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Marijuana Legalization in Minnesota: the Right Way

  • 12 min read

Is it time?

Opposing marijuana legalization for responsible adult use is now political suicide. That might surprise some. But public opinion has changed. Recently Gallup reported its polling on the issue: “Sixty-six percent of Americans now support legalizing marijuana.”

Democracy? Bipartisan Majorities

And support is bipartisan. More Democrats support marijuana legalization than Republicans. But “Gallup found last year that a slim majority of Republicans supported legal marijuana for the first time. And this year’s figure, 53%, suggests continued Republican support.”

Pew Research Center reports similar polling. And Pew points out that support for marijuana legalization is now double what it was in 2000.

History doesn’t repeat; but it rhymes

We learn from the alcohol Prohibition life cycle. So why did it take so long to end alcohol Prohibition; even after a majority of Americans opposed it?

Five-percent tipping point

One answer? The tipping point was when about five percent of the voters made legalization a wedge issue.

So, single-issue voters disregard political party, and other issues. And they vote for a political candidate solely on the issue of re-legalization.

The alcohol Prohibition repeal soon followed.

Elections matter

In the 2018 general election, two single-issue marijuana legalization parties achieved major party status in Minnesota. Their candidates for statewide office received more than the five percent threshold to qualify as major political parties.

And less than five percent of the vote swings many elections. So opposition to the majority now has a price: losing elections.

So the time has come for full marijuana legalization. But what should it look like in Minnesota?

What should marijuana legalization look like?

The real issue is Liberty, not marijuana.

Ending marijuana Prohibition is consistent with conservative political values. Less government means more freedom. And Prohibition is the ultimate government bloat program, that destroys lives, destroys our freedom, destroys us.

We the People have at least an equal right to marijuana as to beer, wine and spirits.

We know the facts: marijuana is safer than beer, wine and spirits. And that fact undercuts the Prohibitionist lie: “marijuana is a dangerous drug” (sic).

Alcohol overdose deaths happen, many times each year. But that does not happen with marijuana. Marijuana has no toxic dose level, unlike caffeine, aspirin and many other commonly used, legal drugs.

Three models for marijuana laws

We’ve seen three models for our legal rights to marijuana, in chronological order:

  1. Tomato Model
  2. Prohibition Model
  3. Beer, Wine and Spirits Model
The Tomato Model of marijuana legalization
Tomato Model

The Tomato Model: marijuana legalization

Under the Tomato Model of marijuana laws, the people have rights to marijuana equal to our rights to tomatoes. The law lightly regulates tomatoes. And tomatoes are not a crime to grow, possess, or sell.

The Tomato model means the repeal of laws criminalizing cannabis. So people are free to do with marijuana what they can do with tomatoes. We call it complete, real, decriminalization, or just decriminalization.

This was the state of the marijuana laws before the marijuana Prohibition era began. And advocates of the tomato model say we should return to this. Of the three legal models, the tomato model is the most conservative. It protects the People’s Liberty most, with the least government infringement.

The Prohibition Model

Marijuana Prohibition never would have happened, but for the alcohol Prohibition. It was a last minute substitute.

The bureaucratic agenda: As the alcohol Prohibition was winding down in the 1930s, state by state; the government Prohibition bureaucracy made one last, desperate gasp for survival. It ramped up its anti-marijuana propaganda; with liberal appeals to racism.

And they succeeded. They saved their jobs. And they tricked the public into funding a massive anti-marijuana government bureaucracy.

But it was a solution in search of a problem. At the time, the marijuana usage rate was infinitesimal. But now, today, most Americans have used marijuana at least once, since Prohibition began.

Though twenty-four states have now legalized marijuana for adult use including Minnesota, Minnesotans still live under the shadow of marijuana Prohibition laws for possession.

