With marijuana considered a medicine in 37 states and counting, many Americans wonder when and if national cannabis legalization might happen. The progress that individual states have made should pave the way for a national policy, but the road toward legalizing marijuana at the federal level still looks uncertain. Here’s where we are:
State Cannabis Legalization Measures
We’ve come a long way in less than two decades since the first medical marijuana laws were established. In 2022, 38 states, three territories (the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands) and the District of Columbia now allow the medical use of cannabis products. Nineteen states, two territories and the District of Columbia have enacted measures to regulate cannabis for adult non-medical (recreational) use. Nineteen other states have enacted medical marijuana programs.
In addition to the states that have medical marijuana programs, 10 states have approved measures allowing the use of low THC, high CBD products. These low-THC programs are not counted as comprehensive medical cannabis programs. To be considered a comprehensive medical marijuana program, a state must include:
- Protection from criminal penalties for using cannabis for a medical purpose.
- Access to cannabis through home cultivation, dispensaries or some other system that is likely to be implemented.
- Allows a variety of strains or products, including those with more than “low THC.”
- It allows either smoking or vaporization of some kind of cannabis products, plant material or extract.
- Is not a limited trial program. (Nebraska has a trial program that is not open to the public.)
Many of the remaining holdouts are conservative states where legalization skepticism runs deep among lawmakers.
Federal Cannabis Legalization Benefits
Marijuana remains classified as a Schedule I substance under the Controlled Substances Act. Schedule I substances are considered to have a high potential for dependency and no accepted medical use, making distribution of cannabis a federal offense. By changing the classification or removing cannabis from the Schedule, it would allow for a broader opportunity to research it.
One significant motivation for legalization that experts note is economic benefits from the regulated commercial availability of marijuana. Beyond expanding access to more medical patients who might benefit from it, legalizing cannabis can help cities. Municipalities that welcome cannabis companies enjoy increased tax revenues, job growth, and investment opportunities.
Another hot area of legalization debate is whether or not people should be allowed to grow cannabis plants at home. For patients who rely on certain strains of cannabis for their medicine, they say growing it at home could be more convenient than trying to find it at a dispensary. The states that allow recreational use and growing are Washington D.C., Washington, Vermont, Rhode Island, Oregon, Oklahoma, New Mexico, Nevada, Montana, Missouri, Michigan, Massachusetts, Maine, Hawaii, Colorado, California, Arizona, and Alaska.
The Cole Memorandum
In 2013, James Cole, an attorney in the United States Department of Justice, issued a memo stating the federal government’s policy concerning states’ efforts to legalize recreational marijuana. What the “Cole Memorandum” did was state that as long as states followed certain guidelines (like keeping marijuana out of the hands of minors and keeping drug cartels out of the business), the federal government would let states regulate as they saw fit in spite of it being illegal federally.
That memo, known as the Cole Memo, along with a similar memo in 2009 relating to medical marijuana, became somewhat of a legal protection for cannabis users. The Cole Memo and other Obama-era DOJ guidance were rescinded by Attorney General Jeff Sessions in 2018. Advocates viewed the rescinding of the Cole Memo as a declaration of a new “War on Drugs.” While this move may sound troubling, the United States Attorney’s Office in Colorado assured that there are no plans to change marijuana prosecutions.
Opposition to Federal Cannabis Legalization
Increasingly, public opinion shows a call to abandon historically inaccurate public policy on cannabis use. However, opponents to federal legalization are still plentiful and have been responsible for blocking or delaying the passage of laws. Opponents cite (often outdated and inaccurate) data that marijuana could lead to higher incidences of abuse and addiction.
Other opponents cite a lack of evidence of medicinal benefit. Some opponents also point to marijuana’s correlation with mental illnesses such as psychoses and schizophrenia.
Efforts to Deschedule & Add Banking Services
Because it still sits on Schedule 1 federally, a precursor to federal legalization is decriminalizing marijuana and descheduling it. Descheduling marijuana would remove it from the controlled substances list, allowing researchers to further study it and paving the way for banks to be able to do business with cannabis companies. There has also been talk of rescheduling marijuana to another tier of the Controlled Substances Act, but that would not do much good. It would keep it a banned substance and would not allow for cannabis businesses to use banking services.
Introduced in March 2021, the Secure and Fair Enforcement (SAFE) Banking Act attempted to make a change prohibiting federal banking regulators from penalizing a depository institution for providing banking services to legitimate cannabis-related businesses. That bill passed the House of Representatives on April 1, 2022.
Federal Cannabis Legalization Bill
In July 2022, a Senate bill to federally legalize marijuana and promote social equity was filed by Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ). The bill addresses cannabis industry workers’ rights, a federal responsibility to set an impaired driving standard, banking access, expungements and penalties for possessing or distributing large quantities of marijuana without a federal permit.
Booker commented: “As more states legalize cannabis and work towards reversing the many injustices the failed War on Drugs levied against Black, Brown, and low-income people, the federal government continues to lag woefully behind. With strong restorative justice provisions for communities impacted by the drug war, support for small cannabis businesses, and expungement of federal cannabis offenses, this bill reflects long overdue, common sense drug policy.”
Polls and Pressure
While there is broad support for legalization on both sides of the aisle, doubts exist about the prospects of advancing through the Senate with the required 60-vote threshold. Democrats need at least 10 Republican senators to join them in breaking a filibuster. There is hope though: A 62 percent majority of Republicans surveyed by Quinnipiac in 2021 said that marijuana should be made legal in the U.S., a whopping +30 points in net support.
In Washington recently, President Joe Biden signed four major bills into law involving climate, prescription drug reform, and gun control. With these issues now checked off, experts believe cannabis legalization has moved up the priority list. The President and Pennsylvania Lt. Gov. John Fetterman (D) briefly discussed marijuana policy reform during a meeting near Pittsburgh over the Labor Day weekend. Fetterman urged the President to take executive action to decriminalize cannabis.
Measures to Expand Cannabis Access in Ohio
In Ohio, a ballot measure to legalize marijuana will not be put to voters in 2022, but a settled lawsuit opens up the possibility for 2023.
While still illegal in the state, voters in over two-dozen Ohio municipalities have decided in favor of local ballot measures decriminalizing the personal possession of marijuana. This year, efforts by the Sensible Movement Coalition and NORML Appalachia have successfully petitioned to place questions before voters that seek to eliminate penalties for the possession of misdemeanor amounts of cannabis. Voters in the following towns will be deciding on these ballot questions: Corning, Helena, Hemlock, Kent, Laurelville, Rushville, and Shawnee.
Senate Bill 261 proposes to improve the regulatory structure of the Ohio medical marijuana program. The bill would increase cultivation space, add qualifying medical conditions, increase the number of forms of use, raise THC levels, create more lenient advertising rules, and streamline the purview of the commerce department and pharmacy board. SB 261 passed the Senate and received its fourth hearing in the House Government Oversight Committee on April 27, 2022. Supporters can help SB 261 get passed by sending emails and placing phone calls requesting passage of the bill to every legislator on the House Government Oversight Committee.
How You Can Help
The best way that medical marijuana patients can voice support for expansion in your state’s cannabis program is to contact your state representatives and stay abreast of proposed legislation. Here are some tips for corresponding with your elected officials.