States as laboratories for marijuana policy

[Cross-posted from the Washington Monthly's Ten Miles Square]

Public opinion about marijuana has moved sharply over the past few years; about half now support legalization. Tuesday voters in Washington State and Colorado took the leap of approving commercial production and sale for non-medical use, under more or less the same rules that apply to alcohol.

Ideologues on both sides are claim to know with certainty what the results of legalization would be; all good in the view of the legalization advocates, all bad in the view of those who support the current laws.

But those of us who try to study the issue scientifically find ourselves in a world of doubt. How much lower would legal prices be than current illegal prices? If there were heavy taxes, how much evasion would there be? Would buyers in a legal market favor possibly more dangerous high-potency varieties, or would lower-strength products dominate the marijuana market as beer dominates the alcohol market? Would legalization greatly increase problem marijuana use? Use among teenagers? (That might depend on the price.) Would there be an increase in auto accidents due to stoned driving? Would problem drinking decrease – or increase – as result?

All of those questions matter. None of them can be answered by abstract reasoning, or by studying small variations in marijuana policy such as decriminalization of possession for personal use. The only way to find out how legalization would work in practice is to actually try it.

But actually trying it on a national basis carries heavy risks. If it goes badly – if, for example, heavy use and use among teenagers quadrupled – it would be very hard to put the genie back in the bottle. All those new users would become potential customers for an expanded illicit market if the drug were re-prohibited.

So the obvious way to learn something about marijuana legalization would be to try it out one state at a time: relying on what Justice Brandeis called “the laboratories of democracy.” If Colorado’s legalization went badly, that would be a much easier problem to correct than if the mistake had been made on a national basis.

Of course, it’s not really possible to legalize in a single state with the federal prohibition in place; making growing and selling marijuana legal under state law doesn’t make it any less of a federal crime. But in practice most enforcement is done at the state and local level, so removing the state law would allow us to learn quite a lot about the consequences of full legalization.

Virtually no one advocates completely unregulated trade in marijuana: for example, there is near-universal support for a ban on sales to minors, for product-labeling requirements, and for a substantial tax to prevent a drastic price decrease and help deal with state budget crises. All of those are written into both the Washington and Colorado laws, and one of the things we could learn from their experience is how well that regulatory process works and how hard it is to collect those taxes.

But the federal government could shut down both of those experiments, if it were determined to do so. Everyone who applies for a license to grow or sell marijuana is, in effect, asking the state for permission to break the federal law, and that list of applicants could become a list of targets for federal drug-enforcement agents.

That approach would please the drug warriors. But it would make it impossible to learn anything useful from the Colorado and Washington experiments.

So why shouldn’t the federal government cut Colorado and Washington some slack? As long as those states prevent marijuana grown under their laws from crossing state lines and thereby subverting marijuana prohibition in the rest of the states, the Justice Department could step back and let the consequences of the new policies play themselves out. They might succeed, or they might fail. In either case, the rest of us could learn from their experience.

Comments

  1. Krymsun says

    The Feds won’t get off the dime until the Federal court rules on the issue. The D.C. Circuit heard oral arguments reviewing the scientific evidence regarding the therapeutic value of marijuana on Tuesday, October 16, 2012: Case# 11-1265, Americans for Safe Access v. DEA. The court should rule on this within a year, till when don’t expect an answer on what they will do, because they won’t know till they are told what the new legality is. If the feds jump the gun on this, its likely they’ll screw the pooch, and open themselves up for a suit against them, which the states and the marijuana industry should welcome. When this leads to rescheduling cannabis (as it must), permitting it to be prescribed legally in the entire nation, and not only among the states that have passed medical marijuana legislation, the Feds will have to restructure their entire approach to the issue. Any moves now against (state-legal) dispensaries or growers might be met with a plea to put the case on hold until the federal court rules on the ASA vs. DEA case, which could force the rescheduling of marijuana, robbing the enforcers of their principle weapon.

  2. John Beaty says

    “As long as those states prevent marijuana grown under their laws from crossing state lines”. THat is a very high bar. The states are completely unable to do it with tobacco, so I doubt that they would be able to do it with pot.

  3. Colin says

    People often compare laws on cannabis to alcohol and tobacco. But you could even make a comparison with, say, refined sugar. Why does the government let people eat candy for non-medicinal purposes? (By ‘medicinal’ I mean as a treatment for hypoglycemia.) We even let people feed it to their children! From a nutritional point of view it’s pretty much pure evil, and society ends up picking up a fair amount of the bill in the long run for the health consequences, such as obesity and type 2 diabetes. You could make the argument that if the government banned candy, there would be an illegal market in it that would cause more harm in other ways. Also, people would substitute by consuming unhealthy amounts of fruit juice, honey and so on. But even then, the health benefits could well outweigh the costs.

    I think ultimately, the strongest argument for letting people eat candy is that it’s not the government’s business to get people to look after themselves. As responsible adults, they can decide that the happiness they get from eating sugar outweighs the cost to their health. (Feeding candy to children who aren’t competent to make responsible decisions is ethically more dubious.) In that case, why not apply the same argument to narcotics?

    • Brett Bellmore says

      Because people don’t go into government to let people make their own choices? They go into government to make other people’s choices for them.

      It’s a great argument, just one people in government have already rejected, or else they’d be doing something else.

      • John G says

        nonsense. People go into government almost always because they want to improve things for everybody, and there are too many people in the country (or state or city) for ‘direct democracy’, when everybody can participate in every decision that affects them and their society (and the world). So people have to delegate in some way, people have to specialize in some way, and they do so by choosing representatives to make decisions for them. It is possible to hope that the representatives will make rational decisions, though the people who elect them are susceptible to irrational appeals, as are the representatives themselves (irrational because emotional, irrationaly because based on irrelevant factors like money … etc).

