Massachusetts – Vote “Yes” on Question 4

To my friends who are registered to vote in the state of Massachusetts, you have an opportunity to get bad law out of the Massachusetts Code. If it makes a difference, here’s my take on why you should vote “Yes” on Question 4, which “would permit the possession, use, distribution and cultivation of marijuana in limited amounts by persons age 21 and older, and would remove criminal penalties for such activities.”


Marijuana criminalization occurred during the twentieth century after a protracted campaign that resulted, for a time, in alcohol prohibition as well. Though America endured the latter for fifteen years before ending that misguided effort (repealing the Eighteenth Amendment in passing the Twenty-First), prohibitionists were not done trying to target conduct of which they morally disapproved. Thus, the federal government enacted the Marihuana Tax Act of 1937 (50 Stat. 551), requiring anyone growing or selling cannabis to pay a tax before doing so. When the Supreme Court struck down parts of this Act for violating the Fifth Amendment’s protection against self-incrimination, Congress responded shortly thereafter by enacting the Comprehensive Drug Abuse Prevention and Control Act of 1970 (84 Stat. 1236), of which the Controlled Substances Act (CSA) was a part. As it stands today under the CSA, marijuana is regulated to the same extent as drugs like heroin, LSD, ecstasy, and peyote. That list reminds me of something….


Trouble is, marijuana criminalization has been from the start essentially racist in nature. In support of the Marihuana Tax Act, Harry Anslinger – at that time, the Commissioner of the Federal Bureau of Narcotics – testified that

the natives of the Malay Peninsula have been known, while under its influence, to rush out and engage in violent and bloody deeds, with complete disregard for their personal safety . . . . Those who are habitually accustomed to use of the drug are said to develop a delirious rage after its administration, during which they are temporarily, at least, irresponsible and liable to commit violent crimes. . . . It is said that the Mohammedan leaders, opposing the Crusaders, utilized the services of individuals addicted to the use of hashish for secret murders.

Apparently the man never interacted with the substance – “delirious rage” does not describe the behavior of anyone I have ever witnessed under the influence of marijuana. More like . . . .

More to the point, Anslinger is also reported to have stated:

There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing, result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others . . . the primary reason to outlaw marijuana is its effect on the degenerate races . . . Marijuana is an addictive drug which produces in its users insanity, criminality, and death . . . Reefer makes darkies think they’re as good as white men.

A real gem of a human – wonderful we followed his advice as a country.

As early as the 1970s, however – right on the heels of enactment of the Controlled Substances Act – some federal officials wanted to go a different way. In 1972, the National Commission on Marijuana and Drug Abuse (also known as the Shafer Commission) recommended after extensive research that “possession of marijuana for personal use no longer be an offense, [and that the] casual distribution of small amounts . . . for no remuneration, or insignificant remuneration, no longer be an offense.” Nixon, sounding like Harry Anslinger, rejected the recommendation:

You know, it’s a funny thing, every one of the bastards that are out for legalizing marijuana is Jewish. What the Christ is the matter with the Jews . . . . What is the matter with them? I suppose it’s because most of them are psychiatrists. . . . Dope? Do you think the Russians allow dope? Hell no. . . . You see, homosexuality, dope, uh, immorality in general: These are the enemies of strong societies.That’s why the communists and the left-wingers are pushing it. They’re trying to destroy us.

Marijuana thus remained criminalized, as it is to this day in most states.


So the criminalization of marijuana  was largely based on irrational and contrary-to-fact justifications, but its prohibition endures into the present, largely thanks to cultural prejudices and social inertia. Marijuana is probably far less dangerous than alcohol, and statistical data suggests it causes none of the dangerous (or deadly) secondary effects that alcohol consumption often does. Yet we permit consumption of the latter (indeed, we celebrate it in commercials and advertisements) while we arrest over 500,000 people every year for mere possession of the former – more than all other violent crimes combined.

Sadly, but unsurprisingly, a grossly-disparate number of these arrests are of minorities:

Over the course of their lives, white people are more likely than Black people to use illicit drugs in general, as well as marijuana . . . . Data on more recent drug use . . . shows that Black and white adults use illicit drugs other than marijuana at the same rates and that they use marijuana at similar rates. Yet around the country, Black adults are more than two-and-a-half times as likely as white adults to be arrested for drug possession. In 2014, Black adults accounted for just 14 percent of those who used drugs in the previous year but close to a third of those arrested for drug possession.

