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Why Does U.S. Law Still Ban Marijuana Use but Not Fentanyl?

Editor’s Note: This is the third article in a series that discusses the necessity of crafting laws that have both solid moral underpinnings and reasonable methods of enactment in order to gain public compliance. Start the series here.

By Dr. Gary Deel, Faculty Director, School of Business, American Military University

The Prohibition Era offered many lessons about what’s needed to gain public compliance of laws. Unfortunately, the U.S. government neglected to learn from its lessons. One of the most notable contemporary examples of legislation that failed to change social behavior has been the nation’s criminal drug laws.

The Failure of the ‘War on Drugs’

The United States has been fighting drug abuse for decades. The Nixon administration declared drugs “Public Enemy Number One” and instituted harsh policies of severe criminal punishment for minor drug charges. A decade later, President Ronald Reagan gave new emphasis to the “war on drugs” with such extreme measures as mandatory minimum sentences designed to incarcerate convicted drug felons for decades, or even life, over even the most minor drug offenses.

[Related: Why Sessions’s Mandatory Minimums Directive is a Step Backwards]

The war on drugs has been an abject failure. It has done little to deter the use of illegal substances. Instead, like Prohibition, it created powerful market forces that, in pursuit of profits, have visited violence and oppression on communities in Central and South America, Asia, Africa, the Middle East, and elsewhere. Those who wish to use illegal drugs in the United States can find them with minimal effort. Because of the underground and unregulated nature of these black markets, many people have died due to the lack of safety and quality of these substances. Users don’t know what they’re actually putting into their bodies.

Why hasn’t the war on drugs worked? The answer is the same as with Prohibition. People generally don’t accept the moral argument or the methods employed to control them.

The government prohibits illegal drug use because it aims to protect the health of citizens. However, once again Americans are skeptical of the purported motives behind such legislation. For example, one conspiracy theory surrounding the historical reason for criminalizing marijuana claims it was a political lobbying effort by corporate interests that wished to destroy hemp as a competitor in the paper and textile industries.

Putting that aside, suppose we accept the altruistic intentions of anti-drug laws. There still remains backlash regarding government interference in peoples’ freedoms. If citizens wish to engage in behaviors that are detrimental to their health, many believe they should be free to do so. After all, tobacco products are known to cause cancer, yet they are perfectly legal for adults. The current fad of vaping is another example of the legal use of a harmful substance. So why should other harmful substances be outlawed?

We Would Rather Harm Ourselves than Let the Government Tell Us What We Can and Cannot Do

No one wants to see people purposely harm themselves. But in America we value our freedoms to the extent that, in many instances, we would rather have the choice of harming ourselves than allowing our government to tell us what we can and cannot do. In terms of moral footing, the government’s conflicting positions on different substances seem to reveal a bias that undermines its argument about concern for societal welfare.

It’s certainly true that all drugs are not equal in terms of potential harm. For example, the U.S. today is dealing with a crisis involving the abuse of a drug called fentanyl, a highly addictive synthetic opioid 80 to 100 times more powerful than morphine. It is so powerful, in fact, that dosage miscalculations equivalent to a single grain of sand can result in comas and even death.

[Related: Will Restricting Prescription Opioids Solve the Epidemic?]

On the other hand, there are many more benign drugs like marijuana, which has been used recreationally for 12,000 years. The plant itself contains a variety of cannabinoids and psychotropic chemicals. Some of the chemicals can create a “high” in the user, while other chemicals have been shown to have therapeutic benefits for conditions like chronic pain, anxiety, sleep disorders, and a host of other maladies.

The government must also take into account the actual harm that different substances cause. There are virtually no known cases of anyone dying as a direct result of using marijuana, absent other substances or pre-existing conditions. In fact, some experts have opined that overdosing on marijuana is next to impossible. Some opponents of marijuana argue that it can cause harm indirectly, such as when someone who is “high” gets behind the wheel of a car and causes an accident.

But the same arguments could be made – and are made – about alcohol or even some cough medicines. In fact, documented incidents of vehicle crashes resulting from drunk driving are far higher than those associated with marijuana use. According to ProCon Inc., an organization that discusses controversial issues, drivers under the influence of marijuana have been shown to drive much more safely than drivers under the influence of alcohol. These facts support the notion of a double-standard when it comes to the government’s approach to outlawing substances.

Impacts of the Government’s Misclassifications of Drugs

To be fair, the Drug Enforcement Agency (DEA) does put fentanyl and marijuana into different classifications. Marijuana is a Schedule I drug while fentanyl is Schedule II, the difference being perceived levels of potential abuse and danger. But for users, these are differences without distinctions because both Schedule I and Schedule II drugs are prohibited for recreational use by the federal government.

[Related: Illegal Synthetic Drugs Prompt Amendments to Federal Sentencing Guidelines]

Given the significantly greater danger involved with fentanyl, one would think it would be more tightly regulated than marijuana. But in fact, perplexingly, fentanyl and some other Schedule II substances can be prescribed – indeed, overprescribed – by a doctor while marijuana remains completely illegal at the federal level, not even for medical purposes.

There doesn’t appear to be much common sense when mapping controlled substances under federal guidelines. In fact, one might be forgiven for thinking that marijuana has been unfairly demonized in light of its apparent misclassification. That could explain some of the conspiracy theories about the motives for prohibiting marijuana.

It’s clear the government’s approach to outlawing certain drugs has been both misguided and ineffective. But what has this meant for America? And have the winds shifted in recent years? The next article in this series will discuss the government’s strategy of criminalizing controlled substances and its impact on society.

marijuanaAbout the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a JD in Law and a Ph.D. in Hospitality/Business Management. He teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others. To contact the author, email For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.

Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others.

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