Explained: Drug Legalization vs. Decriminalization

Legalization and Decriminalization: What's the Difference?
Recovery Unplugged Drug and Alcohol Addiction Treatment

Written By

Dr. Po-Chang Hsu -

Medically Reviewed By:

Dr. Po-Chang Hsu

Last Medically Reviewed on January 26, 2024

Key Points:

  • Drug regulation goes back to 1914 and was expanded in 1970.
  • Legalization is full permission to use some substances in recreational amounts without legal recourse.
  • Decriminalization retains control of drugs but removes harsh sentencing.

The History of Controlling Drugs

The history of comprehensive drug regulation in the US targeting the making, dissemination, and procurement of drugs goes all the way back to the Harrison Narcotics Act of 1914. This law required all narcotics tradespeople to register with the Bureau of Internal Revenue in the U.S. Treasury Department.

By 1914, drugs like morphine, heroin, opium, and cocaine generated the most worry in the halls of Congress.[1]

While there were smaller intervening laws, the next major law to get passed was the Controlled Substances Act in 1970. Combining all previous federal laws, it was the beginning of federal law enforcement of controlled substances, serving as a legal foundation for the criminalization of drug abuse. This act was the beginning of US drug “scheduling.”

By 1970, concerns about drug abuse in Congress and international bodies like the United Nations had expanded to include a broader range of substances, such as LSD, barbiturates, and amphetamines.[2] Let’s be clear: Pharmacology has little relation with drug scheduling.

Schedule I drugs have a high potential for abuse and no currently accepted medical usage, whereas Schedule II drugs have a high potential for abuse and limited accepted medical usage. As the schedule increases, the risks decrease.

Morphine and fentanyl are both schedule II drugs, even though fentanyl is 50-100x more potent than morphine. But they are both more potent than marijuana, which is a Schedule 1 drug. Sometimes, drugs bounce between the levels when new research appears.

What Does Legalization Mean?

“Legalization” means ending legislative control of a substance, making it fully permissible to use without fear of any kind of legal consequence.

Marijuana is a notable example. Since California enacted medical marijuana legislation in 1996, a larger number of states have followed suit, legalizing medical marijuana to varying extents. There are now no legal repercussions from state authorities if anybody is searched and found with any amount of marijuana.

But, if a federal agent were to search a person in these twenty-three states and find any amount of marijuana, they could charge them with a prosecutable offense because marijuana is a controlled substance at the federal level.

These competing standards are the source of much public confusion and frustration. True legalization would be an attempt to end both federal and state control of marijuana. When one state legalizes weed, it can create a headache for states surrounding it that haven’t. Drugs can be grown legally in one state and then sold next door for higher profits because they don’t have to pay any sales tax.

Ironically, the black market for illicit cannabis is still strong in states like Colorado, and it’s even growing.[3] It will remain strong if some states have not legalized the drug yet.

What Does Decriminalization Mean?

Decriminalization means retaining control over a substance but ending the fear of prosecution and arrest. Instead of being handed a lengthy prison sentence, people caught with the substance would be diverted to treatment or offered counseling.

Proponents say this would help people struggling with addiction get the help they need rather than just get shuffled further down the incarceration pipeline. Spending money on law enforcement and drug courts could be diverted to treatment programs.

Seven states have decriminalized marijuana. Some of these states, like Louisiana, have legalized the drug for purely medical uses, while others, like Nebraska, have no such medical permissions.

It’s argued that decriminalization could be the perfect balance between control and permission.

Difference Between Legalization and Decriminalization

The difference between decriminalization and legalization is between complete permission and partial permission. Legalization allows people to use a substance without fear of legal consequences. Decriminalization means the government retains control over the distribution and consumption of the substance but removes harsh penalties.

Both ways are a shift from the enforcement-heavy approach the US government has taken to drug enforcement over the past few decades. The trend is turning towards acceptance rather than control for some drugs.

For instance, the FDA recently issued guidelines for clinical drug trials of Psilocybin, the psychoactive ingredient in “magic mushrooms.”[4] There is also emerging evidence that cannabis can be used to treat opioid use disorder.[5]

The relationship between pharmacology and drug scheduling is complex and can be influenced by various factors, including political, social, and scientific considerations. It is a matter of ongoing debate whether drug scheduling should be more closely aligned with pharmacological evidence.

If you or your loved one are struggling with drug abuse, no matter which drug, get the help you need today. Recovery Unplugged is ready to help you heal from drug abuse and addiction. Our representatives are standing by 24 hours/day and 7 days/week to put you on a trajectory towards lasting sobriety.

Professional Help Is The Solution

Even if a certain substance is legal in your state, this has no impact on the physical and mental health ramifications of substance use on you – body, mind, and soul. Seek professional help to address and overcome addiction.


Frequently Asked Questions about Decriminalization and Legalization

Why is decriminalization better than legalization?

At Recovery Unplugged, we don’t take a position on which legal avenue is better than the other. They both have benefits and drawbacks, specifically regarding cannabis.

Rather, both decriminalization and legalization could allow more people to get diverted to treatment programs like ours, getting the quality help they urgently need. The risk for relapse is high, and our legal justice system is not well designed to help people reach sobriety.

Legal justice does a good job of following procedures and honoring both national and state constitutions. Similarly, we strive to get people the help they need when they need it. By applying both pharmacological and psychotherapeutic treatments, we can help you sustain any gains made during detox or rehab from substance abuse.

Long-term medication-assisted therapy (MAT) and therapeutic interventions like cognitive behavioral therapy (CBT) offer a much better chance for long-term recovery than a day in drug court.

Disadvantages of Legalizing Cannabis

One disadvantage of legalizing marijuana is that some states still have not legalized it. Like in Colorado, which has legalized growing cannabis for many years, there is still a thriving black market for illicit sources.

States that had counted on receiving tax dollars to fund schools or social services might be disappointed when the growers opt to distribute cannabis illegally out of state and, therefore, miss out on tax revenue.

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