Cannabis legalization: “Compared to what?”

David Brooks and Ruth Marcus both have anti-cannabis legalization essays up. Brooks doesn’t mention 650,000 arrests a year, 40,000 people behind bars at any one time, or $35 billion in annual illicit income. Brooks does mention the issue of personal liberty, but immediately bats it away: apparently the liberty to do what Brooks disapproves of isn’t really valuable. Marcus mentions that pot-possession arrests are a bad idea but doesn’t say anything about how to reduce them; she just dances gaily on, wishing that the bad consequences of legalization could be avoided. Both Brooks and Marcus seriously overstate the evidence about the damage done by cannabis by flipping back and forth between studies of heavy, chronic use and conclusions simply about “use.” But they’re right to say that cannabis use is bad for some people, and that the number of people harmed by pot is likely to go up when it’s legally sold.

At the same time Bruce Bartlett writes in favor of legalization without ever mentioning drug abuse. He invokes something he calls “economics.” I take it that he uses “economics” to mean the principle of revealed preference, which asserts that whatever a person chooses is what that person wants, and that getting what you want is, by definition, beneficial. He asserts that he is “not aware of a single economic analysis” coming down against legalization, without giving any evidence of having looked.

Well, guess what? If you ignore the benefits of legalization, it looks like a pretty bad idea. If you ignore the costs, it looks like a pretty good idea.

And of course since Brooks, Marcus, and Bartlett all are engaging in the middle- school version of policy analysis that simply ignores countervailing arguments and blows past the compared-to-what question, none of them has to wrestle with the hard questions:

* If cannabis remains illegal, how should those laws be enforced? Whether cannabis use is bad for you is uncertain; that black-market activity, arrest, and incarceration are all bad for you is unquestionable.
* Should cannabis be legal to use, but not to sell? If so, should individuals be allowed to grow for their own use, or should we leave the industry to the criminals?
* If sale is permitted, should it be restricted to not-for-profit cooperatives or to a state agency?
* If commercial sale is permitted, how high should the taxes be? What rules should apply to marketing?
* What information should be provided to consumers by sellers or by public or NGO bodies? If some forms of the drug are more dangerous than others in terms of unintentional overdose or habituation, should the more dangerous versions carry warning labels?
* Should there be a minimum legal age for cannabis purchase and use? If so, how should those laws be enforced? In particular, should underage users be subject to arrest?
* What rules should apply to driving after cannabis use, and what rules of evidence should apply?

I continue to think that continued prohibition may be the worst option under current U.S. circumstances; I’m still waiting for someone who opposes legalization to sketch a reasonable alternative to the status quo. I’m inclined to think that full commercial legalization with minimal marketing restrictions and low taxes – which is where the country is currently headed – might well be the second-worst. But for now the public debate is dominated by those two bad options.

If Brooks and Marcus, and those who share their concerns, want to do some actual good in the world, they need to get down in the trenches and think concretely about policies. Standing athwart history shouting “Stop!” is an undignified posture.

Update Of course Matt Welch is right to criticize Brooks’s equation of a state’s decision not to make some activity a criminal offense with “encouraging” that activity. But equally of course creating a for-profit cannabis industry – which will derive most of its revenue from people who smoke too much – and allowing that industry “commercial free speech” means that the encouraging will go on just the same, even though the state doesn’t do it. In a sane world, it would be possible to allow an activity but forbid its promotion by firms trying to profit from the weaknesses of their consumers; the notion that there’s no middle term between criminalization and allowing aggressive marketing is bizarre on its face.

Welch and his libertarian friends just love “commercial free speech,” a doctrine that exists, as far as I know, only in American law. Lots of places have open political discourse but don’t, for example, let Big Pharma peddle complex medicines directly to sick people. Perversely, this makes it harder to reduce the scope of the criminal law.

Comments

  1. Warren Terra says

    If you ignore the costs, it looks like a pretty bad idea.

    I assume you meant “good” instead of “bad” here?

