The California Marijuana Legalization Initiative Won’t Create the Next Big Tobacco

Today the UCSF Center for Tobacco Control Research and Education released a report entitled A Public Health Analysis of Two Proposed Marijuana Legalization Initiatives for the 2016 California Ballot: Creating the New Tobacco Industry. Coming just a day after the California Medical Association endorsed the Adult Use of Marijuana Act, the new report is much more critical of the AUMA, suggesting many similarities between marijuana and tobacco. I am a fan of the Tobacco Research Center’s work, and I agree with them that marijuana is not harmless, but I disagree with them that this will create the next Big Tobacco just because the ballot initiative doesn’t contain all the policies they would like to see.  I don’t think the ballot initiative process is the place to nail down particular policies. I think rulemaking is going to be an ongoing process, and we shouldn’t get locked in now—especially since we don’t know enough about the future regulated market.

A couple of caveats at the outset. First, I was a member of the Blue Ribbon Commission on Marijuana Policy, serving as Chair of the Public Safety Working Group, and, as such, I was involved in the development of many of the recommended policies that were subsequently adopted by the AUMA. I attended a meeting with the authors of the report, and I disagreed with them then that we had to replicate everything from tobacco regulation (though, I will reiterate, I think some of the lessons are valuable). I think I’m clear-eyed about the limitations of the Commission (and my own knowledge), but take this with however many grains of salt you deem necessary. [UPDATE: In case it’s not clear, I’m speaking on my own behalf, not on behalf of any organization with which I have been or am currently affiliated.]  Second, I’m not a public health expert, just a criminal law professor, so I can’t do anything like a deep dive into the public health studies. (That said, I will say, as an observer, that the studies seem to me to be far more equivocal than what we now know about tobacco.)

My main objections to the Tobacco Center’s report can be divided into two categories: whether the post-legalized marijuana industry is on the way to becoming Big Tobacco, and whether the ballot initiative process is the place to nail down policies. Continue Reading…

Highs and Lows – Cannabis Policy This Week

Washington State – The federal prosecution of a medical marijuana dispensary owner threatens to disturb the precarious balance of legality in Washington. But is that a bad thing? An article on the libertarian Reason Foundation’s blog suggests that Lance Gloor, the entrepreneur in question, was an innocent victim of selective prosecution. Perhaps he is; that’s a matter for the courts to decide. More importantly, his prosecution creates a precedent of sorts for federal regulation of state cannabis markets. This could be a powerful tool for making those markets work, and it should be approached in a thoughtful manner, not a paranoid one. Hopefully federal prosecutors can be trusted to work constructively with local law enforcement to protect public safety in an equitable way. Meanwhile, the City of Seattle is reducing the buffer zones required around cannabis shops, and in the process allowing them to operate a little more like the real commercial enterprises they are meant to be. But detractors urge the city council to “slow down” and consider the backlash wanton deregulation could create. Read more:

New England – Echoing the call to decelerate aspects of legalization, a Colorado police chief urged the Massachusetts legislative delegation sent to study the pot market in his state to do just that, “Slow it down.” But, as the voters of the Commonwealth of Massachusetts are likely legalize cannabis in the upcoming elections, the delegation’s real task was not to set a tempo but to learn how to deal with their new paradigm. “It is not the purpose of this committee to determine whether or not MA should legalize marijuana–but rather, to really prepare ourselves for that possibility,” said State Senator Jason Lewis, chair of MA’s Senate’s subcommittee on marijuana, in a CBS Boston interview. Other legislators, such as Senator John F. Keenan, seemed less hearty, asking dispensary workers, “If I were to buy this, what would I do with it? Do I…roll it?” Keenan’s blanching is understandable. The big worry in MA seems to be the potential corporatization of weed, especially marketing toward children – heading “down the Joe Camel path,” as MA governor Charlie Baker put it. This is not, seemingly, off-putting to former Vermont Attorney General Kimberley Cheney, who has recently endorsed the legalization effort in his state. Read more:

