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Marijuana Legalization in Minnesota: What Should It Look like?

Has the time come for marijuana legalization in Minnesota?

Opposing legalization is now political suicide

Opposing marijuana legalization for responsible adult use is now political suicide.  That might surprise a few.  But much has changed.

Last month Gallup reported its polling on the issue“Sixty-six percent of Americans now support legalizing marijuana.”

Democracy?  Bipartisan Majorities

And support is bipartisan.  More Democrats support marijuana legalization than Republicans. But “Gallup found last year that a slim majority of Republicans supported legal marijuana for the first time, and this year’s figure, 53%, suggests continued Republican support.”

Pew Research Center reports similar polling. Pew points out that support for marijuana legalization is now double what it was in 2000.

History doesn’t repeat; it rhymes

Students of history draw lessons from the alcohol Prohibition life cycle.  So why did it take so long to end it, even after a majority of Americans opposed it?

The five percent tipping point

Marijuana legalization at the Capitol. Minnesota NORML.
Marijuana legalization at the Capitol. Minnesota NORML.

One answer?

The tipping point was when about five percent of the voters made legalization a wedge issue.

So, single-issue voters disregard political party, and other issues. And they vote for a political candidate solely on the issue of re-legalization.

The alcohol Prohibition repeal soon followed.

Elections matter

In the 2018 general election, two single-issue marijuana legalization parties achieved major party status in Minnesota.  Their candidates for statewide office received more than the five percent threshold to qualify as major political parties.

How many elections are won or lost by less than five percent of the vote in Minnesota?  Opposition to the majority will now has a price: losing.

So the time has come for marijuana legalization. 

But what should it look like in Minnesota?

What should marijuana legalization look like in Minnesota?

The issue is Liberty, not marijuana. 

Ending marijuana Prohibition is consistent with conservative political values.  Less government means more freedom.  And Prohibition is a government bloat program, that destroys lives, destroys our freedom.

We the People have at least equal rights to marijuana as we do to beer and wine.  We know the facts: marijuana is safer than beer and wine. And that fact undercuts the Prohibitionist lie: “marijuana is a dangerous drug.”  Alcohol overdose deaths happen, many times each year. But that cannot happen with marijuana.  Marijuana has no toxic dose level, unlike caffeine, aspirin and many other commonly used, legal drugs.

The three legal models for marijuana 

We’ve seen three models for our legal rights to marijuana, in chronological order:

  1. The Tomato Model
  2. The Prohibition Model
  3. The Beer and Wine Model

The Tomato Model

The Tomato Model of marijuana legalization.
The Tomato Model of marijuana legalization

Under the Tomato Model of marijuana laws, the people have rights to marijuana equal to our rights to tomatoes.  The law lightly regulates tomatoes.  And tomatoes are not a crime to grow, possess, or sell.

The Tomato model means laws the repeal of laws criminalizing it.  So people are free to do with marijuana what they can do with tomatoes.  We call it decriminalization.

This was the state of the marijuana laws before the marijuana Prohibition era began.  And advocates of the tomato model say we should return to this.  Of the three legal models, the tomato model is the most conservative.  So it protects the People’s Liberty most.

The Prohibition Model

The writing is on the wall: Vote Against Prohibition
The writing is on the wall: Vote Against Prohibition

Marijuana Prohibition never would have happened but for the alcohol Prohibition. 

As the alcohol Prohibition was winding down in the 1930s, state by state; the government Prohibition bureaucracy ramped up its anti-marijuana propaganda; much of it with appeals to racism.

And they succeeded.  They tricked the public into funding a massive anti-marijuana government bureaucracy.

But it was a solution in search of a problem.  At the time, the marijuana usage rate was infinitesimal.  Now almost every American has used marijuana at least once, thanks to Prohibition.

Though eleven states have legalized marijuana for adult use, Minnesotans still live under the shadow of marijuana Prohibition

The government still pays police officers to break down doors, toss people’s cars, searching for marijuana.  Then we pay prosecuting attorneys to charge people with marijuana crimes, label us criminals, strip our civil rights, and lock us up.