The government still pays police officers to break down doors, toss people’s cars, searching for marijuana. Then we pay prosecuting attorneys to charge people with marijuana crimes. And we pay them to label us criminals, strip our civil rights, and lock us up. Moreover, enforcement disproportionately impacts African-Americans, despite equivalent usage rates with other ethnic groups. Prohibition laws primarily target disadvantaged people.

Real marijuana legalization ends these social evils, at least as to marijuana.

The Beer and Wine model

Under “the beer and wine model,” we have equal rights to marijuana, as to beer and wine.

The metaphor works because people are familiar with beer and wine.

Under this model, the law treats marijuana the same as beer and wine; in every way. And it works because marijuana is safer than beer or wine. And this medical fact undercuts opponents’ “public safety” worries. (Criminal laws create the real public safety threat, not the plant.)

Wherever the law now says “beer” or “wine,” we can add the word marijuana. What could be more simple?

Step one: decriminalization

Of course, we need to delete all criminal laws referencing “marijuana” and “THC.”

This includes deleting both from the Schedules in Minnesota’s Controlled Substances Act. Minnesota Statutes Chapter 152. And we call this “de-scheduling.”

In addition, we amend the criminal drug laws to delete all references to THC and marijuana. And most of these are also in Chapter 152. Marijuana, THC and cannabis are all deleted from Chapter 152 on “Controlled Substances.” After all, beer, wine and spirits aren’t in Chapter 152, either.

That is the decriminalization component. And for supporters of The Tomato Model of marijuana legalization, we should stop there.

Wine: should it be a crime? The beer and wine model of marijuana legalization
What quantity a crime?

Step two: regulation

Under the beer and wine model, we not only completely decriminalize, we also enact laws regulating marijuana production and sale in a commercial market. And here the existing beer and wine laws, can guide us.

We have equal rights to marijuana as to beer and wine. So the marijuana laws mirror those regulating beer and wine.

And this means possession is never a crime, regardless of quantity.

Conservatives and Liberty lovers may prefer The Tomato Model for marijuana laws, as we had before Prohibition. But here history has another lesson for us.

The legal framework for alcohol was The Tomato Model before the alcohol Prohibition. But after the repeal of alcohol Prohibition, the laws regulated alcoholic beverages. We’ll skip the reasons for that, here.

But, strong public support now exists for re-legalizing marijuana for responsible adult use under The Beer and Wine Model. Marijuana legalization in the Untied States will likely mean decriminalized and regulated like beer and wine.

What’s the Big Idea?

The Beer and Wine Model is the big idea.

Liberty. Equal rights. Civil rights. Ethnic justice. These core American values support the beer and wine model of legalization; far better than the evils of Prohibition laws.

What should marijuana legalization look like in Minnesota? The People should have at least equal rights to marijuana as to beer and wine. With that core principle, the rest takes care of itself.

Details Matter Too: marijuana legalization

Now let’s take a look a few of the important details of re-legalization in Minnesota.

“Home Grow is Alright With Me”

Even with regulated beer and wine, we now have the right to produce beer and wine at home in small batches. So under the beer and wine model for marijuana, we can legally grow marijuana on our property, in small batches. But current Minnesota marijuana cultivation laws are overly restrictive. Government should respect our right to grow cannabis plants in our own home, and not limit it to only eight plants.

A little Minnesota history — of contradictory public policy

Minnesota laws contradict each other when it comes to forms of marijuana.

Since 1976, the laws favored plant-form marijuana; but disfavored “the resinous form.” But later, they thought “the resinous form” more suspect than plant-form.

Minnesota Statutes’ 1976 definition of a “small amount of marijuana” retained that distinction. It made an exception for a small amount of the resinous form of marijuana.

Yet in the 2010s, the Minnesota legislature made a Medical Marijuana law favoring “the resinous form,” and disfavoring plant-form marijuana.

So, more recently they thought that the resinous form was safer than plant-form. And the legislature then approved only the resinous form, for legal use within Minnesota’s original medical marijuana program.

The public policy in those two sets of laws conflicted.