California – Even with the most money and no opposition, the passage of the “Adult Use of Marijuana Act” is not guaranteed, or so opines SF Weekly columnist Chris Roberts in a recent article. “For true believers, AUMA does not go far enough — and it’s viewed with suspicion solely because of its deep-pocketed backers, who the die-hards accused of wanting to take over the industry.” And those “die-hards” are not wrong. In every state considering legalization at this point (Ohio is a notable example), there are people who realize that, for a time at least, marijuana can be an extremely profitable business. Is fear of corporatization enough to make the purists rise up and quash the law? Probably not, especially if a proposed plan goes through to offer small-scale grow operations “terroir” label protections. But for now, supporters of AUMA are finding it prudent to heap on the endorsements. Recently the California NAACP has seen fit to throw their weight behind legalization (despite unnamed concerns), and former U.S. Surgeon General Joycelyn Elders is set to headline the ICBC in February. And still the anti-legalization side continues to be voiceless. Do they even exist anymore? The do in Arizona, where Governor Doug Ducey vows to fight the “common culprit of drug abuse and addiction.” But for now, despite polls that show only a bare majority of support for legalization in California among likely voters, the smart money is on legal pot in 2016.

Meanwhile in Canada officials are also feeling the influence of the Centennial State (CO), and Justin Trudeau, Kathleen Wynne, and former Toronto police chief Bill Blair are all hunky-dory over weed.


And those are the highs and lows.

A Tale of Two Cities? Marijuana, Municipal Difference, and Externalities

For the past several years I’ve been writing about criminal justice externalities at the local level, pulling on the loose thread of the correctional free lunch—the observation that local officials make the decisions that send people to prison but the state pays for prison out of general revenues.  The phrase was coined by Gordon Hawkins and Frank Zimring in the Scale of Imprisonment; Hadar Aviram provides a great introduction to the theory here (the very introduction, in fact, that piqued my interest).  From 2000-2009, counties in California used prison at very different rates, but only 3 percent of the variance can be explained by differences in rates of violent crime.  An ongoing question is how to internalize these externalities—I’ve proposed breaking up the state and unifying the pieces of criminal justice at the county level (Leon Neyfakh’s summary of my argument in Slate is here).   My reasons for picking the county level are, inter alia, that DA’s (and judges) are elected at the county level, jails are county institutions, and the Sixth Amendment says juries should come from the county and district of the crime (though I’ve also made the point that crime does not confine itself to county boundaries).

Two recent articles from Colorado underscore the idea that there are also important municipal/intra-county dimensions to criminal justice externalities.  In Colorado, several large cities/towns have banned recreational marijuana sales (most notably Colorado Springs).  This then means that little towns just outside the city limits can make money from sales (including, notably, from state sales tax rebates).  In one instance, a marijuana-selling town also contracts law enforcement out to the county sheriff–meaning that all costs are externalized (assuming crime goes hand in hand with marijuana sales, where the evidence is mixed) but all the benefits are internalized.  This strikes me as ripe for a race to the bottom where every jurisdiction ends up authorizing sales because it will end up paying for the costs anyway without reaping any of the benefits.

At the same time, there is also evidence from Colorado about action within the municipal level.  Denver is, apparently, siting marijuana businesses in rich white neighbor–oh, I mean poor neighborhoods of color (sorry, just wanted to break up the predictability a bit).  So there, the costs are apportioned intra-city but the benefits (in the form of sales tax rebates) accrue at the city level.  It’s the opposite internality/externality problem.

I don’t know that I have a one-size-fits-all prescription about the optimum state/county relationship in criminal justice.  (I’m still waiting for the criminal justice equivalent of a theory of optimum currency areas.)  In case you want to read more from me, you can check out my answer about about why we have state prisons—and how they used to be a revenue center, not a cost center–or about how the question about the proper relationship between county and state criminal justice in California (so important after realignment) has actually been with us since statehood.  If  you want to read someone else, a great place to start is  Lisa Miller’s excellent work the Perils of Federalism.  In general, though, I think discussions of criminal law in the legal academy tend to focus too much on the federal system and not enough on the state and local—even though there are so many fascinating issues to be explored there.

Call Western Union!

