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.

Comments

  1. MikeM says

    Good luck! So the academic rubber will meet the potholed-strewn road! I’ll watch from a safe distance.

  2. darkcyle says

    Congratulations are in order. I’ll be watching closely, since how you do your job will directly affect me and many others I know. As a current legal medical grower, I hope to establish a buisness selling to the State. I’ll cheer your good decisions and grouse about the ones I dislike, but I really do wish you the best of luck.
    You are not going to stop diversion, I hope you understand that is human nature. My Father used to travel to Colorado for Coors when we lived in the midwest, and people will be traveling to Colorado and Washington for pot. Just the way it is. That being said, the best way to avoid a situation where people growing for the illicit market simply begin exporting their product is to make sure there is a clear route to legitimacy that average growers can navigate.
    I’m local to Washington, know the “lay of the land” and you have my e-mail address. If I can help your process I hope you’ll let me know. Congrats.

    • SorryCharlie says

      I doubt that the current medical marijuana system will be left intact, especially the dispensaries, which are not legal.
      A dual system of taxed/regulated and untaxed/self-regulated will not suffice. I am in favor of I-502 and the trial and error period.
      I hope that there will be a way for mmj dispensaries to come out of the cold, but perhaps, many will just go back into the shadows.
      Perhaps, a simple desist letter to the landowners of these dispensaries would be effective, but draconian and laws of unintended consequences.
      We shall see.

      • darkcycle says

        I’m sorry, SorryCharly,
        The passage of I-502 does nothing to in any way alter or change the current Medical Marijuana Laws in place. The dispensary system, while not explicitly allowed under law is nonetheless going to stick around in it’s current Cooperative form. The State has shown no interest in shutting down or altering the current mmj laws to eliminate them, so they are a feature that will remain. Since they serve medical patients, they are not in direct competition with the State’s scheme. I’m gonna be around, no worries about that. It’s just a question of in what form?

      • darkcycle says

        …sorry. I’d like to add this as well…what exactly is it that you think the growers that supply the black market (note I’m talking here about the purely illicit growers, the ones who currently grow enough pot to supply the non-medical needs of this State)will do when the State opens it’s stores? Just say “Oh gee, I guess I’ll get a job at Walmart for minimum wage…” and stop planting seeds? They will continue, and that will result immediately in two, easily forseeable results. First, marijuana grown in the State of Washington will be diverted out of State, and two, the current growers will undermine the State program by attempting to undercut and over grow the legal suppliers. And if history is to be any guide they will succeed, too. After all they have lived and in some cases thrived under a system where they are purely illegal. They are easilly able to grow and avoid detection, that is what they’ve been doing all along. Under the premise that easily forseeable consequences are not unintended, that would be tantamount to sabotage from within. I would hope Mark’s reccomendations will allow a safety safety valve to assure these very resourceful individuals a place. They likely will not just “Shove over”.
        Also, a note about initiatives in Washington State. The initiative process here was very carefully designed to be narrow in focus. If I-502 had been written to legalize marijuana for personal consumption AND modified a current existing law, it would have been struck down in the State Courts. In order to modify existing law, a new proposal would need to be passed in both houses and signed into law by the Governor. It cannot just be included in the implementation of the new initiative. That would exceed the single topic clause. So it’s a more difficult issue than just including the reccomendation in your report. Even if it were included, the State could not act upon it. It would require a seperate bill. Much more difficult.

  3. says

    The Washington law is much more carefully drafted, with heavy taxation at the state level.

    But that doesn’t negate the following sentiment, mutatis mutandis: any grower or seller paying California taxes on marijuana sales or filing pot-related California regulatory paperwork would be confessing, in writing, to multiple federal crimes. And that won’t happen

    There is currently no legal commercial (non-medical) production and distribution system for marijuana anywhere in the world.

    Strictly speaking, not true.

    • Justin Hale says

      Where would that be? I just googled “countries with legal marijuana sales” and found None. I found a few countries where personal growing / possession
      is tolerated, but nothing like full legalization such as Wa. State is planning.

      • Freeman says

        Click the links, Justin. Those two shops are in India. The first one has two signs in English reading “COME & ENJOY GOV’T AUTHORISED BHANG SHOP”.
        I don’t know the details, but it sure looks to me like evidence of a “legal commercial (non-medical) production and distribution system for marijuana anywhere in the world”.