  2. strayan says

    Most of us in drug law reform don’t have the luxury of endlessly debating every nuance of the costs and benefits of legalising cannabis (neither do the people being arrested and jailed or the people being beheaded in Mexico). Otherwise we’d be totally silly and inefficient as reformers/activists and nothing would ever get done. We all, at one point or another, have to say: “this is where I stand. And it is from this standpoint that I have to act.” You see, Mark, the difference between you and me, is that I didn’t wait to see which way the ‘winds of change’ were blowing (and what position paid the most) before I adopted my stance on cannabis laws. I’m glad you’re working for us now Mark, but I won’t forget why.

    • Anonymous says

      I don’t think that’s fair to Mark. As far as I know he has always opposed pot prohibition but has also always been skeptical of full legalization. He may be wrong but he is consistent.

      • Mark Kleiman says

        But Strayan is so sure of his righteousness he thinks it’s OK to tell a few lies along the way; worrying about the truth would make him silly and inefficient. What he really hates is that I’m not “working for” anyone or anything but my idea of the public good. I have roughly the same beliefs now as I did when the drug war was all in fashion, and a story about my first book on marijuana got knocked off the front page of the New York Times because Abe Rosenthal thought it wasn’t sufficiently warrior-like. I like to think that I’m pretty good at responding to new facts and ideas, but not responsive at all to changes in ideological climate.

        • strayan says

          You deny favouring the position that cannabis should be illegal to sell right up until you billed Washington State nearly a million dollars in consultancy fees for advice about how they should, err… sell it?

          Are these your words?

          “I continue to favor a “grow your own” policy, under which it would be legal to grow, possess, and use cannabis and to give it away, but illegal to sell it. ”

          Do you still think it should be illegal to sell Mark? Why did you change your mind?

          • J. Michael Neal says

            You are taking his comments out of context to try to demonstrate a drastic change that never happened. Mark has always been clear that he is opposed to commercial sales of marijuana. That was true at the time of the single sentence you quote (which, for reference, was written in February, 2009 rather than any time close to the passage of referenda in 2013) and as far as I can tell it’s still true now. He was then and I’m pretty sure is still now in favor of allowing small scale co-op operations for growing and selling pot.

            And he was absolutely up front about what he was doing in the state of Washington. In the post where he announced that he would be working for them he said that they were not going to be adopting the approach he most favored but that his goal was to get them as close to what he determined was optimal as he could, given the personalities involved and the actual law that had been written.

            You are a lying fool who either has no problem misrepresenting what other people say or is so blinded by self-righteousness that you can’t comprehend it. Either way, you demonstrate on a regular basis that no one should take you seriously.

    • CoffeeJunkie says

      Right. A regular Walter Mitty in your own mind.
      Better call Gil Kerlikowske and let him know that you
      are ready to negotiate the terms of his surrender.

  3. Mark Kleiman says

    Yes, as J. Michael Neale notes above, I went into the Washington State assignment believing that the policy established by I-502 was far from optimal, but committed to doing my best to make it work. And yes, given a choice between full commercial legalization and “grow-your-own” only, I’d prefer the latter. That position gets more difficult to maintain as the concentrates – which aren’t easily produced by users – grow in market share. But I’d strongly prefer either a not-for-profit-only production system or a state monopoly to a commercial free-for all.

    So much for the substance. Now to the rules. The RBC is a designated “play-nice” space. Insults to posters or other commenters are not permitted. (Neither is foul language, which I don’t object to but gets the site filtered out in, for example, libraries.)

    It’s clear that Strayan has no taste for civil discourse and no scruples about misrepresentation. I’m glad that others have responded to his comments, so I’m leaving them up. But from now on Strayan is banned from RBC. I don’t do this cheerfully, but neither will I hesitate to repeat it with others similarly inclined.

  4. Brett Bellmore says

    Remarkable, that somebody could write both the first and second paragraphs, without a trace of irony.

    I think my general objection to your form of partial “legalization”, is that it is sufficiently restrictive to guarantee a substantial black market will continue to exist. Thus preserving one of the excuses for our slide into a police state.

    • Ebenezer Scrooge says

      I’m not sure you’re right. Many of Mark’s restrictions seem designed to keep the big corporations out. Big corporations don’t do black markets–although they’re very good at sidling up to the limits of the law. So I’m not sure you’re wrong, either.

      • Brett Bellmore says

        My reasoning is that Mark’s restrictions could very well succeed at keeping legal corporations out, but that would not prevent large scale business, it would only assure that it would be illegal large scale business.

