their prices is not borne out by the example of Prohibition, where organized crime lost much of its power over the alcohol industry. In California, no such rise in organized crime has been observed. Further still, the Obama Administration states that the harmful effects of marijuana include:
• Respiratory illness, impaired cognitive and motor performance, mental illness and dependency, and reduced immunity
• Impaired memory and perception
• Increased rates of suicidal ideation, depression, and schizophrenia among chronic users
• Lung irritation, as marijuana smoke contains 50-70 percent more carcinogenic hydrocarbons than tobacco.
This opinion is echoed by the medical establishment. The American Medical Association, which had once endorsed the decriminalization of marijuana, now opposes it on the state level and refers to it “a dangerous drug.”
As a result, American research has focused on developing drugs that would prevent the feeling of pleasure from smoking marijuana (called cannabinoid antagonists). However, the first cannabinoid antagonist, rimonabant, developed as a diet drug, did not receive FDA approval due to its potential for adverse psychiatric effects, including suicide. In addition, some published studies have been exposed for exaggerating and sensationalizing the alleged harmful effects of marijuana. For example, a 2001 study was heralded as showing that there was a 4.8 times increased risk of a heart attack for marijuana smokers. However, in this study of 3,882 patients who had survived a heart attack, 124 were marijuana smokers, and only 9 had smoked marijuana within an hour of their heart attack (the premise of the study was that the rapid heartbeat increase in the first hour of smoking marijuana would theoretically raise the risk of a heart attack by 4.8 times). The marijuana smokers were also more likely than the other survivors to be men, tobacco smokers, and obese, independent risk factors for cardiovascular disease. Critics have noted that the study presents a theoretical risk rather than hard clinical outcomes, and doubted that a study of 9 patients (out of 3,882) would be given such coverage were it not for its politically charged conclusions.
One of the major factors that most marijuana rights activists point to in justification of legalization efforts is the potential for various medicinal and therapeutic uses, such as being a safe alternative to opioid painkillers and as a remedy for the extreme nausea experienced by cancer patients undergoing chemotherapy. Proponents commonly point to the thousands of published articles in scientific journals (almost all of which originate outside the United States, with much research emanating from Israel) that have investigated the efficacy of cannabinoid agonists (those that access the cannabinoid receptors in the brain) such as THC (tetrahydrocannabinol), the main active ingredient in marijuana. Some of the most commonly cited scientific findings include:
- The active ingredient in marijuana, THC (tetrahydrocannabinol), is extremely safe compared with other prescription drugs, and indeed, there are no documented cases of someone dying from smoking marijuana;
- A 1998 WHO report concluded that in terms of typical use, marijuana was far less of a public health threat than alcohol or tobacco;
- Studies have shown that marijuana smokers are not more likely to suffer from diseases associated with tobacco smoking, such as lung cancer or chronic obstructive pulmonary disease, and;
- People who progress beyond marijuana have also usually used alcohol and tobacco earlier. Marijuana, being cheaper and more available than other recreational drugs, will logically be the first drug used by those who progress to more dangerous substance abuse. Thus, it is not a gateway drug, as is commonly argued by many detractors.
Furthermore, it is impossible for marijuana smokers to smoke the equivalent of 1-2 cigarette packs daily, as many tobacco smokers do, thus comparing the health effects on the lungs from tobacco and marijuana smoke is poor science.
What is often forgotten by those predicting dire consequences that would result from marijuana legalization is the example set by the State of California. In northern California, the state’s 17-year experience with medical marijuana has resulted in the creation of new industries tied to its cultivation (e.g., testing labs, equipment stores, and even a university) as well as millions of dollars in tax revenue. One medical marijuana dispensary in Oakland, for example, collected $1.2 million in sales tax from the sale of medical cannabis in 2012. Critics point out that the rich marijuana farms are magnets for robbers, and caution that the proliferation of dispensaries can overwhelm the community. However, proponents counter that planning regulatory policy ahead of legalization has provided the answer to the latter problem in many California cities. No dramatic rise in marijuana use has been noted, domestic production has soared, and the only change appears to be that more youths are using marijuana rather than alcohol before they drive, which can be considered a slight improvement. Careful monitoring of the situation in Colorado and Washington promises to provide important and pertinent evidence of the consequences of legalizing the sale and recreational use of marijuana. The results of these unprecedented (in the US) efforts will surely impact the decisions of other states considering similar decriminalization endeavors.
What is missing in this debate are randomized controlled trials, which, of course, are hampered in part because they would have to be conducted with a currently illegal drug, and the investigators would risk arrest. Most current domestic results are by necessity anecdotal, as there is no standard for the cultivation and production of marijuana, so its THC content could be several times greater in one sample than another, and pesticides, mold, and other impurities might contaminate some samples as well. If the Food and Drug Administration regulated the process and adequately prepared large controlled trials that could finally produce clinically significant results the American public would have important date that would inform debate and pubic opinion on the issue.
