This isn’t the first time that Booker has had harsh words regarding the nation’s drug policy. In 2007, he told the Star-Leger that “The drug war is causing crime. It is just chewing up young black men. And it’s killing Newark.” In 2001, Booker told CNN, “you have incarceration rates in this country now that are outrageous…you aren’t really solving the problem by just throwing people in jail.” New Jersey spends over $1 billion per year on prisons and about one-third of the beds are filled with non-violent drug offenders.

Booker’s comments come at a time when Americans attitudes toward drugs, particularly marijuana, are rapidly changing. A poll released yesterday found that 56% of Americans favor legalization of marijuana, with just 36% in opposition.

QUESTION: Currently, 16 states plus the District of Columbia have made the medical use of marijuana legal. In some of these states, individuals have been authorized to cultivate and sell medical marijuana under tightly regulated conditions. However, medical marijuana use remains illegal under federal law, even in states that have passed laws or ballot measures that allow it for medical treatment.

Do you feel President Obama should: (ORDER ROTATED)

- Respect the medical marijuana laws in these states, or

- Use federal resources to arrest and prosecute individuals who are acting in compliance with state medical marijuana laws? . . .

RESPECT STATE LAWS 74% . . .
PROSECUTE FED LAW 15% . . .
NOT SURE 11% . . .

To be fair, much of the language in this poll question is highly suggestive — the phrase “tightly regulated conditions,” for example, implies that marijuana use will still be closely guarded even in states with relatively permissive laws — so it is likely that the poll would not have achieved such a dramatic contrast if it had used less loaded language. Nevertheless, the poll is consistent with other polls showing increased support for liberalization of marijuana policy, including a recent Gallup poll showing majority support for outright legalization.

The poll also highlights the very real political danger facing progressive lawmakers if they continue to support a marijuana policy that is both overreaching and unpopular. Regardless of how they poll, there is simply no question that federal marijuana laws are constitutional. The Constitution gives Congress the power to “regulate commerce . . . among the several states,” and this includes the power to ban a substance from commerce entirely. Moreover, states simply do not have the power to nullify federal laws that they do not wish their citizens to be required to follow.

Nevertheless, many tenther activists who believe that everything from Social Security to Medicare to national child labor laws violate the Constitution are aggressively trying to entice young people into their movement by highlighting the fact that their misreading of the Constitution would also lead to federal marijuana laws being declared unconstitutional — or, at least, significantly rolled back. Progressive lawmakers can ill-afford to cede a generation of young voters to an extremist movement simply because they would rather cling to policies the country neither wants nor benefits from.

At the same time, however, the fact that a law is misguided does not make it unconstitutional — the consequence of living in a democracy is that our elected leaders will sometimes do foolish things — and a federal court just did the right thing by tossing out the first of these lawsuits:

A federal judge in Sacramento this week dismissed a federal lawsuit filed in November by members of the NORML Legal Committee against the US Department of Justice, US Attorney General Eric Holder, and DEA Director Michele Leonhart. The lawsuit (read it here), one of four filed simultaneously in the state’s four federal districts, argues that the Justice Department’s ongoing crackdown against medical marijuana providers and distributors in California is in violation of the Ninth, Tenth, and Fourteenth Amendments to the US Constitution because the use of cannabis therapeutically is a fundamental right. Petitioners also argue, using the theory of judicial estoppel, that the Justice Department had previously affirmed in public memos and in statements made in federal court that it would no longer use federal resources to prosecute cannabis patients or providers who are compliant with state law.

On Wednesday, US District Judge Garland Burrell, Jr., rejected those arguments and and granted the respondent’s dismissal motion.

The fact that constitutional litigation is not an appropriate vehicle to move America towards more reasonable drug laws does not mean that medical marijuana dispensaries should simply hang up their heat lamps and go home — or even that they need to lobby Congress to enable themselves to operate legally. Currently, marijuana is classified as a Schedule I controlled substance, which means that it has “no currently accepted medical use in treatment in the United States.” Meanwhile, many common painkillers that cause thousands of deaths every year are classified at Schedule II or Schedule III and can be prescribed by a physician.

The Obama Administration has the power to reschedule marijuana to allow doctors to decide when it is the right treatment for their patients, and, indeed, a bipartisan group of Members of Congress have called up it to do so.

According to the Marijuana Policy Project, if passed, the Colorado initiative would legalize limited marijuana use and possession for adults over age 21, while regulating and taxing it like alcohol:

If passed, the initiative would allow adults 21 and older to possess and use limited amounts of marijuana. It would also establish a system of regulations to control and tax marijuana sales, much like the system that exists for alcohol, and direct the state legislature to enact legislation governing the cultivation, processing, and sales of industrial hemp.