        • Katja says

          This is a subtle aspect of drug law in India: Under the Narcotic Drugs and Psychotropic Substances Act, only parts of the Cannabis plant are considered drugs. Bhang refers to the leaves and seeds of the Cannabis plant, which are not illegal (or rather, not included in the definition of Cannabis under the act), unlike Cannabis resin (charas) and the flowering tops (ganja).

          This is in agreement with the Single Convention on Narcotic Drugs, which says: “Cannabis” means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated.

          Cannabis is listed in Schedule IV of the convention, Cannabis extract and tinctures in Schedule I of the convention. Cannabis leaves and seeds are not.

          This is why the NDPS complies with the convention despite allowing for the legal sale and consumption of Bhang in India (the underlying cause is, of course, the role of Bhang in Hinduism, specifically with respect to Shiva). Cannabis is still prohibited (though the penalties are much lower than in the US).

          However, this does not resolve the problem that cultivation of Cannabis plants, regardless of the above, is still subject to article 28 of the convention, which is very strict (essentially the same as for opium). Article 28 also requires the signatories to prevent misuse of and illicit traffic in the leaves, but there appears to be a fair amount of discretion in the wording.

      • says

        Uruguay plans to do so, and is worth following.
        How will they handle the UN Single Convention? Perhaps denounce the cannabis clause, explain the policy, and wait to see how the other parties react. I bet they won’t expel Uruguay, as its cooperation is still needed on other drugs. The logical thing to do would be to convene an international conference to renegotiate the cannabis ban to allow for policy experiments. More likely is fudge until the issue becomes unmanageable.

  4. Mike says

    Mark Kleiman wrote:
    “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.”

    While I-502 didn’t provide for grow-your-own, that doesn’t mean it would not be good advice to suggest that grow-your-own should be considered. The feds can worry about “export” since Washington DC seem inclined to waste resources on that and will probably not be dissuaded by anything Washington State does based on your advice given their general bullheadedness on this.

    I understand the part about revenue-hungry politicians. Somebody needs to tell them that trying to make a cash cow out of cannabis is about as dumb as those ideas of “taxing” illicit drug revenue and proceeds were — far better as a campaign soundbite than as policy. But doing that will accomplish _one_ thing…creating a jobs program so that any savings in law enforcement will be shifted to “regulation enforcement.” In general, we should be trying to create policy that involves fewer people with the legal system. It’s counterproductive, we know that already and it won’t change any if all those lawmen simply switch badges to “I-502 Enforcement.”

    De-escalation should be a goal. To do that, you create policy that pushes cannabis pricing down, instead of trying to maintain it at the “drug cartel premium” as a cash cow. Is THAT good policy? No way.

    And good policy should embrace the fact the state is delusional if it thinks it can control everything, and that we’re simply going to switch from one form of control to another. Good policy on this would be to push as much away from the need for regulation and other structural forms of state imposition. Policy that seeks to make the Average Joe and Jane a criminal for growing their own is just dumb, dumb, dumb…
    Didn’t folks just vote against that? If it was mistake to not make a provision for that in I-502, then that should be said, as such a modification may not be alone among your findings. If you make sense to them and let the voters pick what people support, that closes the loop, which I think policy makers, if not policy advisers, too often ignore, mis, or don’t have a clue about.

  5. Chris Morton says

    Agreed. This is NOT “legalizing marijuana”. This is regulating it, there is a VAST difference. I’d go so far to say Legalization and Regulation are total opposites. People might figure that out when they see people are still being arrested and fined for ridiculous technicalities and regulation. Until Cannabis is treated like coffee, it will never be “legal”. Prohibitionists are a bunch of pontificating fools. If the feds have their way, the new “industry” will fail and be a shining example for their arguments against it, missing the point entirely. I also do not like Medical Cannabis, as valid as it may be, it is just another step towards seeing marijuana as something that needs control. Controlled Substance is the term i seek to eradicate from being associated with Cannabis. It is truly backwards that I can walk into any convenience store and buy “5 hour energy”, “stamina rx”, etc, but I cannot legally grow a plant that is not even slightly toxic. Oh wait, I can grow up to 15 plants if I am a medical patient. Better get my med card. Oh the joys of pencil pushing moralists and their agenda to eradicate personal responsibility by scapegoating and attacking anything they can muster enough support to ramrod blindly.

