BOSTON, Mass. (July 28, 2017) – After weeks of wrangling, the Massachusetts legislature finally passed a bill to legalize recreational marijuana in the state last week. When fully implemented, legalization will take another big step toward nullifying the unconstitutional federal prohibition of cannabis in effect.

Massachusetts voters approved a ballot measure to legalize marijuana in 2016, but the state legislature almost immediately began working on legislation to make changes to the voter approved law. The House and Senate passed separate measures that differed on various issues from taxation to specific provisions on possession and cultivation of marijuana. When a conference committee failed to reach a compromise by a self-imposed July 1 deadline, legislators went behind closed doors and hammered out a compromise bill.

The Senate ultimately approved House Bill 3818 (HB3818) by a 32-6 vote. It passed the House 136-11.

Under the proposed law, an individual can possess up to 10 ounces of marijuana within a primary residence, 1 ounce outside, and no more than 5 grams of marijuana concentrate. A household can have up to 12 marijuana plants inside. These provisions mirrored those in the voter-passed law.

Nick Evans chaired the committee that pushed for passage of the referendum said he was pleased the legislature did not make changes to provisions relating to possession and home cultivation.

“That is extremely important that the new rights the voters demanded and achieved last November have been preserved.”

The primary difference between the legislative legalization process and the one approve by voters is the taxing scheme. The voter-approved version imposed a 12 percent tax. Under the legislative version, the tax jumps to 20 percent. According to, the taxes break down like this: a 6.25 percent sales tax, a 10.75 percent excise tax, and a 3 percent “local option” that cities and towns can levy.

Medical marijuana became legal in 2014. It will remain untaxed under the new scheme.

Hemp will be considered an agricultural product under the new law. Small growers will have an option for a co-op concept.

If Gov. Charlie Baker signs HB3818 into law, things will move fast. Here is the timeline according to WAMC Public Radio. Commissioners are to be appointed by Sept. 1, regulations written by March 15, 2018, and applications for retail license accepted beginning April 1, 2018. Stores are to open on July 1st, 2018.


The federal Controlled Substances Act (CSA) passed in 1970 prohibits all of this. Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Legalization of recreational marijuana in Massachusetts removes another layer of laws prohibiting the possession and use of cannabis, but federal prohibition will remain on the books.

FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By mostly ending state prohibition, Massachusetts essentially sweeps away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.


Massachusetts was one of eight states that had measures on the ballot to to legalize marijuana for either for medical or general adult use last fall. This was the largest number of states that have considered nullifying marijuana prohibition in a single election cycle. Seven of the eight passed.

The state joins a growing number that are simply ignoring federal prohibition, and nullifying it in practice. Colorado, Washington state, Oregon and Alaska have all legalized both recreational and medical marijuana, and more than two-dozen states now allow cannabis for medical use.

With more than half the country legalizing marijuana, the feds find themselves in a position where they simply can’t enforce prohibition any more.

The lesson here is pretty straight forward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats.


Gov. Baker will have until July 30 to sign or veto the legislation. He has indicated he will sign.

Mike Maharrey

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