A rose is a rose is a rose

If that distinction made any sense, the legislature would not have contradicted itself, about which form is preferable.

And now the 2023 reform law overcomplicates and criminalizes cannabis based on even more form-categories. The law should be simplified so people can understand it. And an easy next repair to the law would be to eliminate all criminal penalties for marijuana possession, regardless of quantity. This would bring marijuana laws more in line with beer, wine and spirts laws.

Repair the Minnesota Medical Marijuana Program

The lack of home grow and coops in Minnesota’s medical marijuana program, undermines it. Now, Minnesota’s medical marijuana program is super-expensive and out of reach for disabled, sick people. And insurance does not cover it.

So Minnesota laws push disabled people into the illegal market, due to medical necessity.

The lack of legal home grow, and grow coops for Minnesota medical marijuana patients denies access to medical care to low-income, disabled people. But they could grow their own, or join a grow coop to do it for them, cheap.

Suppliers & distribution: marijuana legalization

The “bad model” at this point is Colorado, the first state to legalize. Why? Because it has a super-expensive seed to retail sale surveillance regimen then meant to reassure and deter diversion. Now that twenty-four states have legalized for adult use, this is an unneeded expense.

If retail cost is too high, the underground economy will continue. We need to destroy the underground economy using the laws of economics, not failed criminal laws.

The law of supply and demand beats criminal law: marijuana legalization
Law of supply & demand > criminal law

Suppliers and distribution. The existing two medical suppliers and existing legal hemp growers are places to look for beginning suppliers. And in recent years, possession of hemp cannabis is now legal under both Minnesota and federal law.

Over-taxation vs. marijuana legalization

In some states, over-taxation is a problem. If retail cost is too high, the underground economy will continue. The goal of marijuana legalization should be to underbid the black market; to end it and its crime.

Equal rights, and justice: The “beer and wine model” comes to the rescue again. We should not tax marijuana more than the beer and wine. The “sin tax” on beer and wine is already sky-high.

Transitional issues in marijuana legalization: growing pains

What are transitional issues? These issues are big problems as we transition from a Prohibition Model, to a Beer and Wine Model. But we expect that ten years after legalization many of these issues will subside.

There are many transitional issues. So let’s mention a few.

Automatic voiding of convictions, pardon, expungement

Minnesota’s marijuana legalization law should include automatic vacating of convictions, pardons, and public records expungement. Today, most people who qualify for criminal record expungement never file a Petition for Expungement in court. The cost in time and money is an effective barrier.

The law should automatically “vacate” every criminal conviction related to marijuana or THC; as well as “pardon” and expunge those public records. So the victims of Prohibition should not bear the burden of repair. Instead, put it on the government.

Did you know?: typical Minnesota court expungement Order will not restore civil rights.

Best Criminal Defense Attorney Thomas Gallagher-empowering-500-webp
Thomas Gallagher, Minnesota NORML Member

We must undo, set aside, vacate and dismiss the conviction; as if it never happened. We must do that, in order to fully restore all civil rights in a way the federal laws will recognize.

Though a Pardon will; a simple sealing of public records will not restore civil rights.

Amnesty for Drug War P.O.W.s: marijuana legalization

We should immediately release all people locked up for any marijuana or THC crime, from jail or prison. Let them out of prison. Release them from jail. Discharge their probation. Let them join their families again, in peace, and help us lift each other up.

Prohibitionist talking points

Despite majority support for marijuana legalization; a small, vocal minority repeats the same old false talking points to prop up Prohibition laws. For example, The Myth of Marijuana DUI vs. Science.

About the author

Written by Thomas C. Gallagher. And Gallagher has worked on ending Prohibition for over 30 years.

He is a former Chair of Minnesota NORML and is founding Board Member, since 2011.

Thomas Gallagher is a criminal defense lawyer in Minnesota.

His practice includes a heavy proportion of marijuana defense cases.

Question? Call Attorney Thomas Gallagher, 612 333-1500

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