“Supporters of rational marijuana policies everywhere should congratulate the residents of Colorado for placing this initiative on the ballot,” Rob Kampia, executive director of the Marijuana Policy Project, said in a press release. Indeed, a slim majority of Americans now support legalizing marijuana, according to recent Gallup polling, while more than three-quarters support legalization for medicinal purposes. Sixteen states have legalized medical marijuana, but the federal government still maintains strict prohibition laws.

And while progressive Colorado Rep. Jared Polis (D) has led the fight to end marijuana prohibition at the federal level, the cause has also been taken up by libertarians who have used legalization as a wedge issue to attack the Constitution’s guarantee that national leaders can actually govern. Activists in California, for instance, sought to declare Justice Department enforcement of federal marijuana laws unconstitutional last year. While DOJ’s actions were unfortunate, the lawsuit itself was a seemingly frivolous way to attack the federal government.

Meanwhile, libertarian activists and politicians who view much of the 20th century’s social policy as unconstitutional have used marijuana liberalization as an issue to jump-start their anti-government crusades. That should concern progressives, who cannot afford to cede an increasingly popular issue that holds important implications for criminal justice reform and public safety to a movement that wants to use it as a way to end the social safety net and gut worker safety laws.

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.
[…]
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.

In announcing his retirement, Frank said he believes his leverage as a legislator has diminished and that he can better influence Congress as a private citizen and activist. ThinkProgress has assembled a list of Barney Frank’s last crusades — policy struggles that progressives should take up with even more vigor now that the congressman has announced his retirement:

1. Drastically Curtail Military Spending: Last year, Frank assembled a list of budgetary and military experts of every ideology to form the Sustainable Defense Task Force (SDTF). Under Frank’s tutelage, the SDTF laid out a trillion dollars worth of military spending cuts the United States could enact within a decade without undermining its security. More recently, when the super committee failed to reach a deal, Frank said it was “good” because the Defense Department “will take a big share of the cuts” that will automatically be enacted during the mandated sequester process.

2. Defending The Dodd-Frank Financial Reform Law: Last year, Congress passed into law the Dodd-Frank financial reform law. Frank has committed himself to defending this package of financial regulations from Republican attacks, even testifying before his colleagues in the Senate to defend certain parts of the law. With presidential contenders like Mitt Romney promising to repeal the law, it remains under attack.

3. Repealing The Defense Of Marriage Act (DOMA): Earlier this year, Frank co-sponsored legislation that would repeal DOMA. When Republicans complained that the bill may hurt them politically, Frank remarked, “The fact that we’ve now evolved to the point where the Republicans are complaining about the fact that we introduced this bill because it causes them political problems is a great sign of progress.” In his retirement speech, Frank challenged GOP presidential primary candidate Newt Gingrich to a debate over DOMA, saying that he is an “ideal opponent for us, when we talk about just who it is, is threatening the sanctity of marriage.”

4. Passing The Employment Non-Discrimination Act (ENDA): Frank has repeatedly supported and introduced the ENDA bill, which would outlaw discrimination in the workplace against LGBT individuals. In a passionate moment while debating the bill in 2007, Frank, choking back tears, explained that he had “an obligation to fifteen year olds dreading to go to school, because of the torments, to people who are afraid they’ll lose their job at a gas station if someone finds out who they love, I feel obligated to use the status I have been lucky enough to get, to help them.”

5. Ending Federal Prohibition of Marijuana: Working with his Republican colleague Rep. Ron Paul (TX), Frank introduced a bill that would end federal prohibitions on marijuana and allow states to regulate it themselves. Frank said he was “particularly struck by the hypocrisy of public officials who will themselves talk about smoking marijuana, wink at it, and then make it criminal for other people.”

6. Establishing A Universal Health Care System: While he supported the health care reforms in the Affordable Care Act, Frank was ultimately an outspoken proponent of a single-payer health care system that operates like Medicare for all Americans. During an appearance on the Ed Show, Frank said, “I’m for single payer, which I think Medicare has shown is the best system. I will accept as second best a very good public option which, by the way, when the conservatives say will lead to a total public plan, they are conceding our point, namely that people will find that there is a better level of care.”

Frank was one of the 99 Percent’s best allies in Congress, and with his departure, progressives can honor his legacy by continuing to advocate for the causes of his unfinished crusades.

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.

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.

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.