No, Congress shouldn’t have meddled in DC home rule by blocking the city from legalizing cannabis on the alcohol model. But the result is to leave in place the “Grow and Give” system the Washington voters approved. On its merits, that system deserves a trial, and we should watch the results closely
By and large, I’m not a fan of the work of the (self-appointed) Global Commission on Drug Policy. The Commission’s latest report draws strong conclusions:
Ultimately the most effective way to reduce the extensive harms of the global drug prohibition regime and advance the goals of public health and safety is to get drugs under control through responsible legal regulation.
Unfortunately, those strong conclusions aren’t backed with strong evidence or strong argument. Calling your drug laws “regulations” or “taxes” rather than “prohibitions” doesn’t make them any easier to enforce. The claim that it’s possible to “get drugs under control through responsible legal regulation” has, for now, to be filed under “Interesting, If True.” Experiments with legal supply of “cannabis, coca leaf, and certain novel psychoactive substances” are a good idea, but of course most of the action in the “war on drugs” is in cocaine, heroin and methamphetamine; the drugs we would most like to legalize in terms of reducing the costs of prohibition would be among the hardest to legalize successfully in terms of public health. (We always have the bad example of alcohol – which causes more violence, more health damage, and more addiction than all the illicit drugs combined – staring down at us.)
That said, the frustration with current drug policies that motivates the Global Commission is entirely justified. Changing the goals and means of the current international drug control regime in the direction of less violence and less incarceration is harder and more complex than denouncing the drug war in abstract terms, and less dramatic than legalization, but it’s necessary and important work, and someone who reads the Commission’s reports but doubts the existence of a regulatory utopia might be motivated to engage in that work.
Naturally, the international drug control empire is going to fight back. Yuri Fedotov, one of its Grand Pooh-Bahs as Director of the UN Office on Drugs and Crime (serving, one might note, as the representative of a government with an especially stupid, vicious, and unsuccessful set of drug policies), says of the Commission report that “It’s very hard to reconcile these recommendations with the major provisions of drug-control conventions.” That, of course, is true.
But what Fedotov doesn’t say, and which is also true, is that it’s very hard to reconcile the premises of the drug-control conventions with observable reality. The Single Convention was written in 1961, before anyone knew about neurotransmitters and receptors. Why should we allow the outdated concepts embodied in that treaty and its successors – treating drugs with abuse potential as evil rather than risky, and assuming that the answer to illicit markets is always more and more law enforcement - to continue to dominate our thinking?
It’s too bad that many of the folks who are willing to say that the existing international drug control regime is based on fantasy insist on pushing the equal and opposite fantasy that there’s a magic wand called “regulation” that we could wave at the problem to bring it under control. But the first step in fixing something is noticing that it’s broken and the Global Commission has at least taken that first step. UNODC and its sister agency INCB, and their allies around the world, are still – if you’ll pardon the use of a technical term – in denial.
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 players in internal drug-policy debates.
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).
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.
Everyone “knows” that two glasses of red wine a day are good for your health. But, as Will Rogers said, it’s not what you don’t know that hurts you: it’s what you know that ain’t so. A paper by Hans Olav Fekjær and commentaries by Jurgen Rehm and Sven Andréasson, all in the latest issue of Addiction, review the evidence.
Yes, moderate drinkers have better health, on many dimensions, than non-drinkers and heavy drinkers. That’s the problem: too many dimensions, with too little biological mechanism. The logical thought is that people who drink in moderation probably have, on average, better health habits in other respects than those who don’t drink at all, since by definition they’ve avoided taking their alcohol use to excess while the abstainers either haven’t run that risk or have found that they can’t drink just a little. It’s also the case that, in Western cultures, drinking is normal while non-drinking is somewhat deviant. The fact that in India, where drinking isn’t a social norm, drinking isn’t associated with better cardiovascular health seems to me to seriously weaken the case for a causal connection in other societies.
Why the “Moderate drinking is good for what ails ya” theory has found such ready acceptance, while a comparable finding about moderate cannabis use and academic performance was ignored, is left as an exercise for the reader.
The Journal of Drug Policy Analysis has just published a new paper (behind a paywall) in which I offer two alternatives to the options currently in public discussion as to how the federal government can deal with state-level cannabis legalization.
This fall, Washington and Colorado intend to start licensing businesses to produce and sell cannabis under voter-passed initiatives, even though the stuff remains illegal under federal law. The federal government has not yet said what it plans to do about it, and its three obvious options – acquiescing, cracking down, and muddling through – all have fairly serious drawbacks.
