The Coming Anti-Drug Backlash

Pot smoke in public may prove to be the drug warriors’ best friend

Photo by Dylan Fout on Unsplash

In the past four months, I’ve been to Philadelphia, New York City, Boston, and Washington DC. These cities are all very different, each with their own distinct accents, architecture, culture, and feel. But they all had one thing in common, evident from the moment I stepped out of my car or off of the train. The reek of pot smoke. It was everywhere, a constant olfactory companion. It’s no different where I live in New Jersey. I can scarcely go anywhere in public without the sense that a family of very small skunks has taken up residence in my nasal cavity. I’m not the only one who’s noticed this.

Marijuana has been increasingly decriminalized or legalized in states and cities across the US. This is a straightforwardly good thing. As I have written, I support the total legalization of all drugs across the board. It’s a matter of freedom and personal liberty. Just as the prohibition on alcohol was wrong and destructive, the War on Drugs has been a disaster. But also just as with alcohol, ending prohibition never meant permitting widespread public consumption and intoxication. The freedom to toke up in one’s own home is not the freedom to belch plumes of weed smoke into other people’s faces in public. Yet functionally, it has become so. Tremendous progress has been made in beating back the War on Drugs, but the data shows every indicator that the failure to maintain the distinction between private legality and public use has primed Americans for a backlash.

It took many years of work gradually changing minds and coaxing bills and amendments through legislatures to begin undoing America’s unjust drug laws. After Oregon decriminalized marijuana in 1973, subsequent efforts in a number of other states in the 1970s and 80s passed but were later repealed or allowed to expire. Drug policy reformers realized they needed to walk before they could run. A more achievable first step was legalizing cannabis for medicinal use. California was the first to do so in 1996. More states followed. Doctor-prescribed pot gave way to decriminalization, and then to legalization. As of now, 24 states, plus Washington DC and Guam, allow recreational cannabis use, and 38 states plus DC allow medicinal marijuana, not to mention the many cities across the country that have decriminalized possession in small amounts. This list of states grows every year, most recently with Ohio voting to legalize cannabis recreationally in November 2023.

Changes in law have led to changes in law enforcement. FBI crime data shows that the number of yearly arrests for marijuana possession fell from more than 590,000 in 2010 to a little over 200,000 by 2022. Over this same span, annual possession arrests for all drugs fell by 36 percent. The medicinal use-to-legalization process is also well underway with psychedelics, including MDMA. To anyone who believes in civil liberties, individual rights, patient rights, or criminal justice reform, these past couple decades have been one incredible victory after another. Recent events, however, are putting these gains at risk.

Source: Business Insider.

In 2020, Oregon once again led the way by becoming the first state to decriminalize a broad range of drugs beyond marijuana with Measure 110, a ballot initiative that passed with over 58 percent of the vote. But as the rate of arrests and incarceration for drug use fell, the matter of public consumption rose sharply and went unaddressed. The Associated Press described what transpired as an “explosion of public drug use.” Other outlets reported on a pronounced surge in addicts smoking or shooting up hard drugs out in the open, lying strung out on sidewalks, and congregating in tent encampments.

After three years of lawmakers and law enforcement failing to differentiate private decriminalization from public consumption, Oregonians are having second thoughts. Recent polling shows that given the choice between keeping Measure 110 as is or repealing it completely, 56 percent favor repeal. Given the choice between keeping 110 as is and repealing just the parts that decriminalize drug possession, 64 percent support partial repeal. Witnessing this fiasco in Oregon, other states that were once poised to follow the Beaver State’s lead, such as Washington State, are now reconsidering.

What happened in Oregon is simply a more extreme version of what’s already happening across the country. Everywhere that drugs become decriminalized or legalized, there is a dramatic drop not merely in drug possession arrests, but also in arrests for public use. Every state or city that lifts the ban on weed turns into an open air pot den. This isn’t just the bugbear of snooty commentators. New York City Mayor, Eric Adams, a Democrat, remarked, “The number one thing I smell right now is pot. It’s like everybody’s smoking a joint now.” Complaints and concerns from Minnesota to New York to DC have been getting louder. In fact, over half of Americans find the pervasive smell of marijuana in public a problem.

Thankfully, the support for the legalization of cannabis is so far holding steady, but the data shows some troubling signs. 52 percent of people in 2023 believe we are losing ground on handling drug problems, up from 30 percent in 2019. 46 percent say they are worried “a great deal” about drug use, up eight points from just last year. The two primary drivers of these shifting perceptions are media coverage and people’s everyday experience — both of which are magnetically pulled toward the growing issue of public drug use. Marijuana activists have long advocated that we should treat weed the same way we treat alcohol: legalize it, regulate it, and tax it. It’s time we began taking that seriously.

33 states already classify THC, the active compound in cannabis, in the same category as alcohol when it comes to drunk driving. 14 states have zero tolerance laws for driving with THC in your system. This establishes a workable template for how to treat weed. The problem is, other states, such as New York, place pot joints in the same category as cigarettes as opposed to alcohol, which is a problem specifically for public use. 22 states allow weed to be smoked in public, either totally or in designated areas. The rest of the states don’t allow it, though in many, these laws go increasingly unenforced. In Seattle, Washington, one of the most progressive cities in the US, a resounding 60 percent of respondents supported the police “arresting people for using illegal drugs in public.” The wording of this poll excludes marijuana, which is not illegal in Washington state, however it demonstrates a familiar pattern reflected both in the data and in our day-to-day lives. Most Americans oppose the War on Drugs, but they also don’t want drug use to be permitted in public places, especially around kids.

There is no question that the ongoing opioid epidemic and fentanyl crisis pose an infinitely graver problem in terms of social breakdown, or the perception of such, than cannabis ever could. But the daily encounters Americans now have with pot smoke in public are a constant reminder of what reforming drug laws has looked like in practice, and offer a glimpse at what we can expect as drugs continue to be decriminalized and legalized. It doesn’t have to be this way.

There is no iron law of the universe dictating that we cannot legalize cannabis and other substances while also policing public use just as we did in those Dark Ages known as the 1990s. Indeed, that may be the only way to sustainably advance drug reform policy while protecting the reforms we’ve already achieved — and there are efforts underway to do so. The primary obstacle they face is an activist class who have rightly shined a light on the racism of drug laws, but wrongly conflate the issue of public drug use with the War on Drugs. Disparities in the rates of black Americans who are arrested for doing drugs in public versus white Americans are treated as uncomplicated examples of racism. Rather than trying to address the root causes underlying these disparities, many simply advocate dismantling the rules altogether, as we saw with the Black Lives Matter and Defund the Police movements.

The backlash against drugs has not yet begun in earnest. But the canary in the coal mine is singing its little lungs out. Just as Defund the Police blew up in activists’ faces and deeply damaged their cause, tying drug legalization to the toleration of ubiquitous public drug use could well ignite a Drug War 2.0. If we force the electorate to choose between those two extremes, many may choose to roll back the clocks. Victory against the War on Drugs is finally on the horizon. Our continued failure to separate private legality from public consumption is putting decades of hard work at risk.

See also: “In Defense of Drugs”

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