Lessons from Prohibition: Legalize Marijuana Now

On October 2, 2020, our law school class, “Marijuana and the Law,” had the pleasure of listening to a guest lecture by Kate Bischoff, a Minnesota employment attorney and consultant with a national reputation. During the class, we discussed potential pitfalls that employers encounter when grappling with issues of marijuana legalization and how employers may best protect themselves without infringing on their employees’ rights.

This discussion prompted a question: why are employers treating marijuana differently than alcohol (in marijuana-legal states) with respect to issues of employment? There is no widespread legislation that prevents employees of federal contractors from enjoying marijuana off the clock, yet alcohol affects the brain and body more severely than marijuana, and can certainly inhibit proper safety protocol in the workplace.[1]

All but eight states currently have some level of marijuana legalization.[2]  Because marijuana is still federally illegal, however, federal contractors are still under the authority of the Drug Free Workplace Act,[3] which mandates that employees may not use substances, including marijuana, even in legal states. This begs the question of what is taking so long to amend federal law to allow for the full legalization of marijuana and release employers and employees from restrictions imposed by a government that still believes in the “war on drugs”? In fact, it was not that long ago that federal law prohibited Americans from consuming alcohol – a drug more harmful to public health and safety,[4] yet marijuana remains illegal.

The failure of American Prohibition is a mistake that we should not repeat with marijuana. Reasons for why prohibitionists organized against the public consumption of alcohol included perceived morality, religion, and public health.[5] Despite their crusade, Americans neither stopped consuming alcohol nor did prohibition achieve any of its goals. Prohibition merely succeeded in higher crime rates and public frustration.

The same can be said for marijuana prohibition, proponents of which come from eerily similar perspectives, with echoes of Puritanical fright at the thought of Americans using drugs they’re already using echoing through the halls of legislatures nationwide. It is time for science and logic to be applied as to the decriminalization, legalization, and regulation of marijuana at the federal level, as it was for the ending of alcohol prohibition in the early 20th century.

[1] Joelle Klein, Which is Worse? Alcohol or Marijuana?, UC Health, (Last Visited October 19th, 2020) https://www.uchealth.org/today/which-is-worse-alcohol-or-marijuana/

[2] See DISA, Map of Marijuana Legality by State (Last visited October 19th, 2020) https://disa.com/map-of-marijuana-legality-by-state

[3] 41 USC § 8102

[4] Thayer, R. E., York, Williams, S., Karoly, H. C., Sabbineni, A., Ewing, S. F., Bryan, A. D., and Hutchison, K. E. (2017) Structural neuroimaging correlates of alcohol and cannabis use in adolescents and adults. Addiction, 112: 2144– 2154. doi: 10.1111/add.13923.

[5] Jack S. Blocker, Jr., PhD., Did Prohibition Really Work? Alcohol Prohibition as a Public Health Innovation, Am J Public Health. 2006 February; 96(2): 233–243.

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