    • says

      Yes! Chris is right! Glad to see Mark & the team in on this but hope they tell them know what they won’t want to hear.

  6. Brett Bellmore says

    “The voters of Washington have decided to try legalization, and it’s in everyone’s interest to have it done right. If Washington does it right and the results are good; we learn something; if Washington does it right and the results are not good, we learn something else; if Washington does it wrong, we learn nothing.”

    That’s a highly unrealistic assessment, I think. There are plenty of people who are committed to the illegality of pot for reasons which have nothing to do with whether it “works”, and from their perspective, there is no upside to this being done “right”. It’s in their interest to make sure things turn out as badly as possible. Unfortunately, there are two “Washingtons” that have a say in whether this works, and only one of them wants a success.

    Any realistic planning has to take this into account. If the state, Washington, is to succede at this, it will have to do so despite the worst efforts of the federal Washington.

    • Justin Hale says

      I would place Rep. Chris Hurst into the catagory of one who is working hard to muck up the program as much as possible.

  7. Michael yoshida says

    Its gonna be like tobacco why grow my own plant when i can go buy a pack thats all ready good flavor and rolled and packaged nicely…and for the excess amount make paper…industrial hemp is the way of the future quit killing trees

    • Warren Terra says

      Industrial hemp has negligible THC content, and I’d be very surprised if people think it’s a good efficiency to use the same plant to make industrial pulp and psychoactive product.

      Mind you, the use of industrial hemp might currently be greatly impeded by regulations meant to hinder the production and processing of hemp varieties with higher THC content.

    • Justin Hale says

      Michael, MerryWanna is easy to grow,there are thousands of people doing it. Why should a person have to pay $10-17.00 per gram for something they could easily grow themselves. The excess marijuana would not be useful as fiber,just as agricultural Hemp is useless as a recreational drug.

      • Tractarian says

        I’d be very surprised if people think it’s a good efficiency to use the same plant to make industrial pulp and psychoactive product.

        Why not?

        The excess marijuana would not be useful as fiber,just as agricultural Hemp is useless as a recreational drug.

        One does not follow from the other. It may very well be the case that, while agricultural hemp won’t get anyone high, recreational cannabis has fibers that cannot be used for recreational purposes but are useful in some other way (sticks and stems, anyone?)

        MerryWanna is easy to grow,there are thousands of people doing it. Why should a person have to pay $10-17.00 per gram for something they could easily grow themselves

        Tobacco is easy to grow, too, and no one does it. Why? Division of labor. Economies of scale. You may be able to grow weed for less than $10 a gram but it damn sure ain’t gonna be as good as the hydroponic stuff that professionals spend a lot of money on.

        • Justin Hale says

          ” Why not?”
          Because Agricultural Hemp is grown for fiber and seed,sometimes these plants can be up to 15′ tall. Hemp grown for recreational drug use is called Sensimillia,which means “without seed” and it is grown for it’s flowers/buds,these are short,fast growing plants with no seed and very little commercial fiber value.
          ” One does not follow from the other. It may very well be the case that, while agricultural hemp won’t get anyone high, recreational cannabis has fibers that cannot be used for recreational purposes but are useful in some other way (sticks and stems, anyone?)”
          It’s like corn,some corn is grown for human consumption,sweet and tender,some corn is grown for silage ,or animal feed,some corn is grown for ethanol fuel. They are all Corn ,but different varieties bred for their specific products.I did make a fine walking stick out of a cannabis plant once.
          ” Tobacco is easy to grow, too, and no one does it. Why? Division of labor. Economies of scale. You may be able to grow weed for less than $10 a gram but it damn sure ain’t gonna be as good as the hydroponic stuff that professionals spend a lot of money on.”
          Have You ever grown tobacco? I haven’t,but I doubt it would grow very well outside in the state I live in. As far as a person being able to grow good quality MJ ,well you’re just dead wrong on that matter,how many growers do you know? Hell I read a news item today that said cannabis users were looking for MJ with LESS of a high,go figure.