        After all, home brewing was widely practiced during Prohibition, too, much of the time legally, but that didn’t stop Prohibition from generating a huge black market.

        • Ebenezer Scrooge says

          There is a real distinction between large illegal enterprises and large legal ones. Large illegal enterprises have a hard time stimulating demand, at least if their product is not physiologically addictive (and nobody thinks that marijuana is addictive in the sense of opiates or nicotine.) They can satisfy whatever demand is out there, but have a hard time persuading previously unconvinced people that their product is fun! kicky! sexy! you deserve it! Large legal enterprises are very good at this.

          So if you can keep large legal enterprises out of businesses such as loan-sharking or marijuana, there will be less demand for the product, even if large illegal businesses arise to meet whatever demand may be there.

          • CharlesWT says

            On the other hand, it’s difficult to sue an illegal businesses if you get some product that makes you sick.

          • Brett Bellmore says

            But there will be large illegal businesses corrupting the legal system, getting into turf wars, financing world terrorism, and so forth. Which is a heck of a price to not see pot ads on TV.

          • Ebenezer Scrooge says

            Brett,
            I assure you, legal businesses are far more efficient at corrupting the legal system than illegal ones. Have you seen a meth lobbyist lately? If so, is s/he working for the meth cooks, or the Sudafed manufacturers?

          • Brett Bellmore says

            Have you see a drug war exception to the Constitution lately? I’d call that corrupting the legal system.

          • Ebenezer Scrooge says

            Brett,
            This thread is probably dead. But if it isn’t, I implore you to read what your interlocutor actually said. You seem to think that I was contradicting you when I was not.

            You said that prohibition would not keep illegal large businesses out. I didn’t disagree, but pointed out the legal large businesses had some competitive advantages over illegal ones, so there was some argument to be made for banning legal business.
            You seemed to view this as a challenge, and responded that illegal businesses would corrupt the legal system. Again, I didn’t disagree, but pointed out that legal businesses were no slouches at that, either.
            You then reiterated your contention that illegal businesses would corrupt the legal system. I didn’t disagree, and still don’t disagree.

            There are reasons people respond to you with invective rather than reason. This thread provides an excellent example.

  5. G R Ray says

    In a sane world, it would be possible to allow an activity but forbid its promotion by firms trying to profit from the weaknesses of their consumers;
    Sounds like the current tobacco status.

    • Mark Kleiman says

      If you think tobacco companies don’t market aggressively, think again.
      And if you think that the freedom to market unsafe consumer products is fundmental, we have different notions about “freedom.” There are lots of countries with ample political competition and civil liberty that restrict temptation-for-profit.

      • Brett Bellmore says

        I think it matters a great deal whether the product is “unsafe” to the user, or to somebody else. Because I think people are entitled to make choices you don’t approve of, so long as they’re the ones bearing the consequences.

        Which is, after all, where liberals and libertarians part ways. Liberals figure that if your notion of what somebody ought to do is better than their idea, (And when don’t you think that?) you’re entitled to cram it down their throat. Libertarians figure people are entitled to go to hell in a handbasket, if that’s what THEY chose to do. And that we may argue with them, but in the end it’s their life, and their choice.

        And “aggressive” marketing is just a metaphor. Market a product ever so aggressively, I have a choice. Government doesn’t give me choices. THAT is real aggression.

        • Laertes says

          What is it with you guys and cramming things down throats? Do you all have that cliche hotkeyed or something?

        • Anonymous says

          The “rational consumer” is a chimera; most human beings are not rational most of the time, but rather are creatures of habit, craving, and social conformity.

          And nobody is an island, and everybody bears the cost of everyone else’s decisions to a greater or lesser extent.

          Aggressive marketing is “cramming down the throat” of a normal, emotional, socially-bonded human being, every bit as much as being told what is legal or illegal by the government — and then some.

          So we all suffer from the effects of unfettered “commercial free speech”, whether it influences our own personal decisions or not.

