Ending the federal prohibition of cannabis has never felt closer than it does now. The Marijuana Opportunity Reinvestment and Expungement (MORE) Act passed the House in December, and awaits action in the narrowly Democratic-controlled Senate. As a result, hopeful investors are pumping cannabis stocks ahead of what could finally be the federal decriminalization of cannabis in America.
However, federal decriminalization could create more problems than it will solve, according to Colorado officials and industry insiders. Decriminalization without legalization perpetuates the unregulated and illegal markets, doesn’t allow jurisdictions to tax cannabis revenue and fails to address the systemic inequalities in the cannabis industry. But, perhaps most importantly, to decriminalize cannabis without legalization would be to miss an opportunity to guide a federally legal industry toward success.
Kaitlin Urso, environmental consultant, project manager and small business assistance program specialist for the Colorado Department of Public Health and Environment (CDPHE), is excited about the MORE Act moving through Congress because of what it could mean for non-violent cannabis offenders with felonies on their records. She’s also happy that the MORE Act’s passage could finally open up scientific cannabis research throughout the U.S.
“But at the same time,” she wonders, “are we missing an opportunity to set some sort of legal structure at the federal level with decriminalization?”
Because of her role at CDPHE, Urso naturally thinks of this issue from an environmental standpoint.
“If the government says it’s not illegal to possess or to cultivate, without giving a legal licensing structure for businesses to operate in, you get a lot of gray-market activity,” Urso points out. That translates to a lot of unnecessary waste: of electricity, water, hazardous materials and packaging.
The same applies to quality standards, she says. Without an authority providing some kind of quality control, there’s nothing stopping cultivators from using pesticides, fertilizers and methods that might otherwise be prohibited under full legalization. And there’s no regulatory agency to verify businesses’ claims to customers, no consequences for inaccurate or outright dishonest advertising.
“Essentially, if you have decriminalization without legalization, you lose all of those protections,” Urso says.
On top of that, while it won’t technically be “illegal” under federal decriminalization, any cannabis cultivator or retailer could still be vulnerable to fines, and police could still charge people for possession in gray-market states. Plus, criminal drug traffickers would still have a hold over those gray markets.
The Drug Policy Alliance writes on its facts page, “Decriminalization will also do nothing to eliminate the lucrative underground market for marijuana, estimated to be worth $40 billion in the U.S.”
The underground market, and the revenue that comes with it, is largely controlled by cartels, which would only perpetuate violence and deal in far more dangerous substances than pot, under decriminalization, the DPA says. Instead, revenue from a legalized and regulated market could fill government coffers. Just last year, cannabis sales taxes collected in Colorado exceeded $380 million.
“This immense market is completely untaxed,” the DPA’s fact page continues, “a source of revenue that federal and state governments can ill afford to neglect.”
Finally, federal decriminalization without legalization will fail to address the systemic racial inequalities plaguing cannabis use. According to the ACLU, black Americans are 3.64 times more likely to be arrested for cannabis possession than whites.
“In every single state, black people were more likely to be arrested for marijuana possession,” the authors of the ACLU’s 2020 cannabis analysis write. “In 31 states, racial disparities were actually larger in 2018 than they were in 2010.”
Until a bill was passed in Colorado last year, anyone with a cannabis felony on their record was prohibited from participating in Colorado’s legal market in any way — a fact that boxed many minorities out of the industry from the get-go. Decriminalization without legalization would provide no guidance to states seeking to legalize.
Of course, none of this is to say that decriminalization of cannabis wouldn’t be a historic step. If the MORE Act passes, cannabis will be decriminalized and hundreds of thousands of records will be expunged — which will do immense good for countless Americans. However, decriminalization without legalization misses an opportunity to set the U.S. cannabis market up for success; and it would do nothing to address many of the biggest issues surrounding its criminalization.
“That’s basically what the regulatory structure is designed for: safety, security and diversion — making sure we have safe products, safe packaging and integrity in the supply chain,” Urso says. “None of the benefits of being a legalized business are there under decriminalization.”