California marijuana legalization on “Air Talk” tomorrow

11 am on 89.3

11 a.m., KPCC 89.3 or [Audio posted here.]

We just taped it, with a live audience: Judge Jim Gray, Sheriff Lee Baca, Oakland City Attorney Joe Russo, me, Larry Mantle moderating.

And no, neither side of the drug-legalization debate has invented any new arguments or dropped any old ones, no matter how often they’ve been shown to be logically wrong or factually baseless.

I was recruited because they lost an “anti” at the last minute, but I made it clear I’m undecided: equally un-thrilled with the tactics of both sides. The advocates of the proposition couldn’t explain how it was supposed to work, except that the cities and counties would somehow work it out; Sheriff Baca couldn’t explain why locking up pot-sellers is a good use of prison cells.

Overall, though, I thought it the debate was both civil and somewhat illuminating.

Update Here’s a partial list of oft-debunked falsehoods and fallacies that came up once again last evening:

1. Cannabis is not in fact California’s leading cash crop. That claim was satire, not calculation.
2. Evidence for the causal version of the “gateway” theory – that making cannabis more available would increase use of cocaine, opiates, or methamphetamine – is roughly non-existent.
3. The Netherlands (not, properly, “Holland”) did not in fact legalize pot-growing, precisely because its treaty obligations – the same as ours – forbade it.
4. Decriminalization (as in Portugal and Argentina) is not the same as the legalization of commerce.
5. Cannabis does not contribute 60% of the revenues of the armed Mexican drug trafficking organizations, or anything like that share. Maybe 10-20%.
6. Alcohol is not harder than cannabis for teenagers to acquire. Legalizing cannabis can’t possibly make it less available.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

17 thoughts on “California marijuana legalization on “Air Talk” tomorrow”

  1. Tactics, schmactics.

    Is it so bad to want to legalize pot because you're tired of 85% of the folks you know having broken the law, and don't see it as all that wrong? You might as well outlaw premarital sex for all the good it would do.

  2. You're "undecided" about drug re-legalization? You'd better work harder on getting that across, I, for one, would never have guessed.

    I think they picked the right guy to be "anti".

  3. It seems that the problem with being a drug policy expert is that one feels compelled to come up with the best policy, regardless of what rights are infringed. Just as the First Amendment generally protects freedom of speech regardless of the harmful consequences of the speech, the Constitution should be viewed as protecting the freedom to control one's own body, regardless of the harmful consequences. If we have a constitutional right to buy condoms (Griswold) and to have abortions (Roe), then surely we have a right to ingest whatever plants we want, whether marijuana or broccoli. The latter, by the way, causes flatulence, and as such is probably more publicly offensive than marijuana.

  4. No, Brett. I'm clearly in favor of legalizing cannabis, if it can be done without creating an industry devoted to the manufacture and maintenance of cannabis dependency. What I'm not clear about it whether to vote for this specific ill-drafted and dishonestly promoted initiative, which purports to regulate and tax something that remains a felony under Federal law.

  5. Speech isn't free because we don't care about the harmful consequences. Its free because the restriction on freedom is clearly bad, whereas any benefits are small, and possibly negative because deciding what is 'bad' speech is not subject to any real objective rules and so would mostly be a way to shut up political opposition or moral panic situations.

    Cultures which have good ways of deciding on bad speech do have enforced norms against them. For instance plagiarism in academia.

    Drugs are different, because the harms mostly accrue to the one who decides to use them.

  6. Mark, the "ill-drafted and dishonestly promoted" tag applies to each of the stimulus package, Obamacare, and cap and trade. During the run up to votes on those initiatives, their proponents engaged in considerable puffery and often waived their hands at significant problems. Despite each bill having flaws at the margins – which I think even you would acknowledge – lots of people would still maintain that they are/would be good laws, certainly better than the status quo. So, to me, your ambivalence toward the pot initiative seems a bit casuistic.

    For anyone in the pro-legalization camp, I don't think the illegality of cultivation under federal law can be the basis for a serious objection to the initiative. Approving the initiative presents a superb opportunity to convince our elected representative to repeal a federal statute that you think is wrongheaded. If Congress and the Executive decide to allow 21 USC 841(a) to remain the law of the land, well at least the court battle over the initiative will be a little bit interesting.

    Can you explain your administrability objections a little bit further? On my reading, the law just lets people grow 30 sq. ft of plants and possess an ounce of pot. Sales are illegal unless the locality approves them. Following such local approval it is only legal to sell pot to people over the age of 21. These seem like bright line rules to me. I think cops could handle enforcing these provisions of the law.

