tHe War on MariJUana in BlacK anD WHite

that establishments licensed to sell
marijuana are located at least 1,000 feet
from schools, playgrounds, and parks,
and do not display marijuana in a way that
is visible to the public; limits availability
to stores that sell no products other
than marijuana; prohibits public use and
display of marijuana; prohibits sales to
minors; restricts advertising generally and
bans advertising in places frequented by
youth; 149 and establishes a standard for
driving under the influence of marijuana
(i.e., active THC content) that would
operate like the alcohol DUI standards.
State agencies can also regulate the
numbers of stores per county, operating hours, security, quality control, labeling, and
other health and safety issues.
Marijuana legalization through a tax and regulate system should not mandate state
employees to grow, distribute, or sell marijuana, as such conduct would require state
officials to violate federal law and thus likely be preempted by federal law (the Controlled
Substances Act, 21 U.S.C. §801) as it now stands. But legalization laws can require
state officials to perform administrative, ministerial, and regulatory duties necessary to
implement and oversee state laws and regulations.
As a society, we permit the controlled use of alcohol and tobacco, substances that
are dangerous to health and at times to public safety. We educate society about those
dangers, and have constructed a system of laws that allow for the use and possession
of these substances while seeking to protect the public from their dangers. There is
no reason, particularly given the findings of this report, that such a system cannot and
should not also be constructed for marijuana use and possession.
ii. depenalize Marijuana Use and Possession
If legalizing marijuana through taxation and licensing is unobtainable, states can take
significant steps toward reducing marijuana arrests and their damaging consequences
149 When drafting legalization legislation to regulate the possession and sale of marijuana, proponents should be cognizant of
federal — and often similar state — laws regarding drug-free school zones, see 21 U.S.C. § 860(a), which enhance penalties for violating
federal drug laws if such violations occur within 1,000 feet of a public or private elementary, vocational, or secondary school or a public
or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority. Jurisdictions
should also be aware of local laws regulating liquor sales, advertising, and licenses, as they may provide a helpful if not necessary guide
to regulating marijuana sale, advertising, and licenses.
112 | The <strong>War</strong> on Marijuana in Black and White
If legalizing marijuana
is unobtainable, states
can significantly reduce
marijuana arrests
and their damaging
consequences through
depenalization.
Decriminalization is a
viable third option.