After previous attempts to decriminalize marijuana in New Hampshire were vetoed by Gov. John Lynch (D), the legislature in Concord will again take up two bills that would dramatically lessen the punishment for the possession, use, and cultivation of pot, this time with the hopes of securing a veto-proof majority:

House Bill 1526 would make possession of up to an ounce of marijuana punishable only by a fine of up to $100. Pot possession would no longer be considered a misdemeanor offense, as is the case in Massachusetts after voters there passed a ballot measure.
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Another bill to be discussed at the hearing, HB 1527, would go even further, exempting the cultivation of marijuana under the controlled drug act.

Freshman Rep. Kyle Tasker (R) is one of the first bill’s primary backers, and expressed his hope that a compromise would be reached that would allow the House and Senate to secure enough support to override a likely veto from the governor. “This is a bipartisan issue. Everyone agrees there’s a need for change,” Tasker told the Union Leader.

The pro-legalization advocacy organization NORML lists 14 states that have decriminalized pot “to some degree,” though several of the states listed still treat possession as a misdemeanor. In New Hampshire, as with many other states, marijuana convictions are almost always pleaded out, resulting in lesser sentencing while still attaching a criminal record to violators, law enforcement officials say.

Yet liberalizing state marijuana laws will only achieve half of what’s necessary to reform America’s overreaching drug laws. Even if every single state repealed their marijuana laws tomorrow, that would do nothing to change the federal government’s strict prohibition. Despite a study by the Centers for Disease Control which revealed that 15,000 people died in 2008 from overdosing on legal prescription painkillers, the federal government still treats the much less dangerous drug marijuana as a Schedule I controlled substance — in the same category as cocaine and heroin. Legal prescription drugs like OxyCotin and Vicodin remain in lower classifications with fewer regulations.

Polling in New Hampshire that was conducted the last time the legislature debated these bills in 2008 indicates that a large majority of voters support reforming the state’s pot laws. That’s similar to a national Gallup poll in 2011 that showed for the first time a majority of voters support legalizing the use of marijuana.

Yesterday, the Centers for Disease Control and Prevention reported that the number of deaths from overdoses of legal prescription painkillers had more than tripled over a decade, killing a shocking 15,000 people in 2008 — more than died from heroin and cocaine overdoses combined. This “epidemic” of pain killer abuse is troubling in its own right and demands public policy answers, but it also helps to underscore the incongruity of the current drug policy.

The report comes as a growing number of states and the federal government debate the prohibition of marijuana. Just this week, the White House rejected several marijuana legalization petitions.

Marijuana is a Schedule I controlled substance, giving the highest level of restriction possible. Painkillers like OxyCotin are Schedule II, while others like Vicodin are Schedule III. Yet while these less restricted drugs killed 15,000 people last year alone, “There are virtually no reports of fatal cannabis overdose in humans,” a widely-cited study from the National Institute of Mental Health found. Studies on animals have found lethal doses practically impossible to achieve, as a human physically could not consume the required volume.

As spelled out in the Controlled Substance Act, there are three requirements for Schedule I classifications, according to the DEA:

Substances in this schedule have a high potential for abuse, have no currently accepted medical use in treatment in the United States, and there is a lack of accepted safety for use of the drug or other substance under medical supervision.

Of course, 16 states and the District of Columbia now recognize medicinal benefits of marijuana and have established safety standards. And while there is no doubt that marijuana has the potential for abuse, advocates say it is not high enough — on par with cocaine and heroin — to merit Schedule I status, and no higher than prescription drugs, the danger of which the CDC report clearly demonstrates.

In fact, when marijuana was initially classified as a Schedule I drug in 1970, its placement was intended to be only provisional pending the findings of the National Commission on Marijuana and Drug Abuse, also known as the Shafer Commission, as it was led by then-Pennsylvania Gov. Raymond Shafer (R). Two years later, the commission released its findings, concluding: “Neither the marihuana user nor the drug itself can be said to constitute a danger to public safety.” Nonetheless, the Nixon administration did nothing and let the drug remain classified as Schedule I.

In a letter sent just last week, nine congressmen, including Republican Rep. Dana Rohrabacher (CA) — called on President Obama to reschedule marijuana as either a Schedule II or III drug — the same status as Vicodin or Oxycontin. Reps. Barney Frank (D-MA) and Ron Paul (R-TX) have also introduced a bill to do just that.