Finally, the taxation of marijuana, similar to the methods and means by which alcohol and tobacco are taxed, could provide needed funds to many communities, cities, and states struggling with budget deficits and inadequate tax revenue. According to NORML (National Organization for the Reform of Marijuana Laws), “The total direct savings to government in taxes and enforcement come to some $8 – $16 billion per year. These figures are somewhat lower than those sometimes bandied about in public discourse, as both legalizers and prohibitionists have a tendency to make consumption estimates that are in our opinion inflated.” NORML arrives at those figures by estimating an accrual of $2.2 – 6.4 billion in excise taxes, $0.2 – 1.3 billion in sales taxes, $6 – 9 billion in enforcement savings, and $6 – 10 billion from the hemp industry. Similar, if not higher, figures have been reported in countless studies.
In addition to empirical research, I probe my tradition to better understand the values that can help inform this crucial issue. The Torah understood in the beginning that substance abuse led to improper behavior. “And Noah planted a vineyard… and he drank wine, became drunk and was uncovered” (Genesis 9:20). One rabbinic case touching upon this Noah story teaches the value of moderation and the dangers of improper use.
Satan came and stood before Noah, saying, “What are you planting?” Said Noah, “A vineyard whose sweet fruits will produce wine that causes the heart to rejoice.” Said Satan, “Let us be partners in this vineyard.” “Yes,” said Noah. Satan then brought a lamb and slaughtered it under the vine. Then he did the same—one after another—with a lion, a pig, and a monkey, sprinkling their blood throughout the vineyard, thus causing Noah to drink their blood in his wine. In so doing, Satan hinted to man that when a person begins drinking alcohol he is timid and innocent like a lamb, then when he drinks just enough he is strong like a lion, thinking that none are as strong as he. But when a person drinks too much, he acts first like a pig polluting himself in his urine, then like a monkey who dances around uttering vile words, completely out of control. All of this happened to Noah (Tanhuma, Yalkut Shimoni, Noah 61).
The Torah commands that we preserve our health (Deuteronomy 4:15) and that we distance ourselves from dangerous substances (Bava Kama 15b, Hilkhot Rotzeiah 11:4-5, Rema, Yoreh De’ah 116:5). The Rashbam, the medieval legal authority, (on Pesachim113a) opposes drug use because of the financial cost to the individual imbibing:
Do not take drugs: this is because they demand periodic doses. And your heart will crave them. You will waste much money thereby. Even for medical cure do not take them, and, if possible, find another mode of healing.
The Rambam (Hilkhot Yom Tov 6:20) based his opposition to drug use on the feelings of unnatural-joy and unholy-joy, that the substance produces in the user.
However, many find religious meaning in enjoying the natural fruits of this natural world that have been provided by G-d. Rabbi Jonathan Sacks, the former Chief Rabbi of the UK, wrote: “The world is God’s creation; therefore it is good, and prosperity is a sign of God’s blessing. Asceticism and self-denial have little place in Jewish spirituality.”
Another position on the topic has been offered by Rabbi Moshe Feinstein, the 20th-century legal authority, who strongly condemned the use of drugs (Igrot Moshe, Yoreh Deah 3:35). However, the great rabbi explained that where there is no harm to oneself or another he believed it was technically permissible to indulge in drug use (Igrot Moshe Yoreh Deah 2:49, Igrot Moshe Choshen Mishpat 2:18).
Personally, I do not smoke or engage in any drug use, nor do I condone any drug use. I believe many diminish their potential by engaging in recreational drug use. Additionally, I am very concerned about the health and cultural impact; however, I am also sincerely concerned with unjust regulation in this country and the effects on those most vulnerable in society. We cannot ruin lives and break down familial bonds to further “tough on crime” politicians and increase prison revenues. The unequal enforcement of drug laws that are needlessly punitive must stop. I have come to believe that decriminalizing marijuana, in a similar fashion to the efforts that have been made in California, Colorado, and Washington, would produce a more equal and just society. As a rabbi I am conscious of the fact that this position may be at odds with other Jewish leaders; however, I am confident that my advocacy is based in substantive Judaic doctrine and the moral condition that G-d requires of his servants. I encourage all, both Jews and gentiles, to further explore the topic and reach their own conclusion, cognizant of the social and political context that informs the matter.
Rabbi Dr. Shmuly Yanklowitz is the Executive Director of the Valley Beit Midrash, the Founder & President of Uri L’Tzedek, the Founder and CEO of The Shamayim V’Aretz Institute and the author of “Jewish Ethics & Social Justice: A Guide for the 21st Century.” Newsweek named Rav Shmuly one of the top 50 rabbis in America.”