And enforcement disproportionately impacts African-Americans, despite equivalent usage rates with other ethnic groups. 

But marijuana legalization ends these social evils.

The Beer and Wine model

Wine may not be for everyone, but a crime?
Wine may not be for everyone, but a crime?

Under “the beer and wine model,” we have equal rights to marijuana, as to beer and wine.

The metaphor works because people are familiar with beer and wine.  The law treats marijuana the same as beer and wine in every way.  And it also works because marijuana is safer than beer or wine.  This undercuts opponents’ “public safety” worries.

Wherever the law now says “beer” or “wine,” we can add the word marijuana.  What could be more simple?

Step one – decriminalization

Prohibition Still Doesn't Work. NORML. marijuana legalization.
Prohibition Still Doesn’t Work. NORML.

Of course, we need to delete all criminal laws referencing “marijuana” and “THC.”

This includes deleting both from the Schedules in Minnesota’s Controlled Substances Act. Minnesota Statutes Chapter 152.  And we call this “de-scheduling.”

In addition, we amend the criminal drug laws to delete all references to THC and marijuana.  And most of these are also in Chapter 152.

That is the decriminalization component.  So for supporters of The Tomato Model, that is all we should do.

Step two – regulation

Under the beer and wine model, we not only completely decriminalize, we also enact laws regulating marijuana production and sale.  And here the existing beer and wine laws guide us.

We have equal rights to marijuana as to beer and wine.  So the marijuana laws mirror those regulating beer and wine.

Conservatives and Liberty advocates may prefer The Tomato Model for marijuana laws, as we had before Prohibition.  But here history has another lesson for us.

The legal framework for alcohol was The Tomato Model before the alcohol Prohibition.  But after the repeal of alcohol Prohibition, the laws regulated alcoholic beverages.  We’ll skip the reasons for that.

But, strong public support now exists for re-legalizing marijuana for responsible adult use under The Beer and Wine Model.  The eleven states that have legalized so far have partially followed The Beer and Wine Model.  Marijuana legalization in the Untied States so far means decriminalized and regulated like beer and wine.

What’s the Big Idea?

The Beer and Wine Model is the big idea.  Liberty.  Equal rights.  Civil rights.  Racial justice.  These core American values support the beer and wine model of legalization, far better than the evils of Prohibition.

What should marijuana legalization look like in Minnesota?  The People should have at least equal rights to marijuana as to beer and wine.  With that core principle, the rest takes care of itself.

Details Matter Too

We’ll take a deeper dive into the details of proposed legislation in the future.  But now let’s take a look a few of the important details of re-legalization in Minnesota.

Home Grow is Alright With Me

Even with regulated beer and wine, we have the right to produce beer and wine at home in small batches.  So with the beer and wine model for marijuana, we can legally grow marijuana on our property, in small batches.  But current Minnesota marijuana cultivation laws include nonsense.

A little Minnesota history

Minnesota laws contradict each other when it comes to forms of marijuana.

A rose is a rose.
A rose is a rose.

In the 1970s, the laws favored plant-form marijuana and disfavored “the resinous form.”  Then they thought “the resinous form” more suspect than plant-form.

Minnesota Statutes’ definition of a “small amount of marijuana” retain that distinction. That definition makes an exception for a small amount of the resinous form of marijuana, which currently remains a crime.

And the recent reduction to a Gross Misdemeanor for first-time possession of one quarter gram or less, ain’t much.

Yet in the 2010s, the Minnesota legislature made a Medical Marijuana law favoring “the resinous form,” and disfavoring plant-form marijuana.  So, more recently they thought that the resinous form was safer than plant-form.  And the legislature then approved only the resinous form, for legal use within Minnesota’s original medical marijuana program.

The public policy in these two sets of laws conflict.

