More on cannabis:
    autonomy, medical use, and the supremacy clause

Matthew Yglesias doubts that keeping someone from damaging himself through coercive means counts as a benefit. Well, turn it around: does inducing/allowing someone to damage himself by setting up a dumb choice for him to make count as a harm? If what Matthew proposes is a counting rule, I don’t see its justification. The principle of autonomy leads me to think that restricting people’s choice ought to be counted as a cost, but not that its benefits in the form of avoided self-damage should be ignored on principle.

Imagine that you were running an oceanside resort, with a beautiful walk along the cliffs that was dangerous in high winds. How many people would have to fall to their deaths, despite your sign saying “Don’t walk here when it’s windy,” before you decided that the path had better be closed?

Whether we’re comparing the grow-your-own policy against full legalization or current prohibition against grow-your own, can it really be right to ignore as a matter of principle the impact of looser controls on the rate of drug abuse and dependency? And as a practical matter, how serious a restriction would it be on autonomy to say that people who wanted to use cannabis had to either grow their own or find a generous friend with a green thumb?

Matthew also proposes that banning cannabis for everyone makes it more available to kids than allowing it for adults and forbidding it to kids only, which is his preferred alternative. I can’t see how that works. Making it legal for adults doesn’t interfere, in any obvious way, with clandestine growing for the juvenile market, and cannabis is so much more compact than alcohol (a pound of beer is a 16-ounce can, while a pound of pot is a thousand doses) that the leakage around a cannabis age barrier would be even more copious than the leakage around the alcohol age barrier. Moreover, age limitations make the use of the substance involved a badge of adulthood, and encourage kids to learn the mechanics of lawbreaking. [If I had my way, the age restriction on alcohol would go; it does some good in preventing drunk driving, but the notion that having a false ID is a normal thing for a college freshman to do makes me extremely uncomfortable.]

Matthew’s original post was a reflection on a New York Times editorial complaining about the conviction of a California medical-marijuana grower in a Federal court in which the judge barred any testimony that would have told the jury why he was growing the pot, or that he was doing so as an agent of the City of Oakland. The jurors, having convicted him of a crime carrying a five-year mandatory sentence, were extremely upset when they discovered the context of which the trial process had carefully kept them ignorant. Ampersand agrees with the Times, but wants to know what I think about it.

First reaction: yawn. Medical marijuana is not an important issue medically (Dutch doctors, whose patients have easy access to the drug, don’t use it much) and not an important issue for drug policy. It was clever of the drug-legalization movement to make medical marijuana the battleground, and foolish of the drug warriors to accept battle on ground so favorable to their foes. [I’m not saying that any individual drug warrior or drug-war group is foolish; any one of them who said “This is the wrong battle to fight” would have been excommunicated. That’s the problem with running a movement based on thought police.] But as a practical matter the whole business is barely worth talking about. That hasn’t kept me from doing so, of course.

Substantively, my view is that the only way to make marijuana available as a medicine (other than legalizing it outright, which isn’t going to happen anytime soon) is to put it through the FDA process. If a tenth of the money and energy that has gone into litigation and referenda had gone instead into medical research, cannabis would now be a Schedule II drug. But the one point the warriors and the legalizers agree on is that this is a topic to be argued about, not one to be studied scientifically. (That agreement is at a pragmatic, rather than a rhetorical level. The drug warriors insist that cannabis cannot be approved as a medicine without more research, and then do their best to make research impossible; the medical pot crowd — with the exception of Rick Doblin — pretends that adequate research has already been done and therefore makes no effort to get any going.)

Legally, Judge Breyer did precisely the right thing. The Supreme Court ruled (overturning one of Breyer’s decisions) that, as a matter of law, cannabis has no medical use, and that therefore the issue of its medical value could not be raised in court. Under the Supremacy Clause, a California initiative does not trump a federal prohibition. Growing cannabis is against federal law, and growing it under contract to the City of Oakland is against federal law to precisely the same extent as growing it to supply an army of pushers lurking outside elementary schools.