        • says

          I come from a very different philosophical space than Brett, but he is not wrong that governmental officials tend to have paternalistic outlooks.

          Unlike Brett, I don’t think that is always bad. Paternalism is a part of every rehab program, every welfare-to-work program, et cetera. It has its place in policy.aking.

          But one of the reasons why we absolutely need to distrust government is precisely that it attracts people who think that part of their job is to get people to make better decisions. That mindset certainly does lead to a loss of freedom, which gets undervalued, unless it is held in careful check.

          Even more than the pot debate, you can see this with Sudafed. That policy is a demonstration of what happens when technocratic problem solvers are in charge. The freedom to treat your illnesses and choose the medication you want to choose is given no weight at all. Policymakers conclude that other medications can work and that therefore the costs of meth production outweigh the benefits of Sudafed. Your freedom doesn’t matter to them.

          You cam also see the mindset in the TSA’s sexual assault of airline passengers.

          Brett’s fear is real.

          • Andrew Laurence says

            AFAIK no other medication works as well as Sudafed, but in most states you can still get Sudafed without a prescription, you just have to ask for it behind the pharmacy counter, show ID, and not buy more than nine grams (150 adult doses) per adult per month. Those restrictions are annoying but hardly tantamount to a ban.

            Also, how do you know that the freedom to treat your illnesses and choose the medication you wanted was given no weight at all? Perhaps it was given almost, but not quite, equal weight to the desire to limit production of crystal meth. Your argument is like looking at Obama in the White House and saying Romney must have received no votes at all. :-)

            All that being said, I think the Sudafed restrictions are silly. Either don’t restrict it at all (my preference), or restrict it further. Nine grams per month (five adult doses per day EVERY day) is an awful lot for the occasional stuffed-up nose and sinuses.

          • Brett Bellmore says

            “Nine grams per month (five adult doses per day EVERY day) is an awful lot for the occasional stuffed-up nose and sinuses.”

            But not all that much for a family of allergy sufferers during ragweed season. But, hey, you can have each member of the family visit the pharmacy each month, in person. Just that much more inconvenient.

  4. says

    Interstate trafficking in marijuana will keep the Feds busy, but an impossible and ultimately losing battle as adjoining States will quickly vie for legal status to share in the newly formed wealth and economic advantage. Better for Federal changes to occur now to accommodate 50 States in the ultimately predictable outcome. The Feds moves should be to end the forced prohibition of marijuana Nation wide and begin concentrating on interstate and international commerce issues. Clinton has plenty to do.

  5. JSM says

    Here’s hoping these states do it right.

    - Addiction treatment for everyone who needs it
    - Vigorous enforcement of DUI laws (which must apply to all intoxicants)
    - Going after tax-dodgers and black markets
    - Keeping it out of the hands of minors (but not slapping them with a college-career-destroying charge if they’re caught)
    - Regulating and labeling potency, and testing for purity

    …and hopefully freeing up law enforcement resources to go after violent criminals.

    Paying for this with high taxes on the product.

  6. strayan says

    So Mark, what happens if the authorities are unable to prevent cannabis from crossing state lines? Does that make the legalisation experiment a failure?

    Meanwhile, prohibition hasn’t stopped cannabis from crossing state lines so… wouldn’t that mean the experiment with prohibition has failed already?

  7. strayan says

    BTW, why is it Washington and Colorado State’s responsibility to ‘prevent marijuana grown under their laws from crossing state lines and thereby subverting marijuana prohibition in the rest of the states’. Are you suggesting that cannabis prohibition doesn’t keep cannabis out of the states where it is prohibited?

    Reality subverts marijuana prohibition Mark. This is The Reality-Based Community isn’t it?

  8. says

    Oh. Ok.

    “But actually trying it on a national basis carries heavy risks. If it goes badly – if, for example, heavy use and use among teenagers quadrupled – it would be very hard to put the genie back in the bottle. All those new users would become potential customers for an expanded illicit market if the drug were re-prohibited.” “As long as those states prevent marijuana grown under their laws from crossing state lines…”

    Marijuana has been illegal and not allowed in this country for quite some time now. Interstate traffic has carried all of this illegal activity despite a complete Government ban. Prior to the ban there was no heavy use among teens, and there was no marijuana problem. The only thing that has changed is that a Federal level prohibition has been introduced, and that real life laboratory has already produced its results. Removing the introduction of the change should prove to reverse the obvious poor result of said change. That my friend, is very much more scientific of an observation and evaluation than “what if” type arbitrary factors with attached examples of unreality to boot.

    If the Federal Government has not stopped over 800,000 individuals from being arrested for marijuana offenses while a complete ban exists, how are they going to stop marijuana from coming out of Colorado and Washington?

    I find the entire line of thinking here to be quite irrelevant and unscientific from the start. Its confusing “what if” premise could benefit highly from a good SSRI.

    I did read the article, BTW.

  9. Tim says

    Removing the introduction of the change should prove to reverse the obvious poor result of said change.

    Exactly. Because, as science has clearly shown, if you put a glass of water in the freezer and said glass breaks then it will obviously repair itself once you let the ice thaw.

  10. rachelrachel says

    The “Federal level prohibition” was introduced in 1937, and the widespread use (among teens and others) started much later in the 1960s with the advent of hippiedom and a lot of other societal changes. The introduction of a Federal ban was not the only change that took place.

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