Voter Madness? Voter Intent and the Arizona Medical Marijuana Act

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Daniel G. Orenstein

American marijuana policy is evolving at a breakneck pace, politically speaking. After decades of strict criminal penalties, functional holds on much research, and political and popular demonization (exemplified by the epigraph above from propaganda-film-turned-cult-favorite, “Reefer Madness”), changes are now coming surprisingly quickly. With the leash of federal policy loosening of late, many states are taking bold policy steps to adopt new approaches to marijuana that range from evolutionary (limited medical use) to revolutionary (legalization and taxation of adult recreational use). Medical marijuana laws in particular have spread quickly, with twenty-three states and the District of Columbia now allowing some form of lawful medical use. Like many of these states, Arizona’s medical marijuana  program is experiencing policy growing pains as conflicts arise between the new program’s legal framework and other laws. Among other issues, Arizona’s medical marijuana law raises difficult interpretive questions regarding statutory prohibitions on (1) possession of marijuana-derived extracts and (2) driving under the influence. Some level of conflict is unsurprising given the genesis of Arizona’s program through voter initiative, rather than legislation, but this approach has been common among medical marijuana enacted laws to date. In Arizona, the conflict necessitates especially careful analysis, as voter-enacted laws cannot be altered or overridden by the governor or simple legislative majority.

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