A number of what Keith calls Formerly Important Persons have demanded that the feds crush the state-legal Colorado and Washington markets. Since every participant in those markets needs a license, that wouldn’t be hard to do: any federal judge would cheerfully enjoin someone applying for license to commit a federal felony from doing so.
But the state-legal commercial markets represent only one of three systems that can deliver cannabis to customers. The loosely-regulated “medical marijuana” markets would be a far tougher nut for the feds to crack. And the purely illicit system, which handles the vast bulk of transactions today, is way too big for 4000 DEA agents to suppress without help. More than 90% of arrests for growing and dealing marijuana are made by state and local cops. So the feds need state and local authorities in Washington and Colorado to maintain pressure on illegal growing.
Constitutionally, the states have no mandate to even have drug laws, let alone enforce them. In this case, federalism is more than a legal doctrine: it’s a brute fact.
So: Washington and Colorado would like the feds to let their new commercial systems operate. And the feds would like Washington and Colorado to suppress production for out-of-state sale. When each of two parties has something the other wants, that’s the basis for a bargain.
And the Controlled Substances Act (Sec. 873, if you’re keeping score at home) orders the Attorney General to cooperate with state and local officials in enforcing the law, and authorizes him, “notwithstanding any other provision of law,” to enter into “contractual arrangements” with states and localities. The paper proposes that he use that authority to make formal deals with Colorado and Washington in which the Justice Department would agree to keep hands off state-licensed businesses in return for the states’ active help in suppressing interstate trade. That wouldn’t make the state-authorized activity legal, but it could formalize a program of targeted, selective enforcement that would give state licensees an effective safe harbor.
That seems to me a clear second-best to my preferred option, which would be a Congressionally-authorized program of policy waivers. As with the waivers that allowed state-level experiments with alternatives to AFDC, cannabis policy waivers could allow the states, in good Brandeisian fashion, to act as the “laboratories of democracy” in a policy area where there is currently much more passion than knowledge.
Here’s the abstract of the paper:
Passage of marijuana-legalization initiatives in Colorado and Washington poses a problem for the federal government: marijuana remains illegal under federal law, but the federal government lacks the capacity to fully enforce that law without state and local cooperation. Complete deference to state legalization would put each state’s cannabis policy at the mercy of its neighbors’. A system of legislatively-authorized policy waivers would allow controlled exploration of alternative systems of control. In the absence of such authorization, the executive branch could use existing authority to craft cooperative agreements with the states intended to confine the effects of each state’s new policies within its own borders.
More detail in this UCLA press release.
At yesterday’s Brookings/WOLA Congressional briefing on cannabis policy, I made my usual argument that (in rough numbers) 80% of the users of almost any drug use it moderately, take no harm from it, and do no harm to others, but that the other 20%, who use more than is good for them, account for 80% of the consumption and an even larger fraction of damage to themselves and others. My conclusion from that was the necessity of regulation, since the industry that sells the drug (or offers other potentially habit-forming services such as gambling) will always be financially dependent on dependent problem users, while the public interest is in serving the desires of non-dependent non-problem users while minimizing the number of dependent users.
Jonathan Rauch, who heads the Brookings side of the project, found that line of argument troubling. He asked me whether the interests of the responsible 80% should really have to yield to the interests of the irresponsible 20%. (Since the two groups aren’t distinguishable at a glance, there’s no way of restricting the consumption of problem users without somewhat inconveniencing non-problem users.)
That question, asked by someone whose intellect and ethical sensibility I have come to respect, led me to reflect on the difference between a moralistic or rights-based approach to a problem such as this one and a policy-analytic or outcomes-based approach. If you think of problem users and non-problem users as different people, it’s natural to ask which group’s interests ought to make way for the other’s. That seems to be a moral or constitutional question. But if you think of yourself as a potential user of a drug (or, as Jonathan suggested to me, the parent of a potential user), unable to know in advance whether your (or your child’s) use will remain controlled or will instead progress to dependency, and ask how much inconvenience in controlled use you want to sacrifice for protection against a bad habit, then you confront a practical problem rather than a moral one.
(Some readers will recognize in this Schelling’s solution to the puzzle of why it’s justified to save a larger rather than a smaller number of lives, when that’s the choice; if you imagine yourself as a member of one of the two groups, without knowing which one, it’s obvious you’d prefer a higher probability of survival to a lower one. Jonathan instead recognized this as a Rawlsian veil-of-ignorance argument, which also seems right to me.)