Moreover, even California Proposition 215 doesn’t permit someone to grow a thousand marijuana plants to be distributed to patients though “buyers’ clubs.” Prop. 215 provides merely that a patient in need of cannabis, or that patient’s “primary caregiver,” may grow or possess cannabis. It’s clear from the text that a “primary caregiver” is understood to be a close relative or friend who takes responsibility for an individual patient. “For the purposes of this section, ”primary caregiver” means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.” The idea that a buyer’s club, which of course is not an “individual” at all amd which does not assume general responsibility for its clients, can be the “primary caregiver” for hundreds of people at a time is utterly fantastic.

Had the jury known all the facts, it would have nullified the law by acquitting a person clearly guilty under its terms. I’m not going to get into the argument about whether that’s a good idea, but under current law the defense isn’t allowed to argue that the jury should do so, or present evidence relevant to the nullification but not to legal culpability. The five-year mandatory for large-scale pot growing is unconscionable, and the Justice Department decision to frame the charge in a way that triggered the mandatory is something for everyone who contributed to it to be ashamed of. But the legality of what Ed Rosenthal was convicted of doing isn’t really an open question; is there some part of the phrase “supreme law of the land” that his lawyers would like explained more carefully? In any case, ragging on Judge Breyer is pointless: he was just doing his job.

Cannabis policy and the “grow your own” option

Matthew Yglesias makes a true statement but draws what I think are two false inferences from it:

It’s true that “the new public service ads the government has out to denounce the weed all make reference to things (the risk of jail time, the associated violence, etc.) that are caused by criminalization rather than marijuana use itself.” But that doesn’t prove that “making [marijuana] illegal is helping no one and harming many” and that, therefore, “the campaign against marijuana makes no sense at all in any of its manifestations.”

Most of the arguments made in favor of keeping cannabis illegal are no better than the ones Matthew cites. I take on one of them here. And it’s true that much of the damage done by cannabis results from its illegality.

But it’s not true that it’s harmless, or that the current laws don’t reduce its use.

Cannabis is substantially more habit-forming than most non-drug-warriors believe; of all those people who have smoked it at least five times, roughly a tenth go on to some extended period of heavy daily use. As an academic acquaintance (whose libertarianism makes him a supporter of legalization despite his personal experience) put it, “I’m just like all those politicians. I only used marijuana a single time, and I deeply, deeply regret it. The single time was from the spring of 1963 to the fall of 1969.”

Being a pothead isn’t nearly as bad for you, or for the people around you, as being a drunk. It doesn’t cause violence, it doesn’t rot your liver, and, for most people, the period of continual intoxication passes after several months and doesn’t return. But some people — everyone my age knows a few — get caught in very-long-term patterns of dependency, and even the shorter period is nothing to write home about, putting aside the risk of being busted. If it happens to coincide with, say, the tenth grade — and cannabis initiation happens much earlier now than it did twenty years ago — some schoolwork, and some emotional growing-up, are likely to be missed, and not all of what’s missed is going to be made up later.

The claim that the laws don’t reduce use — which Matthew doesn’t make explicitly, but which would have to be true for it to be the case that prohibition benefits no one — is thoroughly implausible, though the extent of the increase in use that would result from legalization would depend on the details (tax level, distribution system, marketing restrictions, age restrictions, potency and quantity restrictions) of the legal regime that replaced prohibition. Even as an illegal drug, cannabis is cheap on a per-hour-intoxicated basis (probably something under a dollar for a user who hasn’t built up a tolerance), which would limit the impact of a price decrease on consumption levels. Still, the stuff that now sells for $150-$300 an ounce would presumably be more popular if it cost a tenth of that or less, which would be the (pretax) legal price. There’s no reason to think that cannabis demand is completely price-inelastic. Moreover, legality would make the stuff easier to come by and reduce the formal and informal social consequences of smoking. Even the poorly-enforced regime of alcohol prohibition reduced the amount of alcohol consumed by something between half and two-thirds.

