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Bureaucratic politics 101: the U.S. adjusts its position on the drug treaties

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Historically, the United States was the chief architect of the prohibition-oriented international drug control regime, and among the most “hawkish” of the signatories (along with Sweden, France, Russia, Japan, and Singapore, and much of the Arab world). The U.S. did a bunch of finger-wagging at the Dutch for their relatively liberal policies. And the Bureau of International Narcotics and Law Enforcement in the State Department (“INL” in Alphabet-speak, informally “Drugs and Thugs”) has long been one of the more hawkish elements in the U.S. drug-policy debate.

The treaties, on their face, require the criminalization of not only drug dealing but drug use. One of the arguments made against the tax-and-regulation approaches adopted by initiative in Colorado and Washington State was that their adoption would put the country out of compliance with its treaty obligations. There are legal loopholes: the treaties acknowledge that their obligations apply to each signatory only insofar as consistent with its domestic institutional arrangements. Since the U.S. federal government, the party bound by the treaties, lacks the constitutional power to require criminalization at the state level, it’s not clear that the actions by Colorado and Washington State voters can be said to have been illegal under international law.

Uruguay has gone further, legalizing at the national level. The Uruguayan government argues that even that is allowed by the treaties, because the treaties recite the reduction of illegal drug trafficking and the protection of public health among their stated goals, and the Uruguayan law is designed to accomplish those goals. Whatever the merits of that argument legally – personally, I don’t think it passes the giggle test, though as a policy matter I’m glad Uruguay is making the experiment and hope it succeeds – it is one that the United States could once have been counted on to scorn.

And yet, when the U.N. Commission on Narcotic drugs met in Vienna last month, and some member countries got up to criticize the Uruguayan move (which the International Narcotics Control Board, the referee set up by the treaties, promptly denounced) the U.S. had no comment on that issue.

In part that reflects changing U.S. public opinion about cannabis, and the more liberal stance of the Obama Administration compared to its predecessors. But in part it reflects the fact that INCB also blasted Colorado and Washington State, putting INL in the position of having to defend the permissibility under international law of those regimes and of the accommodating stance toward them adopted by the Justice Department. So the voters in those two states in effect forced a change in our national stance in international fora.

Here’s Ambassador William Brownfield, the Assistant Secretary of State in charge of INL, explaining the new stance: the treaties, we are now told, are “living documents,” allowing “flexibility” in how different nations choose to meet their obligations, and we should seek a new consensus about what that means.

Obvious, once it’s happened. (It might not have happened in, say, the Romney Administration.) But, as far as I know, not predicted in advance by anyone, least of all by me.

Footnote It would be easier to take more seriously the self-appointed “Global Commission on Drug Policy” if spokespeople such as Michel Kazaktchine didn’t insist on making nonsensical claims, such as that minor drug offenses account for half of U.S. incarceration (the actual figure is more like 20% for all drug offenses) and that prohibition has failed to reduce consumption (compared to what?) and that alcohol and tobacco control via taxation and regulation have been more successful (by what measure).

How not to make a hash of marijuana legalization

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The cover package in the current issue of Washington Monthly includes articles on cannabis legalization by Jonathan Caulkins, Jonathan Rauch, and me, under the heading “Saving Marijuana Legalization.” Mine has the wonderful title (which I think Paul Glastris gets credit for) “How Not to Make a Hash of Marijuana Legalization.”

All three pieces consider how to legalize cannabis rather than whether to legalize it. Caulkins and I both distrust the trend toward a commercial system on the alcohol model, and I’m also unhappy both about a pure states’-rights approach and about legislation by initiative. I also float the idea of user-set monthly purchase quotas, a “nudge” strategy that I claim might do some good and couldn’t hurt.

Michael Hilzik gives the whole thing a very nice write-up on the LA Times business page.

Footnote Depressingly, none of the LA Times commmenters makes a point that is either original or cogent. It’s like hearing from the Romneybots in the fall of 2012.

Cannabis law and policy

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Bloomberg just posted my essay about  the federal response to cannabis legalization in Colorado and Washington State and about the “rescheduling” issue, both of which have been the subject of rather confused debate.

Short version: No, the law doesn’t require the feds to shut down the Colorado and Washington State initiatives, and “rescheduling” cannabis would be a mostly pointless exercise; it’s much more important to remove bureaucratic barriers to medical research.

