Advising Washington State on marijuana legalization

BOTEC Analysis, the consulting firm I started in 1985 to provide drug policy and crime control advice to governments, has landed the contract to advise the Washington State Liquor Control Board on implementing Washington’s I-502 marijuana legalization law.

In 2010, I wrote an op-ed for the LA Times pointing out the problems with Proposition 19, the proposal to legalize cannabis in California. The post focused on the conflicts between that proposal and federal law.

That has led to some queries about how someone who wrote that op-ed can help implement the Washington law. A fair question, to which there are three distinct answers.

1. Prop. 19 was very poorly designed, with local-option taxation promising a race to the bottom. The result would have been to flood the country with cheap pot, unless the feds stepped in with massive enforcement, and the feds weren’t going to hold still for that.

The Washington law is much more carefully drafted, with heavy taxation at the state level. Their problem may be, not exports because legal pot is so cheap, but a continued illicit market in Washington because legal pot is so expensive. That gives the federal government good reasons to let the experiment run. Of course Washington State will have to make its policies with due regard to what’s likely to happen in Washington, DC, but it’s possible that an accommodation could be reached.

2. Everyone has opinions about marijuana policy. Those opinions differ, even among experts. Four members of our team wrote a book together; the last chapter consists of four essays, one by each author, about what to do. They reach four different conclusions.

But for the purposes of this project, our personal opinions don’t matter. We aren’t being hired to tell the voters whether to legalize marijuana; they’ve already decided that. We’re being hired to use what we know to inform the Board about the likely consequences – good and bad – that might flow from different choices the Board might make.

3. Support for marijuana legalization has been growing nationally, but “legalization” isn’t a simple idea. There are many different ways to do it, each with advantages and disadvantages, some with better consequences, on balance, than others. In any case, there’s huge uncertainty about the likely results of legalization, since there’s no legal market for non-medical marijuana anywhere in the world today.

The voters of Washington have decided to try legalization, and it’s in everyone’s interest to have it done in a sensible way. If Washington designs a sensible system and the results are good; we learn something; if Washington designs a sensible system and the results are not good, we learn something else; if Washington designs a system full of holes all we learn is that bad choices have bad results, and we already knew that.

Therefore, whatever your opinion about marijuana, you should want the experiment done as well as possible, and we’ve been hired to help the Board do that.

Ask me five years from now what I think about legalization, and maybe I’ll have an opinion worth listening to.

My stated opinion is that a non-commercial system — grow-your-own plus consumer-owned co-ops — would likely outperform an alcohol-style commercial system, weighing advantages against disadvantages. But that’s not in the cards politically, because it doesn’t raise revenue. And it makes more sense as a national policy than as a state-level policy. Legal grow-your-own in one state could easily lead to a massive export trade: that’s the risk facing Colorado. Washington, which doesn’t allow home-growing, doesn’t face that risk. Just as well.


The BOTEC team includes a wide variety of experts, including three of the people from whom I first learned about drug policy: Mark Moore, Jerry Jaffe, and Tom Schelling.

We are all – speaking for the team now – a little bit daunted by the task ahead, but mostly excited. All the claims we’ve made over the years about knowing how to make smart drug policy are about to be put to the test, and the stakes are high.

Any honest assessment of the situation needs to acknowledge uncertainty and change. Whatever system Washington State puts in place by December 1 will face a period of rapid adjustment as the industry and consumers deal with the new situation. So it’s extremely unlikely that the first set of regulations – no matter how skilfully designed – will be the perfect set of regulations for the long term. That suggests the importance of adaptability. Washington State needs to craft an initial set of rules that lends itself to adaptation and to develop a monitoring process that will help the Board, the industry, and consumers learn quickly from experience.