  6. Jacob says

    Welch and his libertarian friends just love “commercial free speech,” a doctrine that exists, as far as I know, only in American law.
    We don’t call it “commercial free speech” in Canada, but commercial advertising is protected by s. 2(b) of our Charter of Rights and Freedoms (which provides for “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”). However, like other Charter rights it is guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

    • says

      Well, yes, and the Supreme Court of Canada struck down a whole raft of anti-tobacco advertising measures in 1995, so the point about it being a dangerous doctrine is valid. It is crazy that a government is allowed to criminalize things, but not legalize them and criminalize pushing them.

      • Anonymous says

        If that’s how the legal system must operate, then make “using narcotics” an infringement punishable by a $1 fine, waived for the first 100 offences, but make “selling narcotics without a licence” a capital offence punishable by being force-fed (in one dose) an equivalent quantity of whatever stuff you’ve sold since your previous conviction. But if that happens not to be lethal, well, so be it; you might even recover.

  7. Dead or In Jail says

    A question for Professor Kleiman:

    How much, if any, of the Portuguese approach of “free counseling” (anti-addiction) can be imported to the US? There’s no need to unnecessarily re-invent the wheel.

    P.S. – I just checked out Marijuana Legalization: What Everyone Needs to Know from the liberry so if the answer is in the book, I apologize.

  8. says

    Ah, the “weakness of consumers.” There’s the key phrase. The notion of building policy based on protecting consumers from themselves (or their own weakness) is common, but not the true hallmark of a free society. It is, in fact, an admission that this experiment in freedom is a failure – that people are unable to handle it and some group of people must step forward to rule over them…. for their own good.

    This is the part that gets messy.

    There’s always a group ready to step up and proclaim that they know better and that they humbly agree to set the limits to which others must follow — that the weakness of women means they should be protected from decisions about sexuality; that the weakness of addicts means that drug users should be protected from their own choices about drugs; that the weakness of fat people means that people should be protected from making choices about their food; that the weakness of the general population means that they should be protected from unfiltered information, commercial or otherwise.

    There are others who take a different approach. They agree that members of society make bad choices and are often weak, and that some of those will fail. But they believe in the importance of freedom and would rather have public policy that better educates consumers about their choices while making them free to make those choices. They care about humans as sometimes flawed free individuals, not as members of a weak class.

    It’s no surprise that members of the first group often incorrectly claim that members of the second group don’t care about people.

  9. Maynard Handley says

    “Marcus mentions that pot-possession arrests are a bad idea but doesn’t say anything about how to reduce them; she just dances gaily on, wishing that the bad consequences of legalization could be avoided.”

    Ignoring the issue of cannabis or Marcus in particular, there is a very real true point here that America, particularly ignores: there is value in having different levels of “social” disapproval of certain behaviors. The US, especially the post WW2 (or maybe post 60s?) US, is apt to see the world in binary, or perhaps trinary: there are crimes, there are misdemeanors, and anything else goes. This is an extremely problematic viewpoint. It means that we can get rather too much of what’s on the “anything goes” side of the ledger, but that when we conclude there is too much, our only possible response is drastic over-reaction. (Depending on your tastes, you can put, for example, guns or porn in the “too much” category, or kids taking medicine to school/hitting each other/kissing each other in the “drastic over reaction” category.)

    I don’t have a solution for how to deal with this. Obviously the historical solution has been social disapproval of some behaviors, along with informal enforcement against those who insist on transgressing, and we all know how that turns out for Jews, for African-Americans, for gays, for anyone who isn’t EXACTLY like the neighbors. But it does seem that the US solution — very specific laws, with very strict enforcement — has its own terrible consequences, and can be hijacked in ways as bad as the past. (I’m think for example of the recent revelations that Nixon DELIBERATELY aggressively ramped up the drug war to punish and ensnare individuals who, as a group, tended to be his enemies; and the same thing, with somewhat more complicated background issues, appears to be going on today with African Americans and prison.)