That essay doesn’t include one item on which the discussion has been especially confused: the claim that the President, by himself, has the power to reschedule. In fact, the Controlled Substances Act gives that power to the Attorney General, and requires that the AG get medical advice from the Secretary of HHS and take that advice as authoritative.  The AG has delegated his responsibility to the DEA Administrator, and the HHS secretary has delegated hers to the Assitant Secretary for Health.

Those powers are not arbitrary:  the law says that rescheduling requires an “accepted medical use,” and the courts have held that to mean the satisfaction of each of five criteria:

                        a.    the drug’s chemistry is known and reproducible;

                        b.    there are adequate safety studies;

                        c.    there are adequate and well-controlled studies proving efficacy;

                        d.    the drug is accepted by qualified experts; and

                        e.    the scientific evidence is widely available.

[Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1135 (D.C. Cir. 1994)]

Arguably, the AG and HHS Secretary could decide to change that legal standard; the courts, having deferred to administrative discretion in the earlier case, might do so again. But it’s not as simple as someone saying, “Gee, I’d like to reschedule cannabis this morning.” And though the President appoints the officials in question and can fire them, the power under the law does not belong to the President.

Moreover, the law explicitly requires that any substance covered by the international drug conventions – which marijuana is – be controlled, regardless of any other factors. Thus the Executive Branch as a whole lacks the power to remove cannabis from the CSA entirely.

Since Jacob Sullum and his friends get their feelings terribly hurt when I point out that he’s talking through his hat, and since I purely hate hurting people’s feelings, I won’t mention him here. That will save him the effort of once again misrepresenting not only the law but what I said about the law, and about his misunderstanding of it.   But the next time he decides to accuse the President – who in real life was a law professor – of not having read the law, perhaps Sullum will consider … reading the law.

Footnote Eighteen members of Congress seem to share this misundestanding, which Americans for Safe Access – the lobby for the medical-marijuana industry – is doing its best to promote.

 

 

 

Futile pursuits: chasing rainbows and rescheduling cannabis

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The discussion of “rescheduling” marijuana is confused because most of the people engaged in it don’t know how the law works.

Jacob Sullum, always willing to let his ignorance be the measure of other people’s knowledge, utterly unwilling to let mere facts get in the way of libertarian ideology, and eager to please his paymasters by slagging a Democratic President, illustrates my point in his response to the latest CNN Obama interview.

Rather than reviewing the bidding about who said what, let me simply lay out the actual state of affairs.

The Controlled Substances Act is a law. It cannot be changed by administrative fiat. That law provides that any substance with abuse potential be put into one of five schedules. Schedule I is for drugs without accepted medical use. Schedules II-V are for drugs with accepted medical use but with abuse potential, with less abusable drugs placed in the lower schedules. Alcohol and tobacco, both highly abusable drugs with no accepted medical use, would be Schedule I, but they are explicitly exempted in the text of the law:

The term [controlled substance] does not include distilled spirits, wine, malt beverages, or tobacco.

“Marihuana,” by contrast, is placed by name in Schedule I. That placement tracks its treatment in the international conventions governing drug policy.

Yes, authority to reschedule cannabis lies with the Administration. If the DEA Administrator decided that the drug had “accepted medical use,” that would move it to Schedule II, making cannabis legally available by prescription. Selling it without a prescription would remain the same crime it is today. (Recall that cocaine and methamphetamine are Schedule II drugs.)

But prescriptions can only be written for FDA-approved drugs. And the FDA can’t approve “marijuana,” because “marijuana” isn’t something that can be put through clinical trials. The New Drug Application would have to be for a specific cannabis preparation, to be given in a specific dosage regimen via a specific route of administration for the treatment of a specific condition. That “new drug” could be a single molecule a combination, an herbal preparation, or an extract. In any case, it would have to have a known and reproducible chemical composition and be produced using “Good Manufacturing Practice.” Producing cannabis without FDA approval would still be the illegal manufacture of a Schedule II controlled substance.

So administrative rescheduling would not make “medical marijuana,” or any other kind, legal at the federal level. Its practical effect would be identically zero.

What’s actually needed in the way of administrative action is to get the DEA and the Public Health Service out of the way of medical research, by breaking the University of Mississippi monopoly on research cannabis and eliminating the requirement that researchers using cannabis (but no other controlled drug) have the material “granted” to them by a federal agency rather than just going out and buying it. The Obama Administration can and should be criticized for not having taken those steps.

