Constructing a 'Creative Reading': Will US State Cannabis Legislation Threaten the Fate of the International Drug Control Treaties?

• Author: Tackeff, Michael

TABLE OF CONTENTS 1. BACKGROUND: INTERNATIONAL DRUG 249 CONTROL AT THE CROSSROADS A. The International Drug Control 255 Treaty Regime B. The Single Convention, the 1972 Protocol, 258 and the 1988 Convention C. US Federal Law Applied to Cannabis 261 II. ENFORCING & ALTERING THE DRUG TREATY 265 REGIME A. Introduction 265 B. Limitations with the Current Treaty System 265 C. Assessments of the Treaty System 269 & the Limitations of Such Surveys D. The Path Forward 270 III. HUMAN RIGHTS PRINCIPLES SHOW THAT 272 THE INTERNATIONAL DRUG CONTROL TREATIES ARE OUTLIERS IN THE INTERNATIONAL SYSTEM A. Introduction 273 B. Human Rights as a Counterbalance 278 to the Drug Treaties C. Private & Public Use 279 IV. A TRUE SAFETY VALVE? A SOVEREIGNTY 283 ARGUMENT FOR PROSECUTORIAL DISCRETION UNDER THE INTERNATIONAL DRUG CONTROL TREATIES A. Sovereignty & Treaty Enforcement 283 in a Federal System B. The History of State-Level Cannabis 288 Regulation & Differentiation as Productive C. Prosecutorial Discretion Empowers 293 the President to Enforce Treaty Obligation V. CONCLUSION 295 I. BACKGROUND: INTERNATIONAL DRUG CONTROL AT THE CROSSROADS

State-level marijuana regulations in the United States are proliferating in great number. (1) At the most radical end of the spectrum, Colorado, Washington, Massachusetts, Nevada, and California have all adopted pseudo-legalization regimes, permitting widespread recreational use of the drug; this means that in certain localities within these states, marijuana is as easy to purchase as liquor. Many other states have taken smaller steps toward legalization, such as allowing different types of medical marijuana use, decriminalizing small-scale possession, or designing other regulatory regimes. (2) These regulatory regimes ultimately work to fit the respective state's needs and policy goals. (3) Most recently, in November 2016, four more US states passed ballot initiatives legalizing some form of marijuana use. (4) In the eyes of federal law, of course, marijuana remains grouped with heroin, peyote, and psilocybin as a Schedule I drug under the Controlled Substances Act (CSA). (5) Decades after some commentators prematurely expressed optimism that marijuana would be legalized, (6) and decades after policymakers first expressed concerns about potential problems with criminalizing cannabis, (7) legal liberalization and regulation at the state level are proceeding at a rapid clip.

As states begin to work out kinks in their regulatory schemes, (8) the United States will need to reevaluate its approach to international drug control obligations. The Obama administration's strategy in this highly fluid area of law was to allow state-level legalization efforts to proceed within certain guidelines while maintaining that the United States remained in compliance with its international obligations. The Trump administration's policy has been to vocally oppose state-level efforts, but the administration is bound by Obama-era legislative changes; (9) thus far there has been little practical change in federal enforcement efforts in states where marijuana is now effectively legal. The international body charged with administering drug control treaties has remained unconvinced of the wisdom of these changes, expressing alarm at the prospect of state-level legalization. (10) The Supreme Court has thus far declined to intervene. (11)

This Note addresses several transnational dimensions of statelevel marijuana law liberalization, arguing that the federal government's exercise of prosecutorial discretion with regard to statelevel liberalization efforts is a legitimate reinterpretation of international drug control treaty requirements. Though state-level liberalization threatens the integrity of the international drug control regime, the US federal government lacks the power to fully stop it. As a result, interpretive flexibility is necessary--it represents the best way to preserve the treaties at issue.