    However it does seem to me there are SOME things we could do, to try to rein in excess, most obviously widespread disapproval of those public individuals that flaunt their misbehavior, and corporations that encourage such behavior. I’m thinking example of the fact that, even as certainly TV, and to some extent movies, have reduced their validation of smoking as normal behavior, they have simultaneously aggressively ramped up their validation of marijuana use and frequent drinking as normal behavior (and their stigmatization of those characters who disapprove).
    As I’ve said, I don’t think law is a great solution here, but I do think that we could do with rather more frequent and very public calling to account on TV, before Congress, and as individuals in dinner parties, the executives, the show runners, the writers, the directors, the actors, responsible for this — castigating each of them, asking them if they really want (and want their children) to live in the world that they are encouraging. Heck, if I had my druthers, this would be bare-knuckle combat — no polite ignoring what’s happened to a star’s child but full in your face: “You were in a network show that ran for 7 years that constantly showed alcohol as a necessary part of all social occasions, and now your sixteen year old daughter is in rehab. Don’t you think you bear a massive responsibility for what happened to her, and for the ruined lives of many other alcoholics across America?”

  10. says

    “… the number of people harmed by pot is likely to go up when it’s legally sold.”

    … assuming more problematic use, but I think you fail to factor in harm reduction, education, safer forms of ingestion, social customs and mores, etc., all of which
    are impeded by criminal prohibition. Suppose the number of heavy users goes up 15 per cent, but the number of people who smoke cannabis drops by 25 per cent? Suppose
    legally regulated cannabis has a higher CBD/THC ratio?

    • J. Michael Neal says

      . . . I think you fail to factor in harm reduction, education, safer forms of ingestion, social customs and mores . . .

      No. No, he doesn’t. Please read what he actually wrote, not what your imagination comes up with to put into his mouth. You are confusing net harm with its components. Mark pretty clearly DOES take all of those things into consideration. If he didn’t he wouldn’t say that complete legalization is preferable to the current situation.

      • says

        The closest thing I see in this post to a recognition of harm reduction is the question, “If some forms of the drug are more dangerous than others in terms of unintentional overdose or habituation, should the more dangerous versions carry warning labels?”

        Mark assumes overall usage rates will go up in a legal regime, although there is little evidence to support this theory. See for example falling tobacco usage rates, or solvent usage rates, or cannabis usage rates in the Netherlands. Here in Canada, the courts have concluded that cannabis usage rates rise and fall with no statistical relationship to cannabis laws and their enforcement.

        However, if cannabis use goes up in a legal regime, one needs to factor in “abuse” going down before predicting that “the number of people harmed by pot is likely to go up when it’s legally sold.”

        If, for example, vaporization becomes more popular, then the number of people harmed by cannabis would go down, even if usage rates go up. What if the age of initiation goes up? Add in the benefits of quality control, other forms of harm reduction, the evolution of social customs and mores (which prevent casual use from becoming problematic chronic use), the development and availability of paraphernalia, reality-based education, responsible use by example, labeling, etc. The percentage of users who use problematically is likely to go down when it is legally sold. Maybe Mark has laid this out in a spreadsheet somewhere and I missed it. How much would usage rates need to rise for net harm to go up in a legally regulated regime?

        I think usage rates would need to rise quite dramatically to result in “the number of people harmed by pot” going up in a legally regulated regime.

        There is a natural cap on the number of people inclined to smoke cannabis. For one thing, some people (most?) are adverse to inhaling smoke. Some are adverse to altering their state of consciousness. Many do not like the high, they find cannabis makes them drowsy, anxious, forgetful, confused or whatever. Those who use chronically are more often than not self-medicating ADHD, PTSD, OCD, etc., (for which they might otherwise use alcohol, pharmaceuticals or other illicit drugs), and most of them eventually cut down or quit as they mature or change their lifestyles; a new job, a new partner, a new city, etc.

        • Mark Kleiman says

          If wishes were horses …
          All of the good stuff you’re wishing for might come true. Or it might not.
          Just for example: Yes, aversion to smoking limits the extent of cannabis use. (Though note that tobacco smoking peaked above 50% of the adult male population. But guess what? Though the illicit market delivers almost exclusively herbal cannabis, concentrates – which are vaporized, not smoked – make up a growing share of the licit market. So do pre-made edible and potable products. So in a licit market, those who don’t want to smoke can conveniently get their cannabis in some non-smoked form. How does harm net out? No one knows. And that, of course, was my point. This is not an area where dogmatic assertion is a good substitute for careful observation.

          • says

            Your point wasn’t that “no one knows,” it was that cannabis-related harm will “likely” go up under legalization. On what careful observations do you base this prediction?

            What harm do you associate with the use of edibles and vaporization?