Earlier this month, federal prosecutors in California announced that they were stepping up enforcement against medical marijuana clinics that have allegedly become de facto dealerships where people without a medical need can still buy pot. In response to this unfortunate diversion of scarce resources to minor drug crimes that cause, at most, negligible harm to society, a medical marijuana advocacy group called Americans for Safe Access filed an equally unfortunate lawsuit seeking to have the Justice Department’s actions declared unconstitutional:

Adamant in its disagreement with the policy choice made by the States of California to decriminalize marijuana for medical use — which is California’s sovereign right under our federalist system of government — the federal government has instituted a policy to dismantle the medical marijuana laws of the State of California and to coerce its municipalities to pass bans no medical marijuana dispensaries. . . . While the federal government is entitled to enforce its criminal laws against marijuana in the states that have decriminalized it for medical use in an even-handed manner, the Tenth Amendment forbids it from selectively employing such coercive tactics to commandeer the law-making functions of the State. This case is brought to restore the constitutional balance embodied by the federalist principles of our Constitution and the Tenth Amendment.

This is strong rhetoric, but it’s tough to find an actual legal argument in here. In essence, the lawsuit appears to claim that the federal government is violating something known as the “anti-commandeering doctrine,” which forbids the federal government from requiring a state government to take a particular action. As the Supreme Court held in Printz v. United States, “the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.”

The problem with this lawsuit is that there is no indication whatsoever that DOJ is ordering California to do anything. The Justice Department is targeting marijuana clinics and individuals who do business with them. None of these people are the state of California.

Yet the fact that DOJ’s attacks on these clinics is constitutional does not make them right, and they expose a very real political danger for anyone worried about the tenther movement’s effort to replace our Constitution with a radical libertarian vision that would declare much of the Twentieth Century unconstitutional. The polling trend on marijuana policy is clear and unambiguous, and it leaves no doubt which side is on the right side of history:

Our current policy, which criminalizes an activity that nearly half of all Americans will engage in is unsustainable. And many people who want to take a machete to the Constitution are eager to exploit this fact. Randy Barnett, the extremist law professor who wants to make everything from Social Security to Medicare to child labors law unconstitutional, began his crusade by unsuccessfully arguing to weaken federal marijuana laws in the Supreme Court. The Tenth Amendment Center, an even more extremist organization that lists unconstitutional nullification of federal laws as one of its primary objectives, touts an unconstitutional hemp bill as one of its top priorities.

Progressives cannot afford to cede an increasingly popular issue to a movement that wants nothing more than to dismantle our social safety net, strip workers of their most basic legal protections and create a society where wealth becomes destiny. Our current federal marijuana policy is unambiguously constitutional, but that does not make it right.

GOP presidential candidate Gary Johnson told reporters today that he would consider issue “a full presidential pardon” for every non-violent marijuana convicted under current drug laws if elected. Asked by blogger Darren Richardson if he would consider such a move, the libertarian former governor of New Mexico — who called himself “part of the marijuana movement, forever” and has acknowledged using marijuana — said he would, comparing the prohibition on marijuana the prohibition of alcohol:

JOHNSON: Yes. … After prohibition of alcohol was repealed, one of the untold stories was of all the pardons that went out to all those people who had been convicted or were serving jail sentences for trading in alcohol. I think that same phenomenon accompanies legalizing marijuana and what I call rational drug policy, which starts with looking at the drug problem or the drug issue first as a health issue rather a criminal justice issue.

Most offenders are convicted under state drug laws and thus not eligible for Johnson’s scheme, but activists have sought a presidential pardon for some egregious federal convictions.

Perhaps the most startling thing about Johnson’s stance is not the comments themselves, but the fact that only a fringe candidate with less than one percent support in most polls is willing to say them. As Johnson happily noted, a new Gallup poll released this week finds that a full 50 percent of Americans now support marijuana legalization, and not just for medical use. A CNN poll from April, a Pew poll from February, and many other recent polls have similar results, with support for legalization in at least the mid 40s. Meanwhile, support is as high as 62 percent other controversial among Americans under 30 years old. Support for other social policies is often not much higher, yet they garner immense attention while drug policy is largely ignored or taken for granted.

Reps. Barney Frank (D-MA) and Ron Paul (R-TX) have been perhaps the most mainstream politicians to take up the issue, introducing a bill to allow states to regulate marijuana as they please.