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18 Ohio St. J. Crim. L. 99 (2020-2021)
Reconsidering Federal Marijuana Regulation

handle is hein.journals/osjcl18 and id is 107 raw text is: Reconsidering Federal Marijuana Regulation Paul J. Larkin, Jr.* ABSTRACT The Controlled Substances Act (CSA) prohibits the cultivation and distribution of marijuana by placing it in a category (Schedule I) reserved for drugs that are unhelpful and dangerous. The CSA has remained unchanged since its birth, but numerous states have changed their penal code and now allow the sale of marijuana for medical or recreational purposes. The current legal status of cannabis is therefore nonsensical because, try as they might, the states cannot grant private parties a license to violate federal law. Congress needs to address that problem. In so doing, Congress should recognize that the CSA approached this problem from the wrong direction. People use drugs for medical or recreational purposes, and each one requires a separate regulatory scheme. Medical Marijuana Use: For more than eighty years, the nation has entrusted the Commissioner of Food and Drugs with the responsibility to decide whether a particular substance is a drug and, if so, whether that drug is safe and effective and therefore can be sold throughout the nation. Those decisions are neither moral nor political ones. They require the scientific expertise of professionals in the fields of medicine, biochemistry, pharmacology, and the like, not the legal knowledge of lawyers or the ethical sensibilities of the electorate. Congress should leave to the judgment of the Commissioner the decision of how federal law should regulate medical-use marijuana. Recreational Marijuana Use: The disparities between federal and state law demand reconciliation. Congress and the president should assume that responsibility and, in so doing, should consider a number of relevant factors: What effect would legalization have on marijuana use by adults and juveniles? What percentage of people who engage in long-term use John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation. The views expressed are my own and should not be construed as representing any official position of The Heritage Foundation. I want to thank MariBeth Andresen, Douglas Berman, Lucas Drill, Dr. Rob- ert L. DuPont, Heidi King, John G. Malcolm, Corinne Shea, Katherine C. Skilling, Charles G. Stimson, William Vodra, Charmaine Yoest, and Patricia J. Zettler for helpful comments on an earlier draft of this Article. Cooper Conway, Alexis Huggins, and Marcos Mullin provided valuable research assis- tance. Most importantly, I want to thank the late Professor Mark A.R. Kleiman. Mark died before I put pen to paper, but he influenced every word in this article. Wherever he is, I hope that the people there pay as much attention to what he says about drug policy as I have. They will be far better for it. 99

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