According to Representative Barney Frank (D-MA) ’77, there are two issues in America about which the voters are wiser than public officials – military spending and legalizing marijuana. He spoke about the latter at an event sponsored by the Harvard Law School American Constitution Society on October 18, discussing proposed legislation that would end the federal ban on marijuana, as well as the need for drug policy reform at the federal level and why marijuana policy is an issue better handled by the states.

He is the co-sponsor, along with Rep. Ron Paul (R-TX), of the Ending Federal Marijuana Prohibition Act of 2011, which would remove marijuana from the list of federally controlled substances in order to permit states to decide how to regulate it. It would remove all federal criminal penalties for the use of marijuana and possession of amounts for personal use in states where medical marijuana is permitted, and would thus reduce the number of prosecutions that occurred under the Bush administration and continue under the Obama administration. Frank explained how the issue encapsulates the debate about the proper role of government in regulating human behavior.

“Interpreting this bill as one that encourages marijuana use is a fundamental misunderstanding of what ought to be the liberal approach to government,” he said. “That view contains the implicit assumption that all human activity can be split into two categories – things we want to make illegal, and things that the government encourages. There’s this mindset that if you’re not making something a crime, you’re encouraging people to do it. That has to be completely rejected.”

In fact, current marijuana policy arguably encourages discrimination because it overwhelmingly captures minority youth, Frank explained. In New York City, for example, possessing small amounts of marijuana is not a crime unless it is displayed in public. So as part of the police department’s stop-and-frisk program, officers ask suspects to empty their pockets and they then arrest them if they happen to be carrying marijuana, because by removing it from their pockets, they display it in public. The Bloomberg administration has recently begun backing away from this policy.

“The argument that federal policy should not be changed because no one actually enforces marijuana laws usually comes from older white people. No one enforces it against them, but there were more than 50,000 marijuana possession arrests in New York City last year,” Frank said. “Some say it’s a good way to go after potential criminals and cuts the murder rate. But the notion that you can justify arresting a whole lot of people for something not harmful just because a small number of them may have done something wrong is antithetical to the very notion of justice.”

If the government wants to discourage marijuana use, criminalizing it does not serve that end., Frank said. He compared marijuana to tobacco, arguing that when the adverse effects of tobacco became known, the government did not ban it. Instead, it embarked on an extensive public health campaign, highlighting the dangers of the product. Further, marijuana use is a victimless crime, in that it involves voluntary behavior and produces no “victim” who would report it to the police, which is why prohibition is ineffective. He explained that marijuana use is far less likely to harm others than the use of other legal substances.

“Police often respond to reports of drunk and disorderly conduct,” he said. “Not baked and disorderly conduct.”

See also coverage in Harvard Gazette, “Frank look at marijuana laws.”