John Bash

This fall Florida voters may consider a proposed constitutional amendment that would eliminate state-law criminal penalties on the use of marijuana by adults, pending approval of the proposal by the Florida Supreme Court. But last week Governor Ron DeSantis expressed concern that the amendment would lead to rampant marijuana smoking in public spaces like city sidewalks and hotels—even near schools. His basic claim was that the text of the amendment would forbid the Florida legislature from regulating the “time, place, or manner” of marijuana use.

As the attorney who represented the sponsor of the amendment before the Florida Supreme Court—and as a longtime fan of Governor DeSantis—I understand his apprehension. No one should have to endure the odor of marijuana while commuting to work, walking the dog, or relaxing at the beach.

But he’s just wrong about what the amendment does. If voters approve the amendment, the legislature will have full authority to regulate or ban the use of marijuana in public places—authority that it already exercises for tobacco and alcohol. The Governor’s concerns, while no doubt well-intentioned, are unfounded.

The amendment’s sponsor, Smart & Safe Florida, carefully drafted its language to accommodate both the liberty of the individual and the public’s compelling interest in clean, family-friendly streets, parks, beaches, and facilities. No part of the amendment creates a right to consume marijuana in public. Although the amendment guarantees the right of adults to use marijuana, it does not specify where they may do so. Instead, the amendment leaves that decision up to the state legislature.

To underscore the point, the amendment states that “nothing in this amendment prohibits the legislature from enacting laws that are consistent with this amendment.” A law that prohibits marijuana use in public places while permitting adults to consume it in the privacy of their own homes would be fully consistent with the amendment’s text and basic purpose.

Smart & Safe Florida, moreover, did not write the proposed amendment on a clean slate. The Florida Constitution already grants the legislature broad powers to regulate public conduct and protect public health. Lawmakers have consistently invoked those powers to regulate the public use of tobacco and alcohol—for example, by banning smoking in workplaces and restricting alcohol sales near schools. Nothing in the amendment displaces that longstanding authority.

In fact, lawmakers can—and should—act now. They could enact a law today banning the smoking of marijuana in public that would go into effect if Florida voters approve the amendment. That step would ensure that voters will have an accurate understanding of what the amendment would do—and what it would not do—as they debate the merits of the proposed amendment over the next eight months. As a former United State Attorney who prosecuted marijuana traffickers, I have struggled with that debate myself. Some respected former colleagues are adamant that marijuana use should remain criminal.

But I have reached a different judgment. In my view, criminalization is no longer justified, if it ever was. A huge number of Americans use marijuana. The law should not declare them all criminals. Whatever its harms, the use of marijuana does not justify bringing the machinery of our formidable criminal justice system to bear on otherwise law-abiding citizens.

Criminalization is not just an abstract concept in a legislative debate or a newspaper column. It means depriving children of a parent who is serving a prison sentence; it means authorizing intrusive searches of people’s homes and papers and electronic devices even before conviction; it means imposing large fines and crippling attorneys’ fees, seizing and forfeiting private property, and creating permanent records that will tail people for the rest of their lives.

While I believe those consequences are justified for many illicit activities—including the trafficking of hard drugs like fentanyl that kill tens of thousands of Americans each year—marijuana use is not one of them. Law enforcement should concentrate its resources on drugs that kill people.

At the same time, however, when my family visits Orlando theme parks or Miami beaches, I don’t want my kids exposed to the smell or sight of marijuana. The proposed amendment makes eminent sense to me because it allows adults to use marijuana in private while preserving the legislature’s authority to ban its use in public.

Of course, Floridians may disagree with me and choose to vote in favor of the status quo. That is their right under the Florida Constitution—to vote on the rules that govern their lives. But voters should know what the amendment would actually do. And it is simply wrong to say that the amendment creates a right to use marijuana in public.

There is at least one person who apparently agrees with me on the appropriate balance between personal liberty and public welfare: Governor DeSantis himself. In last week’s comments, he seemed to suggest that he has no problem with “people in their homes” using marijuana. He just doesn’t want to smell marijuana in public. I feel the same way. The proposed amendment would strike precisely that balance.

As he has done with great success on many other matters, Governor DeSantis has the opportunity to lead on this issue. He should work with the legislature to develop a regulatory framework that would take effect in the event that the amendment passes. That would signal respect for the ultimate wisdom of Florida voters. And it could establish a national model for the sensible regulation of marijuana.

John Bash is a partner at Quinn Emanuel Urquhart & Sullivan LLP and served as the United States Attorney for the Western District of Texas from 2017 to 2020.