If marijuana proved to be a substitute for, rather than a complement to, alcohol (the studies conflict) then making it legal would probably reduce crime and accidents. Legalizing it would also reduce the population behind bars by about 60,000, or 3%. Legal cannabis would eliminate a $10 billion per year illicit market, which even if its contribution to terrorism is negligible is still a noticeable social headache, and get several million people whose only current criminal activity is using pot back on the right side of the law: not a negligible benefit, in my estimation.

But if that meant that the current population of 2 to 3 million wake-and-bake potheads tripled, I’m not sure that would be a good trade. And legalization on anything like the alcohol model could easily lead to such an increase. Just think what the people who have convinced so many American kids to smoke tobacco cigarettes and drink beer could do if given free rein to market what in some ways is a much more attractive product. A legal cannabis industry, like most industries, would be heavily dependent on its steady, high-volume customers: the frequent flyers. (In the case of alcohol, 50% of the total industry volume goes to people who average four drinks a day, year-round, or more.) That means that a legal pot industry would be in the business of creating and sustaining potheads. The free market is a wonderful thing, but you don’t want it working against you in a situation like that.

If I got to make the laws, I think I’d make selling cannabis, or trading it for anything of value, a crime, but legalize growing your own, using it, or giving it away. That wouldn’t eliminate sales activity entirely, but it would eliminate mass-marketing. Yes, I can think of a bunch of objections to a “Grow your own” policy, but it may still be the least bad of our options.

[More here.

Turnover at DEA

Asa Hutchinson will be leaving his post as Administrator of the Drug Enforcement Administration to take a third-level job with the new Homeland Defense Agency. Hard to figure what this means.

I met Hutchinson last year. Good-looking, smooth, articulate, friendly, inquisitive, and ambitious. An excellent explainer — potentially in the Clinton class — though without Clinton’s impulse to actually understand what he was taking about. His knowledge of drug policy was strictly at the campaign-speech level, but I watched him utterly captivate a group of University of California students who were mostly about as far as you could get from him on the issues. No resemblance at all to the image the phrase “graduate of Bob Jones University” calls to mind in a bicoastal elitist like me. Watch that space: he could be President someday, especially since his brother’s defeat means that he has a clean shot at a Senate seat six years from now.

The DEA job was Hutchinson’s reward for his work as one of the “managers” of the Clinton impeachment; he gave up a safe House seat to take it. As DEA Administrator, he’s done nothing in particular, but that’s about par for the course. He’s gotten some ink, though mostly on issues such as medical marijuana and assisted suicide, which may not be political winners. Why the move?

One possibility is that Hutchinson has decided that the drug war in general isn’t a career-builder, or that a year and change fighting it has punched that ticket and it’s time to get his terrorism ticket punched.

Then, too, there’s a buzz that Mitch Daniels is about to take the budget axe to the drug-fighting effort. Maybe Hutchinson decided that presiding over a cutback wouldn’t be any fun.

The other possibility is that Hutchinson is being moved aside for someone who really wants the job. Rudi Giuiliani, maybe? If not — if Bush puts someone low-profile at DEA — that will be a strong signal that he’s de-emphasizing the drug issue. (The only news story that even bothered to speculate mentioned the possibility of promoting the career No. 2 guy, which would be a first; DEA has always gotten its bosses from outside.) The Walters appointment already hinted at such a de-emphasis.

While I naturally have lots of activist ideas about drug policy — that’s what I do for a living, after all — I agree with my friend Peter Reuter (who spoke gratefully about the 2000 Presidential race as the first “drug-free campaign” since 1976) that in general the issue could benefit from a good leaving-alone by elected officials and candidates. Since they’re not allowed to say anything true, it’s probably better for them to say nothing.