But “rescheduling” is a red herring dragged across the trail of policy reform.

Update Tom Angell’s feelings are hurt because I was mean to poor widdle Jacob Sullum. And he insists that I mention that, if marijuana were downscheduled to Schedule III rather than Schedule II (a scheduling decision that wouldn’t make much sense, given that something more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time), marijuana sellers would be able to deduct their business expenses in calculating their federal income taxes. Since that trivial impact on the cannabis problem isn’t the same as “identically zero impact,” Angell demands that I retract.

OK. Rescheduling to the appropriate schedule would have identically zero impact, but excessive downscheduling could somewhat increase the after-tax incomes of marijuana retailers and perhaps lead to slightly lower retail cannabis prices in state-legal stores.

Is cannabis addictive?

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Ask this woman.

My dad will never stop smoking pot. Sometimes I wonder about the man he might have been, and the lives we all might have had, if he’d never started.

As I keep saying: the evils of prohibition do not disprove the evils of substance abuse. In the case of cannabis, it’s probable that we could get rid of the former without greatly increasing the latter. But it’s not automatic. And denying that cannabis abuse is a real problem doesn’t help.

Note how the mythology of “addiction” cultivated by the “drug-prevention” effort and the drug-treatment industry interferes with understanding. Most drug abuse is very unlike the horrible picture painted in the linked story: it’s relatively transient. And most people who use “addictive” drugs don’t get addicted to them; substance abuse happens to only a minority of users, and only a minority of abusers actually have the “chronic, relapsing disorder” touted as typical. Bad habits around drug-taking are like other bad habits: they lie along a spectrum, and not everyone who uses a drug that turns out to be habit-forming in others encounters a problem.

But if you have the problem, or your brother, or your son, or your mother, it’s a serious problem. And the risk can’t just be wished away. If you support making cannabis available from profit-seeking commercial vendors, heavily marketed, and cheap – which is the path Washington and Colorado are walking down right now – then the predictable result of your preferred policy will be more people with very bad cannabis habits. And there could be fewer such people if cannabis were kept expensive, if marketing were kept to a minimum, and if users were offered modest helps to their self-command, such as user-set periodic purchase quotas, or if we keep the commercial motive out of the business altogether with state stores or by limiting vendor licenses to consumer-owned co-ops and not-for-profit businesses with boards concerned with limiting drug abuse rather than maximizing revenue.

Of course you’re free to oppose all of that. But if you do so, you ought at least to acknowlege the inevitable human cost.

h/t Andrew Sullivan

Update Comments closed due to persistent trolling, using multipe IPAs. I may start to follow Keith’s lead. Alterantively, we could go to some sort of registered-commenter system. Sorry, folks, but I suppose if you have a picnic you have to expect some cockroaches.

Wish-I’d-Said-That Dep’t

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John McDuling in Quartz: “Investing in marijuana stocks is a lot more dangerous than smoking marijuana.”

There is a ton of money to be made in the cannabis business: by fleecing investors.

There’s also a ton of money to be lost: by being one of those investors.

Legal cannabis will be a commodity, and a cheap one at that. Maybe somebody has a clever branding strategy to make money anyway, but what are the odds you’re going to pick that lucky company to invest in as opposed to the 99 others that are going to go broke when pre-tax retail prices hit $3/gm. for sinse, with concentrates trading at a discount on a per-milligram-THC basis?

This is one case where the old rule applies in spades. The sure-fire way to double your money is to fold it over and put it back in your pocket.

Beau Kilmer on restricting cannabis marketing

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Beau Kilmer has a very sharp short op-ed in the NYT arguing for the use of federal muscle to limit aggressive cannabis marketing and child-friendly packaging in Colorado and Washington. Going after sellers of cannabis candy seems like clearly good idea, given the risk of accidental consumption by little children. Would it really be too great an imposition to insist that cannabis edibles and potables be unsweetened and not look like confections? Since the Supreme Court’s “commercial free speech” doctrine is based on making truthful claims about lawful products, and since cannabis remains an unlawful product at the federal level, I don’t see the basis for claiming that the legalizing states and the federal government have to permit the same sort of unscrupulous advertising for cannabis as they do for alcohol.