Of course, this same approach can be applied well beyond drug policy. Asking “How much do the non-poor owe to the poor?” is a moral question. Asking “How much protection would a reasonable person want against the risk of poverty?” sounds more like a computation. Of course, if you think of yourself as naturally immune to the risks of drug abuse or of poverty, you’ll be more inclined to let the drug abusers, and the poor, go hang. But that seems to me compatible neither with the Categorical Imperative nor with the Golden Rule. If we accept arguments from symmetry in physics, why not in ethics?
The following photo was left for me at a dead drop during my trip this week to Bogota, Columbia, at the International Society for the Study of Drug Policy. The photographer was apparently spotted sitting at the very back of the lecture hall, trying and failing to take a sharp picture in automatic mode without flash or tripod using his 300mm lens.
As you might imagine we’re all in a little bit of shock at this revelation. I don’t know what else to say, except that a University of Chicago tee-shirt will be made available to the funniest comment.
Postscript: We have a winner, Jeff Spross, video editor and blogger for ThinkProgress.org. He suggests over email:
“Rob Reiner is coming for your stash.”
Alternatively: “The U.S. prison industrial complex goes to eleven!”
His prize will be shipped Monday. Thanks for many worthy entries.
Rather than getting into the cultural or media criticism of the Frum-Riggs-Frum-Sullivan fracas over cannabis policy, perhaps it makes more sense to try to separate out the knowns and identify the unknowns. Experts on the question see open questions where passionate amateurs are most dogmatic about the answers.
1. Cannabis dependency is rarely as bad as severe alcoholism, but it can be plenty bad enough, and it isn’t very rare, especially among those who start – as most users now do – in their middle teens. (A sixteeen-year-old who goes beyond experimentation has about one chance in six of winding up a heavy daily user for a period of months or years.)
2. Most users – and even many frequent users – don’t go on to diagnosable abuse or dependency. There is little evidence of lasting damage from use that isn’t both heavy and chronic. It would be a mistake to attribute all of the suffering of even the heavy, chronic users to cannabis, as opposed to the social circumstances and personal traits that lead them to acquire and maintain the habit. But it would be equally a mistake to ignore their self-reports that cannabis is a source of trouble in their lives.
3. For the non-abusing majority of users, cannabis is a fairly harmless pleasure. For some of them, cannabis use lastingly enhances their lives by broadening their range of experience, deepening their appreciation of the arts, and enhancing their creativity by teaching them a new way of thinking. Very little is known about these phenomena in any systematic way, partly because the science is hard and partly because of the constraints and incentives that influence research.
Drug policy research is at best a modestly sized field. Nonetheless, its findings have significant potential to help societies develop more effective public policies regarding marijuana, heroin, cocaine, nicotine and other psychoactive drugs. I am therefore very glad to announce that an extension of the international drug policy research integration conducted for the book Drug Policy and the Public Good appears today in The Lancet. A generation ago, a reviewer of the world’s drug policy research findings would have been pressed to fill even one article in such a prestigious scientific outlet; the field has clearly matured since.
The three review papers have different foci:
*Louisa Degenhardt and Wayne Hall integrate the international evidence on the contribution of illicit drug use and addiction to the global burden of disease.
*Peter Reuter and Robin Room make their case that the international drug conventions succeed neither in providing medications (e.g., opiates) where they are needed nor in preventing the availability of widely abused drugs
*John Strang, Tom Babor, Benedikt Fischer, David Foxcroft, Jonathan Caulkins and I discuss “what works” in drug policy, reviewing the evidence on source country control, interdiction, policing, prevention and health and social services for drug addicted individuals.
Lancet has made the articles available with a free registration here.
A shorter take on some of the key conclusions in the third paper is also available for free in an op-ed by Jon Caulkins and me in The Guardian (UK) today.
I have spent too much time in public policy circles to be starry-eyed about the likelihood that scientific evidence will be always be heeded in a policy area that is often dominated by demagogues of various stripes. Yet I also see many positive signs in Europe and the U.S. of openness to information in quarters that had previously been a mix of loud voices and closed ears. Scientists cannot and should not control drug policy (that would be grossly undemocratic), but they certainly can contribute systematic and reliable findings to the policy debate and insist that serious research be given more weight than wishes, hunches and anecdotes. The reviews of the drug policy research knowledge base in The Lancet today are offered to policymakers and the public in that spirit.
Please consider this an open thread to debate and discuss anything in The Lancet papers if you are so led.
UPDATE: Here is a short interview with Dr. John Strang about the evidence for effective drug policy interventions