    Do you just think that it will be hard to actually reap much in the way of tax dollars from the regulated sale of pot? If so, shouldn't the fact that people who want to grow their own pot and share it with their friends will no longer be criminals trump a minor concern about maximizing tax revenue?

  7. sl miller:

    Yes, I think revenue issues ought to take a back seat. If the proposition were simply to repeal California's criminal statutes about cannabis, leaving enforcement of Federal law to the Feds, I'd be enthusiastic about it. "Grow-your-own" is in fact my preferred policy outcome. But the pretense that California cities and towns can tax and regulate an actitivty that Federal law (compliant with international treaty obligations) forbids is silly. Anyone who pays a local marijana-seller's tax or files paperwork showing compliance with a local ordinance would be confessing, in writing, to a Federal felony.

  8. Professor Kleiman:

    I don't know enough about the initiative to take a position on it, but it seems to me that it's not a fatal flaw that it sets up a purported regulation and taxation scheme, for several reasons:

    1. There's nothing at all wrong with trying to push the state to force the Supreme Court to keep deciding Raich v. Ashcroft over and over again. The fact is, these initiatives are a form of civil disobedience against a really pernicious federal infringement on state sovereignty as well as the right of individual Californians to decide what to put in their body.

    2. If the federal government ever did come to its senses on pot, you'd want to have a state regulatory and taxing scheme in place, especially since you are afraid that in fact legalized pot would lead to an unregulated marijuana dependence industry similar to tobacco marketing.

    3. Even if the federal government doesn't repeal marijuana's Schedule I status, it's entirely possible that they would decide not to enforce federal law in California if we legalized it, just as Obama has basically already done with medical marijuana. Again, you'd want a regulatory scheme in place if this happened.

    4. Even if the federal government continued maximal enforcement, taxing criminal activity is not unheard of, nor is it unheard of that criminals will pay the taxes. So it's possible for the law to be somewhat effective even in the face of full federal opposition.

    That said, I would prefer it if the state simply enacted a law permitting it to grow and sell marijuana itself. Not only would that meet objections about creating an addiction industry, but it would also make it much more difficult for the federal government to stop it– both because there are precedents (New York v. United States, Printz) that prohibit direct federal interference with the actions of states as sovereigns, and because I don't think any President in a million years would try to shut down a marijuana farm guarded by armed state law enforcement officers.

  9. Yes, you'd want to have a state regulatory system in place, not a mish-mash of policies at the county and local level.

  10. Yes, you'd want to have a state regulatory system in place, not a mish-mash of policies at the county and local level.

    Since the treaties to which the United States is signatory forbids any state or province to legalize cannabis other than for medical purposes, and since those treaties have the full force of Federal laws,and since duly enacted Federal laws are supreme over state laws, the proposal to have California go into the cannabis business itself is, while undeniably clever, also undeniably unconstitutional. We make fun of this sort of crap when fly-over states try it with health care.

  11. My intuition is that, if this should pass, the grow-your-own and share-among-adults features of the initiative could devalue cannabis to the point where retail sales wouldn't be profitable (especially if taxes are imposed). If this happens, wouldn't this turn into exactly the "grow your own" policy Mark wants?

  12. Since the treaties to which the United States is signatory forbids any state or province to legalize cannabis other than for medical purposes, and since those treaties have the full force of Federal laws,and since duly enacted Federal laws are supreme over state laws, the proposal to have California go into the cannabis business itself is, while undeniably clever, also undeniably unconstitutional.

    You need to read the Jesus Miranda case from a couple of years ago. Even though we were signatories to the Vienna Convention on Consular Relations, the President's order that states comply with it was ruled null and void. It's very much an open question whether the President could do anything to require a state to comply with the Single Convention on Narcotics, as opposed to simply aligning federal law with the convention.

  13. Undoubtedly, California could repeal its own cannabis laws. But if California enters the cannabis business, it's the Federal government's obligation to stop it. I don't like that treaty, but we signed it, and a "so what?" shrug would come from ill grace from those of us who complained loudly about the lawlessness of the Bush II regime.

  14. International law may require the government to stop it, but domestic law may not permit the President to actually do so. That's what the court ruled with respect to the vienna convention on consular relations– we may be in violation of the treaty, but the president has no power under the constitution to order states to comply.

    That's life in a federalist system, professor.

  15. "Alcohol is not harder than cannabis for teenagers to acquire."

    I'm sorry sir, but I can tell you from experience growing up in San Francisco (I'm 20) that this is very, very wrong. Believe it or not.

  16. Simple logic would dictate that cannabis is easier than alcohol for those under 21 to acquire. Most alcohol sellers won't sell to those who can't prove that they're at least 21. All pot sellers will.

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