Cannabis’s Unlikely Friend in the Fight for Reform: The Courts

The cannabis scene in Italy is changing quickly. As many as 1,000 shops selling low-THC, high-CBD products have appeared in major cities over the past few years, but cannabis is still definitely illegal: While possession is decriminalized and is punishable by a fine and some paperwork, sales can result in a six-year prison term and a 75,000 euro fine.

But let’s say you want to grow a little pot at home. That’s apparently now OK, though you might not find permission outlined in any law on the books. Permission to cultivate was instead granted recently by the country’s Supreme Court, which ruled on Dec. 19 that “small amounts grown domestically for the exclusive use of the grower” are perfectly acceptable.

As Reuters reported, the ruling apparently went unnoticed for more than a week before it touched off some intense (and maybe a bit histrionic) debate among lawmakers on Friday. (The left is good with it, the right hates it, the middle is a little worried about going too fast!) But what makes the ruling the hook for a trend piece is the fact that it’s the latest in a recent string of drug-policy reform victories won via the courts — which is maybe how it always should have been.

Last year, it was Mexico’s Supreme Court that ruled that the country’s ban on recreational cannabis was unconstitutional, violating the very document upon which the state is based. In that instance, it was the fifth such ruling on cannabis, which in Mexico means a legal precedent is created upon which lawmakers are compelled to act. In the cannabis case, when those lawmakers didn’t act, choosing instead to dither and stall, it was the same Supreme Court that ordered lawmakers to act and amend national law to explicitly allow adults to possess cannabis without fear of prosecution.

How or why did the courts do this? In Mexico, the courts were ruling on a series of legal challenges brought by citizens and argued by lawyers. This is how the law is supposed to work — and this is how it’s worked, to some degree, in the United States, though without any epochal, Brown vs. Board of Education-worthy revolutions on the cannabis question.

Judges are given some limited discretion as to how to interpret the law, but have significant leeway via an ambiguous but very useful clause: “in the interest of justice,” a sort of catch-all, “f*ck it, we’re out” emergency exit that allows either a prosecutor or a judge to end a prosecution. But even if a conviction in a cannabis case was won, a judge still had leeway to punish — or not punish — the offender accordingly. It was only after the imposition of mandatory minimums that courtrooms became halls of horrors for cannabis defendants.

With a handful of exceptions, in the United States, legalization and medical marijuana access have been won with the popular vote, with ballot initiatives. It was this way because certain lawmakers among us decided that demonizing and prohibiting (certain) drugs and disenfranchising and imprisoning their users was an effective technique to grab and hold onto power. And when the laws weren’t punitive enough, or when judges were too lenient, lawmakers took away the courts’ discretion with mandatory minimums, baking the punishment into the statute outlining the crime. There are many examples of justices who ruled against what a reasonable person might view as the just cause because doing so would violate a law they nonetheless deplored.

However, at least recently, what the courts have done is interpret voter or legislator-initiated laws to mean that citizens are generally allowed more cannabis access than law enforcement or regulators allowed. In Colorado, the state Supreme Court ruled that drug-sniffing dogs can’t be deployed until there’s suspicion of a crime — a dog’s mere alert is not enough.

And a federal appeals court ruled that a case challenging cannabis’s position in the Controlled Substances Act can proceed — a procedural victory, but validating nonetheless. Many strict rules imposed on Florida medical marijuana patients and businesses by the state legislature or state regulators, including a ban on smoked cannabis, have been tossed out by the courts. Dabs and other cannabis concentrates were made explicitly legal by that state’s Supreme Court.

What’s going on here? Is the bench stuffed with pot-loving freaks? Unlikely — just as unlikely as a world in which judges are bending to the will of the people.

In many jurisdictions in the United States, judges are political appointees. Where they’re not, they’re elected, but in either case, it’s exceedingly difficult to remove a judge once they’re seated. You could make the argument that judges are inclined to rule towards cannabis reform because that’s what the people want, but a judge legislating from the bench might find themselves the target of a recall effort or ethics complaint — and no amount of challenges have managed to undo federal prohibition, which remains Congress’s will and thus the law of the land.

At the same time, when the issue has arisen, it’s the courts that interpret the will of the voters and the will of the people. If voters in Florida want legal medical marijuana, they probably mean they also want to smoke it, because that’s what people do. If medical cannabis is legal in Arizona, and the voter initiative doesn’t say “but not concentrates,” it means medical cannabis concentrates are legal. In this way, the courts aren’t so much a guiding light but a helping hand — and that’s more than can be said for some lawmakers.

TELL US, how do you think cannabis should be legalized?