A rose is a rose is a rose

The time has come to end the legal distinction between plant-form and the resinous form.  After all, we should treat all forms of marijuana as marijuana.  It’s the same plant, the same substance.  The distinction between forms creates needless confusion

If it made any sense, the legislature would not have contradicted itself.

Repair the Minnesota Medical Marijuana Program

The once and future medical cannabis
The once and future medical cannabis

The lack of plant-form and home grow in Minnesota’s medical marijuana program has undermined it.

Now, Minnesota’s medical marijuana program is super-expensive and out of reach for disabled, sick people.  And insurance does not cover it.

The “concentrates only” approach of Minnesota’s medical marijuana program adds unnecessary cost.  But plant-form is less costly to produce.

The lack of legal home grow for Minnesota medical marijuana patients denies access to medical care to low-income, disabled people.  But they can grow their own, cheap.

Suppliers and distribution

The law of supply and demand is stronger than criminal law
The law of supply and demand is stronger than criminal law

The “bad model” at this point is Colorado, the first state to legalize.  Why?  Because it has a super-expensive seed to retail sale surveillance regimen then meant to reassure and deter diversion.  Now that eleven states have legalized for adult use, this is an unneeded expense.

If retail cost is too high, the underground economy will continue. 

We need to destroy the underground economy using the laws of economics, not failed criminal laws.

Suppliers and distribution.  The existing two medical suppliers and existing legal hemp growers are places to look for beginning suppliers.  With the recent federal farm Bill’s adoption, the hemp form of cannabis is now legal to possess under Minnesota and federal law.

Over-taxation

In some states, over-taxation is a problem.  If retail cost is too high, the underground economy will continue. 

The goal of legalization should be to underbid the black market, to end it and its crime.

Equal rights, and justice:  The “beer and wine model” comes to the rescue again.   We should not tax marijuana more than the beer and wine.  The “sin tax” on beer and wine is already sky-high.

Transitional issues

What are transitional issues?  These issues are big problems as we transition from a Prohibition Model, to a Beer and Wine Model of marijuana regulation.   But we expect that ten years after legalization many of these issues will subside.

There are many transitional issues.  So let’s mention a few.

Automatic record voiding of convictions, and expungement

Minnesota’s legalization law should include automatic vacating of convictions and public records expungement.

Today, most people who qualify for criminal record expungement never file a Petition for Expungement in court. The cost in time and money is an effective barrier.

The law should automatically vacate every criminal conviction related to marijuana or THC; and expunge those public records.  So we should remove the burden from the victims of Prohibition and put it on the government.

Many do not know that a typical Minnesota court expungement Order will not fully restore civil rights under federal law.  The conviction itself must be undone, vacated and dismissed, as if never happened.  We must do that, in order to fully restore all civil rights in a way the federal laws will recognize.  A simple sealing of public records will not fully restore civil rights.

Amnesty for Drug War P.O.W.s

We should immediately release all people locked up for any marijuana or THC crime, from jail or prison.

Force the Minnesota Department of Corrections to follow the law

Thomas C. Gallagher, Minnesota NORML. marijuana legalization.
Thomas C. Gallagher, Minnesota NORML Member

When a judge sentences a person to prison, she strips their civil rights; and commits them to the Minnesota Department of Corrections (DOC).

The Minnesota DOC “policy” is to revoke supervised release for legal medical marijuana users.

We must stop this Minnesota DOC policy and practice.

We need a statute to reign in this Minnesota DOC violation of existing Minnesota law.

Prohibtionist talking points

Despite majority support for legalization, a vocal minority repeats the same old false talking points to prop up Prohibition laws.  For example, Is DUI-Marijuana a reason not to legalize in Minnesota?

What do you think?

Drop your comment below.

About the author

Gallagher Criminal Defense logo sm

Written by Thomas C. Gallagher.  Gallagher has worked on re-legalization issues for over 30 years.

He is a former Chair of Minnesota NORML and is founding Board Member, since 2011.

Thomas Gallagher is a criminal defense lawyer in Minneapolis with a heavy portion of marijuana defense cases.

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