One does not have to conclude that police officers are racist to nonetheless recoil at such disparities. Nearly half of the US population has consumed – and, by definition, possessed – marijuana at some point or another in their lives. Police officers are more likely to make arrests in places where they are present and thus likely to encounter individuals in possession of marijuana, which tend to be hard-hit areas of inner cities where minorities disproportionately live. So long as we task them with enforcing the misbegotten War on Drugs, these disparities will continue. And the consequences of one arrest can be devastating for life, perpetuating the cycle of poverty and marginalization experienced by so many individuals within these communities. Never mind that minor altercations with law enforcement can turn deadly, driving narratives that exacerbate tensions between Americans and law enforcement. Removing unnecessary criminal law from the code takes away the basis for enforcement actions that drive such disparities and lead to such deaths.


Question 4 does not open Pandora’s Box to allow people to start selling blunts out of streetcars or vending machines. It reasonably balances giving localities leeway to regulate the sale and distribution of marijuana while respecting the rights of individuals to go about their business without fear of detention or arrest for possession:

The proposed law would authorize persons at least 21 years old to possess up to one ounce of marijuana outside of their residences; possess up to ten ounces of marijuana inside their residences; grow up to six marijuana plants in their residences; give one ounce or less of marijuana to a person at least 21 years old without payment; possess, produce or transfer hemp; or make or transfer items related to marijuana use, storage, cultivation, or processing. . . .

The proposed law would authorize cities and towns to adopt reasonable restrictions on the time, place, and manner of operating marijuana businesses and to limit the number of marijuana establishments in their communities. A city or town could hold a local vote to determine whether to permit the selling of marijuana and marijuana products for consumption on the premises at commercial establishments.

Additionally, Question 4 will provide a new revenue stream by taxing the sale of cannabis or cannabis paraphernalia: “The proceeds of retail sales of marijuana and marijuana products would be subject to the state sales tax and an additional excise tax of 3.75%. A city or town could impose a separate tax of up to 2%.” Though I much prefer reducing deficits by cutting spending rather than raising taxes, these new revenues could help Massachusetts, given the state recently experienced a $300 million shortfall. And a consumption tax is preferable to most other modes of taxation. At the very least, voting Yes on Question 4 will help cut spending, since there will no longer be a reason for State Police and the National Guard to dispatch helicopters and raid squads to seize an individual plant from an 81-year-old grandmother cultivating the plant to ease arthritis- and glaucoma-related pain.


I am of the firm belief that the criminal code should only extend to those behaviors that cause harm to others, or have an appreciable consequence of causing harm to others – reckless endangerment, defamation, theft, fraud, assault, murder, and other such crimes that we think of as malum in se. I do not believe that the criminal code should extend far beyond such conduct, and certainly not so far as to reach consensual, non-violent, non-harmful conduct engaged in by adults. This is especially true when that behavior, when criminalized, is enforced in a clearly disparate way, causing long-term deleterious effects on communities already struggling with issues of homelessness, joblessness, poverty, marginalization, etc.

The criminalization of marijuana violates all of these fundamental principles, and this unfortunate chapter in our nation’s history should be brought to an end. Massachusetts has already taken a step towards doing so, having decriminalized minor possession of marijuana in 2008. It remains a civil infraction, however, and other related conduct remains criminalized, so all the problems and risks attendant with criminalization remain true under the current state of the law, since law enforcement still has reason to investigate and detain individuals who they suspect are in possession.

Voting Yes on Question 4 does not require you to endorse consumption of marijuana or celebrate it. You can still oppose the consumption of marijuana and believe that it has some negative effects. All Voting Yes on Question 4 requires is that you accept, like the Boston Globe, that “not all risky behaviors must be illegal” and that moral disapproval alone is a very unstable – and regularly abused – basis for imposing sanctions on certain conduct. And a Yes vote on Question 4 will be one more step in bringing about an end to this nation’s failed and misguided War on Drugs, which has precipitated so many unnecessary expenditures and has ruined (and ended prematurely) so many lives. So, to my Massachusetts friends voting this November, I encourage you to think about the issue and vote Yes.

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