Yesterday the Massachusetts Legislature took a long-overdue vote, repealing a 27-year-old law that mandated drivers’ license suspension for drug offenses even when there was no connection to operation of a car. That era was full of legislation and policies motivated by the notion that we must “send a message” about drugs. If my memory is accurate (and give me a break, I was finishing law school and wondering how I was going to pass the bar when my friends and I could not sit through more than about an hour of the preparation classes before making a jailbreak and sprinting to Chinatown to drown our frustration in cheap food and alcohol) the old guard in government was up in arms about disdain for the drug laws, but they had to move away from using the criminal justice system to deal with possession of small amounts. Even the most conservative politicians had kids whose futures were jeopardized by a drug possession charge. Continue Reading…

“We don’t grow tomatoes in warehouses”

Dan Sutton, one of Canada’s legal medical-cannabis producers, proposes using sunlight instead of Gro-Lux. His  TEDx talk emphasizes the environmental benefits, but the cost savings are likely to be the big driver in forcing the industry to adopt new growing techniques.


Just how “harmless” is cannabis, after all?

Jon Caulkins has a first-rate essay in National Affairs on what the numbers actually say about the dangerousness of cannabis.

The real trouble is not that marijuana is more or less dangerous than alcohol; the problem is that they are altogether different, and the comparison is simply unhelpful in informing the debate over marijuana policy. The country is not considering whether to switch the legal statuses of alcohol and marijuana. Unfortunately, our society does not get to choose either to have alcohol’s dangers or to have marijuana’s dangers. Rather, it gets to have alcohol’s dangers — modulated perhaps by higher or lower drinking ages and higher or lower taxes — and also marijuana’s dangers — modulated by how legalization or prohibition affect prices, product variety, marketing, and usage.

Instead of comparing the harms of marijuana when it is prohibited to the harms of alcohol when it is legal, an intellectually honest marijuana-policy analysis ought to compare all possible harms under marijuana prohibition to all possible harms under legalization. And that analysis ought also to worry about indirect effects on abuse of other illicit drugs, alcohol, and tobacco — outcomes for which the current evidence is scant, divided, and discouraging, respectively.

A single candle

Keith pointed out the continuing bad news on the opiate front. At this point I think we’re all clear on what happened; doctors were persuaded that they were cruelly failing to treat pain with drugs that the pharmaceutical industry assured us were safe, many became addicted to their own prescriptions and many others were introduced to opiate euphoria via diverted prescription medication. Heroin prices dropped and to someone already addicted to pills, crossing that bridge to heroin is a foregone conclusion. So now we have to approach it like an epidemic, which means treating the existing addicts and extinguishing new cases.  It’s complicated, a “hot mess” as the kids say. But there is one thing that each and every one of us can do, right now. If you don’t have any dangerous prescription medication in your house, good for you, but chances are you’ll need a few Vicodin at some point. So get one of these. If you can use a screwdriver, you’ll be able to install it yourself. A staggering number of heroin addicts got started with prescription opiates swiped from someone’s medicine cabinet. Smart doctors now tell patients to treat their addictive medication like cash; it should never be kept in a bathroom medicine cabinet since people go there alone and lock the door. Legislators and doctors will have to do most of the heavy lifting to solve the greater problem, but this is one thing we should all do, if for no other reason than to remind ourselves that an innocuous-looking orange bottle should be afforded the same precautions we would take with a toxic herbicide.

Debating Marijuana Legalization Frameworks

Alejandro Hope, whom I rely on for consistently intelligent and nuanced drug and crime policy analysis, has conducted a series of interviews about marijuana legalization at El Daily (An English language site focused on Mexico). So this is a great chance to wonk out with four perspectives on legalization:

Keith Humphreys, on not making it a cash cow

Beau Kilmer, on the many options for regulation

Mark Kleiman, on temperate marijuana legalization

and Bryce Pardo on the balancing act involved

The Gran Torino problem

What’s the matter with middle-aged working class white Americans?

06114132_Clint Eastwood’s Gran Torino hasn’t yet made it into Keith and Johann’s film selections, but no doubt will. It’s a witty and moving, if formulaic, exploration of the psyche of the American white working class, represented by Eastwood’s character Walt Kowalski, a retired car worker in industrial Michigan.

The film has a happy ending. Not so real life. The health of middle-aged white American men with no college education has been deteriorating to a surprising and shocking extent. RBC readers deserve for the weekend a comment thread on this now famous chart:


Continue Reading…