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The Boston Globe

Opinion

TOM KEANE

The drug divide

Drawing the line on restrictions and penalties

David Badders for the Boston Globe

It made for a disturbing and unfortunate juxtaposition.

The week that the US government decided to essentially legalize the use of marijuana, four died from ingesting another drug, “Molly,” a variant of the more commonly known Ecstasy or MDMA. The first, on Aug. 19, was a 19-year-old woman at Boston’s House of Blues. Days later saw two more at a music festival in New York City. And the drug is also blamed for killing a college sophomore in Washington, D.C., just a weekend ago.

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Meanwhile, the prohibitions against marijuana, another psychoactive drug, fade away.

It’s perhaps an overstatement to claim marijuana has been legalized, but not by much. Just last year, Colorado began allowing residents to use marijuana recreationally. Washington state will likely do so in 2014. No longer will pot use be limited to medicinal purposes, as it is in Massachusetts, 17 other states, and Washington, D.C. No longer will users in Colorado and Washington state have to pretend they need a hit to soothe a backache or cure their insomnia, admitting instead to the obvious: Medical pot is just a subterfuge for getting high.

But just because a state permits something doesn’t mean the federal government agrees. According to the Drug Enforcement Agency, marijuana is a Schedule I drug, with “no accepted medical use” and a “high potential for abuse.” The federal penalties are harsh — up to five years for mere possession, for instance. And since federal law trumps state law, in theory that means it doesn’t matter what the states do. Marijuana — medical or recreational — is still illegal.

Unless it’s not. Even as kids were dying from MDMA, Attorney General Eric Holder was telling states that control of marijuana is now up to them. If that position sticks — and there’s a lot of blowback from law enforcement — then the criminalization of cannabis may well go the way of those odd, urban-legend laws (such as limits on Sunday hunting) that are supposedly still on the books yet are also entirely ignored.

In a way, the story of pot in America is starting to look much like the story of alcohol. When Carrie Nation and her followers forced through the 18th Amendment, the results were a rampant disregard of the law and the rise of organized crime. Prohibition’s end did not actually legalize booze. It just pushed the matter down to the states, letting them make the call (and until recently, a few, such as Utah, essentially still banned the stuff ). So too, when Harry Anslinger in the 1930s crusaded to make pot a federal crime, the consequences were the same as Prohibition: Millions paid the law no heed and organized crime found a new market.

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Now it looks as if we’re taking the next step: abandoning federal proscriptions and letting the states legalize or not, as they see fit. Colorado and Washington today. Soon, one suspects, there will be many more.

Holder’s decision marks a dramatic shift in philosophy and public policy, and there are many reasons to support it. A decision to get high is a personal one, perhaps unwise but not deserving of jail. The resources spent and lives wasted in stopping pot could be put to far better use. A smarter approach, many say, is to manage drugs through a combination of education, regulation, and taxation. Make sure people understand consequences, ensure quality and safety, put in place restrictions on age and use (as we do with tobacco), and, of course, tax the stuff because, after all, Leviathan wants its cut.

But then one runs headlong into “Molly” and her siblings and wonders where to draw the line. The lessons from Prohibition and the war on drugs are that, in the long run, bans don’t work. If anything, they backfire. Yet the rash of deaths and hospitalizations from “Molly” are horrifying, and the almost instant reaction is to want to impose even harsher restrictions and tougher penalties. One can intellectually understand the argument about education, regulation, and taxation, but what chance to learn does a 19-year-old woman have if merely one dose of MDMA puts her in a morgue? Should the consequence of a single mistake be death?

Thus the conundrum: Even as one war ends, the calls for a new one may be beginning.

Tom Keane can be reached at tomkeane@tomkeane.com.

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