Cannabis legalization and the empirical-minded median voter

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No big surprises from the cannabis questions in the latest CNN-ORC poll. It looks as if the Gallup numbers from earlier in the year (58 for legalization, 39 against) were a bit of an outlier; the gap seems to be nearer 10 points than 20, which makes a difference. But the CNN-ORC findings, along with those from the Pew survey, confirm the decisive shift in public opinion. Support for legalization now has a clear majority. Most interesting finding, to my eyes: the new poll asked the question two ways:

“Do you think the use of marijuana should be made legal, or not?”

“Do you think the sale of marijuana should be made legal, or not?”

The answers were virtually identical: 55/44 for legal use, 54/45 for legal sale. So for those of us who have wondering whether the “use” question was inappropriately lumping supporters of decriminalization with supporters of full commercial availability, the answer is “No.” A majority really favors full legalization. On the other hand, when the question gets specific, the majority disappears:

“As you may know, Colorado now allows anyone over the age of 21 to purchase small quantities of marijuana for their own use from businesses that have been licensed by the state government to sell marijuana. Do you think this is a good idea or a bad idea, or do you want to see what happens in Colorado and other states that legalize marijuana before you decide how you feel about this matter?”   

“Good idea” leads “bad idea” by a small plurality, 33/27, but the largest group (37%) wants to wait and see.  Yes, of course phrasing the question that way encouraged the wait-and-see answer, but it’s encouraging that so many voters are empirically-minded on this issue rather than fixed in one of two fact-proof ideological camps.

Even among those who oppose legal pot, most prefer to have users pay fines rather than going to jail. And support for medical marijuana is overwhelming: 88/10.

All of this suggests that those who oppose legalization have chosen a grossly inappropriate strategy, if their objective is winning as oppposed to mere fundraising and personal advancement. Moral denunciation, opposition to medical research (with actual cannabis, not hypothetical individual molecules), and support for user penalties are all losing moves. Instead of simply posing  their own prejudices and certainties against those of the legalizers, they ought to offer cautious experimentalism. The median voter might buy “Wait and see,” if it appeared sincere. But she’s way past “No, nay, never!”

Footnote Logically, of course, “Wait and see” isn’t a clear pragmatic implication of uncertainty. Waiting also has costs. The right conclusion is “Make cautious changes that are easy to modify in the light of new evidence, and watch for that evidence.” The big problem for the “No” side is that if there are going to be large bad consequences from legalization, they will likely develop over years, not months.

Cannabis retail licenses: lotteries v. auctions

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Washington State has more applicants for pot-shop licenses than it has licenses to hand out. So the plan is to cull the ineligible applications and then have a lottery.

A lottery is “fair” in some primitive sense – it avoids charges of favoritism – but it has no other virtue. It simply creates windfall winners and losers. Why not auction the licenses (on, say, a five-years-at-a-time basis) and capture the windfall for the state?

The next hard problem facing  the Liquor Board will be how to allocate the limited square footage of grow space. Again, I’d opt for an auction.

Footnote Bob Young quotes me accurately, but slightly out of context. When I said “What if we gave a pot legalization and nobody came?” I was worried about whether the retail stores would have anything to sell in the first year at prices competitive with the  illicit market and with the medical outlets. The decision to allow outdoor growing will, I think, make that problem go away quickly, and hasten the problem of prices low enough to encourage drug abuse, use by minors, and diversion from legal retail sale for out-of-state distribution.

Second footnote No, I’m not currently an active adviser to the Washington State process. BOTEC has completed all its assigned tasks.

How to legalize cannabis

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With a little help (ok, actually quite a lot of help) from my friends Lowry Heussler, Jon Caulkins, Keith Humphreys, and Beau Kilmer, and my sister Kelly, I produced an op-ed for the Financial Times on the design of a post-prohibition cannabis control regime.

Here’s the punchline:

A large increase in problem use might be a price worth paying to rid ourselves of the many ills attendant on prohibition. But it is not a price we have to pay. Smarter policies could lead to better outcomes.

Many thanks to Kesewa Hennessy, Deputy Comment Editor at the FT, for a superb job of copy-editing.

One key point, omitted to save space: the system of user-set quotas proposed for cannabis could also apply – should, in my view, be applied – to alcohol and gambling.