To defend this position, this Note argues that the federal government should incorporate two previously unlinked academic and policy critiques of the drug treaties into its contention that circumstances have changed sufficiently to allow a new approach. These two arguments are: (1) a human rights outlook, which focuses on the social impact of drug control policy on vulnerable communities, and (2) a sovereignty outlook, which argues for federalist interpretations of the drug treaties. A human rights perspective focuses on the social impact that drug control policies have had on vulnerable communities, and a sovereignty argument focuses on potential textual outlets in the drug treaties for federalist interpretations. The assertion of this joint argument will allow the treaties to continue to perform functions desirable at the international level (for example, international cooperation on heroin trafficking) while preventing over-criminalization of lower-impact activity (like personal consumption of cannabis) from threatening the treaties' moral stature and textual cohesiveness. This strategy would also broaden the conversation on drug control, creating space for federalist nations to experiment internally with drug control.

The law in this area is fragmented and fluid, as different jurisdictions both nationally and internationally revisit the legal status of marijuana. (12) New US state ballot referendums regarding cannabis appear each election cycle, and foreign jurisdictions like Uruguay, Bolivia, Canada, and Portugal are years into their respective experiments with drug legalization. (13) The Netherlands' famously tolerant drug policy remains unchanged, despite a recent attempt to roll it back. (14) On the commercial side in the United States, tobacco companies and other corporate actors eagerly anticipate legal cannabis's entry into a competitive and lucrative national market. (15)

In the United States, marijuana liberalization has not increased usage rates or increased the rates of car accidents. (16) At the same time, racial disparities in arrest statistics for marijuana offenses remain static, even in US states that have decriminalized marijuana possession. (17) Meanwhile, the international treaties governing marijuana control are decades old. (18) These issues raise the inevitable question: are international norms regarding marijuana taking a back seat to sub-national innovations? International norms are an important factor in the US federal government's approach to legalization, and absent a major shift in federal priorities, marijuana policy will remain purgatorial, as innovation in legalization states accelerates.

There are few historical analogies to the statutory no man's land in which a potential consumer of marijuana now finds him or herself. The illegal user, recreational user, registered patient, or unregistered patient's rights shift markedly across US state boundaries. A federal prohibition on the use or possession of cannabis currently stands alongside many states' embrace of tax revenues derived from the sale of cannabis, in addition to states' elimination of formerly strict prohibitions on personal consumption of the drug. States arguably are sanctioning and profiting from a statutorily impermissible activity at the federal level.

One might analogize to local opposition to Prohibition during the early part of the twentieth century, but no state government ignored the directive of the Eighteenth Amendment and collected taxes on public liquor sales. From an individual rights perspective, we might analogize to gay marriage before Windsor, (19) but the Defense of Marriage Act simply prevented the federal government from recognizing same-sex marriage. (20) As this dissonance between state and federal government approaches to marijuana continues to grow more pronounced, the federal government's position on a potential resolution (rescheduling marijuana, or perhaps continuing the policies articulated by former Attorney General Holder, discussed below) must crucially incorporate a plan to contend with the international obligations to which the United States has acceded. This is an uncommon problem, and untangling it will take years.

Parts I.A and I.B of this Note survey the international drug control treaties, their text, and their effects. Part I.C discusses US federal law as it relates to marijuana enforcement in the states. Part II addresses the complexities of enforcing the international drug treaty regime. Part III articulates a human rights argument for the easing of the drug control treaties with regard to cannabis, and Part IV speaks to the complexities of nation-state sovereignty over treaty enforcement. American society is experiencing a deja vu moment--just as in 1933, the costs of Prohibition are becoming apparent, and a new system is emerging through a tangled and inexact democratic process. (21) Prohibition itself can serve as a rough analog for a transition of drug policy from a prohibitionist approach to a regulatory approach. (22)

1. The International Drug Control Treaty Regime

   The United States is party to three major international drug control treaties: (1) the Single Convention on Narcotic Drugs of 1961, amended by the 1972 Protocol; (2) the 1972 Protocol, which amended the Single Convention of 1961 to comport with the Convention of Psychotropic Substances of 1971; and (3) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. (23) Other commentators have conducted more indepth surveys and analyses of these treaties. (24)

   Several crucial points should guide any analysis of these instruments. First, although marijuana produces similar physiological effects to alcohol, none of the conventions prohibits or regulates alcohol. If the United States were to adopt an alcohol-minded approach to marijuana (tax, regulate, and reduce harm with programs geared to alleviating alcoholism), the treaties could lose a major raison detre...