Legalization or Decriminalization: Pros and Cons of Marijuana Policy Proposals in Louisiana

The Louisiana legislature continues to move forward in a truncated session due to COVID-19 with just a few cannabis bills on the agenda. Hopefully there will be a special session to deal with the bills that could not be heard in this abbreviated session. Meanwhile, many are wondering why bills that could help create jobs, regulate a robust underground economy, reignite a moribund tourist industry, and provide much needed local and state tax revenues from cannabis are not being heard. There are many reasons behind these sentiments, including an evangelical conservative majority in the legislature coupled with law enforcement and District Attorneys who have become dependent on creating a revenue stream based upon the unequitable enforcement of prohibition. These are the usual suspects we have been rubbing up against since I started advocating at the Capital in 2014.  But these days, some of the opposition comes from within the cannabis community itself. 

First let us define what we mean by ‘legalization’. A legalized, taxed and regulated cannabis marketplace would enable and regulate the production, distribution, testing and sale of cannabis and cannabis products through licensed businesses. The state would create the framework of this industry as well as rules and regulations. ‘Decriminalization’ is when possession of cannabis (usually one ounce or less in one package) is a civil fine similar to jaywalking (which is not illegal in Louisiana) – with no arrest, no jail time, and no criminal record. In Louisiana today, we have yet to legalize cannabis statewide, and decriminalization is limited to New Orleans and Baton Rouge. Currently, the Louisiana medical cannabis program is ranked 32nd out of 33 states with medical programs – mostly due to our limited methods of delivery (only Louisiana and Minnesota prohibit cannabis in its raw or natural state). To varying degrees, all of the above are superior to prohibition, but with pitfalls associated with each of the policies.

In theory, decriminalization appears to be the most socially just of these policies. It recognizes that cannabis is currently being used in the community and that the enforcement of prohibition has always been inequitable in nature. (There are many fewer arrests around Tulane University as compared to Central City.) In a perfect world, laws would be enforced the same across all communities, but we do not live in a perfect world. Decriminalization does limit the damage that prohibition can cause in the communities that have always endured the brunt of the drug war. CommonSenseNOLA (the organization I founded and lead), in addition to other stakeholders such as the Vera Institute for Justice, fought hard for a year and half to codify decriminalization for New Orleans. Yet we still see a huge racial disparity in the number of summons being issued. In a state addicted to criminalizing cannabis users, these decriminalization ordinances limit the damage that state law inflicts upon its citizens. 

In addition to that, there were still over one thousand cannabis arrests in New Orleans last year (roughly 100 for possession alone, and 988 arrests in conjunction with possession of another illegal drug or firearms). The only way to curb these arrests is through legalization, because the criminal justice system still sees cannabis as a prohibited substance. This, I believe, is more an indictment of law enforcement than of the plant itself. Another pitfall of decriminalization is that production and sale is still a felony. Cannabis does not just appear out of thin air; people need to procure or grow the plant. When Illinois legalized last year they made a brilliant compromise in decriminalizing the personal growth of under five plants with a $50 fine. With decriminalization, consumers do not usually know how or where the plant was grown and if there are heavy metals, mold or pesticide present in the plant. There is no legal framework to keep cannabis out of the hands of children. Twenty-seven states have adopted this policy. In the remaining states, many cities and local governments have adopted decriminalization as policy – in Louisiana, only New Orleans and Baton Rouge. Despite the pitfalls of decriminalization, this policy can lessen the consequences of an outdated public policy.

Countless articles have been written about the positive side of legalization, in this magazine and so many others. The truth is that we will need a ‘something new’ to lure people back to the Crescent City in the aftermath of COVID-19. Cannabis tourism has helped many states boost their tourism and hospitality industries, and it should play a part in turning our situation around. In fact, it was our jazz musicians who spread the plant to middle America and the East Coast one hundred years ago. Now, we have been left out of one of the fastest growing industries in the United States. But as we have seen legalization skyrocket nationwide over the last eight years, we have seen some unintended consequences. 

In states that have taxed this plant too high, the underground economy continues to thrive. Too many people who were part of genetic cultivation and plant growth have been left out because they had been arrested in the past (see the inequitable enforcement of prohibition’s ugly hand at work again.) We see primarily Caucasian businessmen cornering the market – leaving out people of color and women. As our economic model in the United States has devolved to favor large corporations over startups, we see this in the cannabis industry as well. This trend is more of an issue with how our economy has evolved than with the nature of the plant itself. Illinois has dedicated part of their tax revenue to help begin to  rectify the sins of the drug war- but at this point, they are an outlier. Maine (for now), Vermont (by choice), and the District of Columbia (because of federal interference) have enacted models for legalization that do not allow commercial sales but allow for personal grows.      

It gets interesting when medical cannabis advocates oppose a legal adult use market. In some cases, they have concerns that medical programs will be negatively impacted by an adult use market. In those states that are used as an example, the flower part of their program basically subsidized products and methods of delivery that were not widely used, but used by some patients – especially pediatric patients. A few advocates have become lobbyists for the companies that produce products here in Louisiana. Some just feel that what we have is as good as it will get, and set to work on glacially slow incremental steps over the next five years. But to compare the interests of Louisiana patients to those of patients in states that have had robust medical programs for decades is misguided. This is apples and oranges. In some of the legal states, patients lost some rights when a legal marketplace took hold. In some states, personal growers faced limitations that were not present before legalization. I hear this from patients I know in California. Yet each patient/person can still grow six plants. I find this to be a moot argument in Louisiana, where no one has had that legal ability in almost one hundred years. 

The duopoly created by the state of Louisiana (as well as the limit on pharmacies) is the reason that we have some of the most expensive cannabis in the world. Another reason we only have 1500 patients (as compared to 53,000 in Arkansas) is the ban on flower (raw cannabis), which Sheriffs and District Attorneys have fought vehemently. Raw cannabis costs roughly 1/6 the price that tinctures do, yet that is still the method of delivery approved by our state. There are more methods coming one day including dissolvable tongue strips and an inhaler similar to what asthmatics use. There are people who think that cannabis should look like pharmaceuticals. Input from patients has indicated to me they prefer the way the Creator made this plant rather than some Pfizer wannabe on the bayou. Give the people of Louisiana the option as to what method of delivery works best for them.  As a compromise, we could add sales tax to flower as a non-preferred delivery method, or even allow patients home grow rights. The real irony is when legislators preach free market economics and personal freedom when it comes to God, guns, and public education, and then oppose the very ideals they preach when it comes to cannabis. And that irony is not lost on many.

In the end, I believe that Louisiana will continue to kick the can down the road on ending prohibition in our state. Too many entrenched interests have too many fiscal incentives to continue our current policy. As long as prohibition continues to be enforced mainly upon the poor and working classes, especially in communities of color, those in power will not see an incentive to move forward. The powerful evangelical element in our legislature has always made it a priority to criminalize activities it perceives as sinful (although they may want to read Genesis 1:29), in spite of the fact that those policies simply make those activities more dangerous – without serving as an effective tool to actually curtail those activities. Louisiana will wait until federal prohibition ends. At that time, large companies will sell their product across state lines and the incentive to create an in-state industry will be hamstrung by economies of scale. We may be able to sustain a small boutique cannabis industry, but then again, Bacardi was never threatened by local distilleries making local rum – because they still control a vast majority of the market. Unfortunately, it looks as though Louisiana will continue to shoot itself in the foot when it comes to cannabis in an attempt to put the genie back in the bottle – a battle we lost years ago.



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