            Concentrates, such as hashish and oil, which are more often smoked than vaporized or eaten, have been available for thousands of years. Granted, herbal cannabis is more common on the black market, but that too results in more smoke passing through more lungs.

            When tobacco use peaked, every car was equipped with an ashtray and a lighter, there were smoking sections in airplanes and restaurants and Bogart was smoking up the silver screen.
            Are you suggesting that as much as 50 per cent of the adult population will take up cannabis consumption? If so, what percentage will come to harm from it? The same as we see now, 5-10 percent of consumers, depending on how you define harm, or less?

            Are you suggesting that education, prevention, treatment and harm reduction might not be facilitated by legalization? That, as with the substitution effect, the jury is still out on this question?

            Have you factored in harm reduction? Or is it your careful observation that all else will “likely” remain the same under legalization?

            Which of my assertions seems dogmatic to you?

  11. NorCalNative says

    Mr. Klieman you’re asking the right questions about legalization for the most part. I’m opposed to the idea of involuntary treatment for any reason though.

    What I’m curious about is how much you’ve studied the role of exogenous phytocannabinoids and their part in health and homeostasis. How does the use of cannabis as therapy for a poorly functioning endocannabinoid system affect the percentage of the population that can or might be considered cannabis addicts?

    Surely, a subgroup of so-called “addicts” are self-medicating in a very POSITIVE way that kind of turns the idea of addiction upside down. Adding cannabis helps homeostatis, EVEN the nasty combustible versions.

    I consider myself a cannabis addict because I have NO desire to stop or quit. However, three of the reasons I have no desire to quit is that cannabis allowed me to discontinue the use of pharmaceutical substances with nasty and even fatal side effects. I’ve been able to use cannabis to replace NSAIDS, Elavil (for pain and neuropathy) and EVEN my statins for cholesterol. I’ll be 60-years-old this year, and despite my SSI status of total disability my physician continues calling me his fittest patient every time I see him.

    Mark here’s the root of why I’d attach “addict” to my cannabis use. I’m on a small fixed income from SSI. It’s hard to maintain older automobiles that my income can afford. I was forced to make the decision to “maintain a vehicle” or ride a bicycle so I could afford my $300 to $400 monthly nut for cannabis. Because cannabis offers me such quality of life, I chose to get rid of my car so I could afford to supply my “habit.”

    Now, if I didn’t add in the fact that this decision was made much easier because my driving leg and foot that controls gas and brake pedals gets numb when I drive or sit in cars, what else would that pot-for-car trade-off look like but ADDICTION?

    But, if I actually was an addict, would I have told my physician that I got rid of my car due to “DRUG SEEKING BEHAVIOR?” In your experience is it common for addicts to spell it out like that to their physicians?

    The only perceived negative to my so-called self-identified cannabis “addiction” was phlegm buildup. I recently, and finally. migrated to the “vapor pen” type use as well as the “sweet” versions of tinctures and am now going smoke free.

    I know what you’re thinking: Well maybe I can consider this an adult case that’s an exception to the rule. NOT. I started using cannabis at 15 and if it affected my I.Q. as an adult, I think I can still get by and manage with a I.Q. in the high 120′s.

    I’ve used other substances and sought out treatment for crack cocaine in the early 90′s. I KNOW what addiction feels like.

    So Mark, you’re obviously a very smart guy. When does your Reality-Based Community admit that exogenous cannabinoids play a MASTER CONTROL role in homeostatis? That is, what’s addiction, and what’s VERY INTELLIGENT self-medicating that has the appearance of addiction? The endocannabinod system makes the idea of cannabis addiction a very different question.

    Any idea how large or small this subgroup might be within those who are viewed as addicted to cannabis? Ten percent? Twenty? Zero?

    I consider my self a cannabis addict and yet I’m unable to recognize ANY harm to myself or society that I just didn’t fix by going smoke free. Last point I’d like to make is that cannabis is under-appreciated as a drug that keeps people from abusing harder and more dangerous substances. It is in fact the OPPOSITE of a gateway drug. One of the reasons I say that is when I was attending N.A. meetings for my cocaine addiction, probably 90% of the folks coming to meetings were either high on cannabis at the meetings or using cannabis to help them end their substance abuse problem.

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