The Los Angeles Times editorial in opposition to Prop. 19 makes several of the points made in this space: the proposition, like so many initiative measures, is badly drafted to the point of incoherence and will not do in fact what it purports to do: tax and regulate cannabis.
But the editorial, as a piece of reporting and analysis, is not precisely Pulitzer Prize material. As someone who more or less agrees with the conclusion, perhaps I have special standing to criticize the evidence and argument brought to bear in order to reach that conclusion.
Here’s the first paragraph of the editorial:
Marijuana is the most popular illegal drug in the United States. Seventy years of criminal prohibition, “Just Say No” sloganeering and a federal drug war that now incarcerates 225,000 people a year have not diminished the availability or use of — or apparently the craving for — cannabis.
I’m not sure where 225,000 people a year comes from. It’s neigher the number of people behind bars on cannabis charges – that number is closer to 30,000 – nor the number of people in federal prisons on all drug charges together – about 100,000 – nor the total number of drug-war prisoners, which is more like half a million.
The claim that the laws haven’t diminished the use of the drug is astounding. Not only is it false: if it were true it would completely undermine the rest of the argument. If the cannabis laws weren’t suppressing some cannabis use that would otherwise occur, then all of their costs come without any benefit whatever, and they should be abolished at once.
But the claim is certainly false. The laws increase the price of cannabis by about tenfold over the price that would obtain in a legal market. They create legal risk – of arrest and the acquisition of a criminal history, though rarely of imprisonment – for cannabis users. And they help maintain the social stigma that the drug still carries: an occasional cannabis smoker is still a “drug user,” while a chronic drunk is not. And “drug user” is a damaged social identity, even though most users of illegal drugs are, in fact, occasional pot smokers. (The dating service eHarmony just sent out a list of the top ten “can’t haves” listed by women using its site: “drug use” was #8, with a majority of all women flatly refusing to consider dating anyone in that category. Heavy drinking didn’t make the list.) The laws work largely by leveraging social attitudes.
No one knows how much more cannabis would be consumed if the drug were legal on the terms proposed by Proposition 19: more or less free commerce with minimal taxation. Reasonable estimates might range from twice as much as today to five times as much, with the size of the market likely to grow with time as social attitudes change. (The consumption increase under my preferred “grow-your-own” policy would be smaller, but not small in absolute terms: I might guess at a doubling, though I wouldn’t be surprised by a much smaller immediate impact or a much larger effect in the long run.)
The editorial continues:
And helping meet the demand is California, the nation’s top grower. Marijuana production here results in an estimated $14 billion in sales, and its cultivation and distribution are now tightly woven into the state’s economy. It is grown in homes, in backyards and even in national parks, including Yosemite.
It’s not clear what “an estimated $14 billion in sales” means: is that supposed to be the farmgate price, or the total retail value? In either case, it’s wrong. The total value of the retail cannabis market in the United States is $10-20 billion per year, and while California is a major supplier it’s far from being the only state where cannabis is grown; in addition, Mexico, Canada, and Jamaica all contribute. There’s no way the California cannabis industry generates anything like $14 billion.
Nor is it clear what place this assertion has in the argument of the editorial. The larger the illicit market, the stronger the case for changing the law.
Marijuana is popular, plentiful and lucrative, costing about $400 a pound to grow and yielding $6,000 a pound on the street.
Huh? The cannabis business, albeit illegal, is fiercely competitive. $400/pound might be a reasonable guess at the cost of producing high-quality cannabis indoors under legal conditions; I think the LAT was drawing on the RAND estimate (from the excellent study by Beau Kilmer et al.) on this point. But it’s certainly not the cost of production under illegal conditions, or the retail price would be much lower.
Then comes the meat of the editorial, which gets the argument more or less correct:
Whether marijuana should be legal is a valid subject for discussion. Californians ought to welcome a debate about whether marijuana is any more dangerous than alcohol, whether legalization would or would not increase consumption, and whether crime would go down as a result of decriminalization. But Proposition 19 is so poorly thought out, badly crafted and replete with loopholes and contradictions that it offers an unstable platform on which to base such a weighty conversation.
Its flaws begin with the misleading title: Regulate, Control and Tax Act. Those are hefty words that suggest responsibility and order. But the proposition is in fact an invitation to chaos. It would permit each of California’s 478 cities and 58 counties to create local regulations regarding the cultivation, possession and distribution of marijuana. In other words, the law could change hundreds of times from county to county. In Los Angeles County alone it could mean 88 different sets of regulations.
The proposition would have merited more serious consideration had it created a statewide regulatory framework for local governments, residents and businesses. But it still would have contained a fatal flaw: Californians cannot legalize marijuana. Regardless of how the vote goes on Nov. 2, under federal law marijuana will remain a Schedule I drug, whose use for any reason is proscribed by Congress. Sure, California could go it alone, but that would set up an inevitable conflict with the federal government that might not end well for the state. That experiment has been tried with medical marijuana, and the outcome has not inspired confidence. Up and down the state, an untold number of residents have faced federal prosecution for actions that were allowed under California law. It’s true that the Obama administration has adopted a more tolerant position on state laws regulating medical marijuana, but there’s no guarantee that the next administration will. Regardless, Obama’s “drug czar,” Gil Kerlikowske, has firmly stated that the administration will not condone marijuana’s legalization for recreational purposes.
One reason given by Proposition 19 supporters for legalizing marijuana is that California is in dire fiscal straits, and taxing the cannabis crop could ultimately enrich state and local coffers by $1.4 billion a year. But again, critics say that argument is misleading. The act essentially requires local governments that choose to regulate and tax marijuana to establish new bureaucracies and departments, and much of the new revenue could be eaten up by the cumbersome process of permitting and licensing sales, consumption, cultivation and transportation.
The editorialist might have added that competition among jurisdictions would likely produce a “race to the bottom,” with each town competing with its neighbors to have the lowest taxes and loosest regulations in order to attract the industry, the way South Dakota attracted the credit-card industry. The result would be to minimize tax revenue.
Adding that point, and acknowledging the high cost of the current policy, to the paragraphs immediately above would have left the LAT with a competent essay in opposition to Prop. 19. The question is why they decided to add to that essay a bunch of logically and factually dubious extraneous material.
When the Heritage Foundation produced a bad argument against Prop. 19, I attributed its failure to do any fact-checking to its managers’ belief that publishing falsehoods does not damage the Heritage brand as long as the falsehoods are in the service of right-wing causes. But surely that’s not true of the LAT. Its failure to do basic fact-checking seems inexplicable on any rational basis. All I can think is that being able to use the editorial “we” causes delusions of omniscience.