  8. Freeman says

    You know, it would be mind-boggling if you didn’t tell your clients they can’t safely run massive enterprises growing and selling marijuana as long as it remains a federal felony, that an absurd five-year mandatory sentence for open and non-violent pot-dealing potentially awaits any participant, that keeping your books accurately is a fine trait, but it doesn’t make illegal activity legal, and that state sanctioned “recreational” pot-dealing won’t be an exceptionally lucrative business even though you can go to prison for it, precisely because the state intends to claim the entire risk premium for itself in taxes.

    You’re not going to be risking your freedom and livelihood for your participation in this experiment, so please keep in mind that your work will affect heroes who will be. Heroes like Matthew Davies and my friend Darkcycle. These are real people with real families, willingly risking federal prison time, not in hopes of getting filthy rich — there’s little hope of that — but with the goal of finally ending the absurd prohibition of cannabis and all of it’s horrifying side effects on society. When the first casualty — and there will likely be many — of federal reaction to this challenge to it’s power to prohibit is sentenced in federal court, I hope you’ll come up with something a little more reverent to say about it that something like “it’s not as if the existence of federal law were a deep mystery that no mere [Washingtonian] should be expected to figure out”.

    • darkcycle says

      I’m not a hero, freeman. I started growing to save my own life, and I likely would have given up drug law reform activism by now if not for my adopted sons (who happen to be African American). Purely selfish motives. In my son’s cases, the biggest potential pitfall in their paths are this nation’s selectively enforced, racially motivated and discriminatory drug laws. This is unacceptable. I intend to see my sons reach their full potential, and not be consumed by the prison industrial/ slave labor system. As for me, I’m white, small scale, careful, and as “by the book” as I can possibly be. So I’m at very little risk. I intend to keep growing because I’m good at it, I love it, and it’s helps to have my second income to contribute to a family that eats like a herd of bison.
      I am really not a “hero”. But you made me feel pretty good. Thanks.

      • Freeman says

        Matthew Davies was white, careful, and as “by the book” as he could possibly be too. He was busted when someone broke into his grow warehouse. As for scale, federal law provides a minimum mandatory sentence of 5 years for as few as 100 plants, and can send you to prison for fewer than that. You are working to right wrongs, challenging the power of the U.S. government, taking very real risks to your own personal freedom so that others, like your sons, might be freer. Your humility is appreciated, but in my eyes your actions are no less than heroic, whatever your motives.

  9. Alejandro Hope says

    Mark,

    Congratulations! I think it-s a great news that decision makers in Washington will have access to world-class advice on an issue with global consequences.

    I wish you the best of lucks,

    Best regards from Mexico.

  10. Justin Hale says

    I wish the Board good luck . I voted for I-502,although I thought there should have been a provision for Home Growing.
    I am not real optomistic about the choice of Consultant,especially after reading some of his comments,I will be reading his latest book.
    As a MedMJ person I could grow my own,I forsee a huge raise in the number of MedMJ patients.

  11. D. Wieland says

    If marijuana wasn’t illegal in the first place nobody would pay any attention to it. But since it is like the old saying that goes: For every action there is an equal and opposite reaction. What I referring to isn’t so much about the marijuana plant it’s self. But, more to a point that if you try to force people to live their lives by telling them what they can and cannot do in their lives, there will always be resistance to the opposition. It would be more pertinent to educate people about these plants and substances than to force people from having access to them. Choice will create responsibility. Laws and illegalities will only create irresponsibility’s. And yes, there will always be addiction no matter what. Reducing addiction comes with the realization of a choice to be responsible. And that the choice is your own and not decided for you.

  12. Mike Dar says

    After one State gets a Taxable framework accomplished, others will follow, perhaps most. This will make large scale State Exporting on an illegal basis a moot point. Then individuals will likely not be a target for ‘grow your own’ as a working model in the scheme.

    I do not see where a seed and gallon of water ‘grow your own’ will be a viable targeted grouping of the sector of users, unlike Alcohol, which needs corn, sugar, bottling, tanks, piping,disposal, high temperatures ect., I truly see tax and regulate just as a transition phase.

    • John Thomas says

      Right. Colorado is very close to the ideal policy, since they allow home-growing. Reformers will never stop activating until home-growing is allowed nationally. It is a crucial reform that will keep the commercial/taxing system honest.

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