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The case for decriminalizing marijuana in Minnesota — and what it means to do so

Is it time to legalize the recreational use of marijuana in Minnesota? The answer may be yes, but when and how it is done in Minnesota is a critical issue.

REUTERS/Anthony Bolante
In many ways, the time is more than ripe to legalize marijuana.
Is it time to legalize the recreational use of marijuana in Minnesota? The answer may be yes, but when and how it is done in Minnesota is a critical issue.

schultz portrait

David Schultz

Two parties in the November 2018 elections received major party status on the promise of legalizing marijuana. Gov.-elect Tim Walz is apparently supportive of the same, along with several legislators. State Fair and other polls in Minnesota also support legalization of its recreational use, paralleling national polls that find more than 60 percent of the American public favor this. The time seems right to act.

In many ways, the time is more than ripe. Twenty-five years ago I was among the first to argue for decriminalization of drug use. In “Rethinking Drug Criminalization Policies” (Texas Tech Law Review, 1993). I argued that the then-three-decade-long war on drugs had failed miserably and that it was time to shift away from a drug policy that criminalizes its use to one that treats it as a public health problem.

Save resources, reduce disparities

That thesis was true then, and even more so now. My argument then addressed not simply marijuana but all forms of illegal drugs because while there is no evidence that the use of marijuana poses a public health problem, other drugs do. Not a problem then, or at least not apparent, were the health dangers arising from opioid use, which is now an epidemic, posing a far greater problem than the recreational use of marijuana. Add up the costs of police enforcement, court time, and other expenses and one can argue that Minnesota would save significant resources in legalizing recreational marijuana. In addition, as I pointed out earlier this year in a Huffington Post article, the criminalization of its use has failed. Its prohibition has not worked and it has produced racial disparities with lasting effects on society, including in Minnesota.

Marijuana use is effectively already being decriminalized in Minnesota. Over time more and more conditions are being allowed under the medical marijuana law, including, most recently, Alzheimer’s disease. That law has acclimated Minnesotans gradually to its use, but of course there is also a generational shift going on that does not shun its use. One can make a libertarian argument for its recreational use that parallels John Stuart Mill’s “On Liberty” arguments that it is not the business of society what one does so long as it does not affect others. However, the stronger arguments to make are that legalizing its use is consistent with the “One Minnesota” Walz promises in order to address disparities that divide the state. Criminalizing recreational marijuana use is supported by a majority of the state, and its enforcement has racially arbitrary impacts. Additionally, legalizing it saves money, allowing the state to concentrate its resources are more pressing drug-related issues such as the opioid crisis, domestic and sexual abuse associated with alcohol use, and the growing problem of e-cigarettes. Decriminalization should be sold along these lines, suggesting legalization allows for the state to address more pressing problems.

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Other impacts

Finally, many will argue that a legalization strategy will help Minnesota in two other ways. First, a “legalize, regulate, and tax” policy will bring in new revenue to the state. Yes this is the case, but one should be wary about projections of such revenue, which are often oversold. Second, the state should not get too dependent on one revenue stream such as this – lotteries point to this. Third, as seen in the case of Colorado, legalizing, regulating, and taxing marijuana pose administrative complications for the state that need to be addressed. Marijuana is still illegal under federal law, and one cannot use banks. Marijuana sales are a cash economy for now and good planning is essential to making it work. Finally, along these lines, moving from medical to recreational use of marijuana will have an impact on the former businesses, and one must think about that.

A second claim for legalization is its impact on the Minnesota economy. It may well help in many ways, ranging from agriculture to retail businesses. But again, one needs to think in terms of how these new businesses fit in with existing ones in the state. This gets at what is meant by decriminalization or legalization. Is legalization simply about personal use or does it mean commercial sanction? This is a policy question that’s not clear now.

Finally, despite popular support for decriminalization, will this be an easy bill to pass this next session? Do Democrats and Walz want to define their political agenda as starting with marijuana or do they want to start with the budget, the bonding bill, federal tax conformity, or infrastructure? Legalization is a popular issue with urban liberals, but is it a top priority with suburban female voters who put the DFL in charge? What are the priorities, will the fight over marijuana be contentious, and what message will be sent by making it a priority in 2019? These are all good questions that need to be examined.

Overall, the time to legalize is past due, but how it is done and exactly when, and how it is sold, are the real questions that remain.

David Schultz is a Hamline University professor of political science and a visiting professor at the University of Minnesota Law School. His latest book is “Presidential Swing States: Why Only Ten Matter.” 

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