Changing my mind on cannabis legalization in Arizona

Since I don’t vote in Arizona (though, as it happens, I was born there) I hadn’t studied the details of the cannabis-legalization proposition which will appear on the ballot there this fall. So when the Sandra Day O’Connor Institute invited me to join a panel discussion, I came in thinking only what I generally think about such measures:

  1. Cannabis ought to be legal. Prohibition has broken down to the point where the harms associated with trying to control an illegal market generating $40 billion a year in criminal revenues greatly exceed the benefits, and there’s no plausible route back to effective prohibition.
  2. We ought to legalize in a way that makes moderate use by adults easy, while discouraging the formation of bad cannabis habits (an increasingly common problem) and use by minors.
  3. Alcohol-style legalization, which is what the ballot propositions generally offer, is a bad way to do that, because a for-profit industry (like the existing illicit industry) will make most of its money selling to heavy daily users rather than casual users, and about half the daily users – by their own self-report – have lost control of their cannabis habits.
  4. There are lots of other, better options.
  5. Even within a for-profit model, there are plenty of ways to encourage temperance, starting with keeping prices high, restricting persuasive marketing, and requiring that sales clerks have training in pharmacology and the prevention of substance use disorders and a professional responsibility to give advice in the interest of their customers, not their employers.
  6. It would therefore be better to handle this through the usual legislative process rather than by initiative.
  7. To make that workable, Congress should act to allow states to legalize (waiving the federal criminal laws that would otherwise apply) if their plans to do so meet rather strict criteria, as determined by the Secretary of HHS and the Attorney General. Those waivers should have to be renewed periodically, in order to hold the states and the industry to the promises made in order to get them.
  8. But since the state and federal legislative processes clearly won’t do what a majority of the voters clearly want them to do, I’d vote for any halfway-reasonable legalization initiative, both to end the arrests sooner rather than later and to nudge the legislators along.

So, going in to the discussion, I was prepared to advise Arizona voters to hold their noses and vote “yes.”  That’s the same advice I’d give voters in California.

But clearly there are some propositions that are so bad, and so hard to fix, that the voters ought to reason the other way: vote “no” to encourage the advocates to come up with something less awful. My conclusion, after participating in the discussion, is that Measure 205 is bad enough to warrant that treatment.

What changed my mind?

Mostly, it was what I learned about the substance of Measure 205:

  1. For the first two years, it restricts all sorts of commercial-cannabis licenses (growing, processing, testing, and retailing) to incumbent medical-marijuana suppliers, who are also, by a strange coincidence, among the sponsors of the measure. (That includes J.D. Holyoak, the “pro” side’s participant in the panel.)
  2. Any subsequent issuance to potential competitors must be approved by a seven-member commission, three of whose members must be the very incumbents whose oligopoly  would be threatened by fresh competition.
  3. The tax is set at 15% of the sale price, and will thus fall as prices fall. (They’ve been dropping about 2% per month in Colorado and Washington.)
  4. There are no meaningful provisions designed to protect public health: no marketing restrictions, no vendor training.
  5. Worst of all, the “voter protection” provision means that the law can’t be changed without a 3/4 vote in each house of the legislature, and even then only in a way that “furthers the purposes” of the law. The prevention of substance use disorder is not among those stated purposes.

I have to confess, though, that part of my change in attitude was due to the behavior of Mr. Holyoak. He responded to the moderator’s plea for “civil discourse” by more or less calling District Attorney Bill Montgomery – arguing for the “no” side – a liar in his very first intervention. For the rest of the evening, Holyoak responded to fact-based criticisms of his position – not only the DA’s, but those of the two neutrals (yours truly and Ashley Kilroy, who runs cannabis policy for the City of Denver) – primarily by denying the facts and partly with bluff and bluster.

The whole affair reminded me of previous encounters with “potrepreneurs”: talking to them about cannabis use disorder is like talking to ExxonMobil executives about global warming. Mr. Holyoak offered no justification for the crony-capitalist aspects of the proposition, merely insisting with a self-satisfied smirk that if you didn’t like prohibition you had to vote for Measure 205 because that’s what he and his friends had put on the ballot.

On the other hand, Mr. Montgomery was, if more polite, no more reasonable. He minimized the impact on people’s lives of making 15,000 cannabis-possession arrests per year. He offered no plan for dealing with the booming black market under continued prohibition. He never mentioned the damage cannabis prohibition in the U.S. does to Mexico. And he rejected my suggestion that he and his colleagues on the “no” side pledge to support more sensible legalization through the legislative route if it were defeated. Mr. Montgomery based that rejection on the grounds that the federal government, which has not interfered with legalization in Washington, Colorado, Oregon, or Alaska, might whimsically decide to sue Arizona. I doubt he believed it when he said it.

In other words, it was the usual standoff between the legalizers and the drug warriors, with each side demanding that you ignore the logical weaknesses and practical disadvantages of its own position because the opposing position is so horrible, and neither interested in any sort of compromise or fact-based inquiry.  I finished the evening wishing that both sides could lose.

However, short of an asteroid strike, one side will win. In general, as noted above, I’d rather have that be the legalization side. But that assumes that a bad legalization might become better over time, and in this case the proposition was drafted precisely to make that impossible. So I’d recommend that the voters of Arizona do what the voters of Ohio did when presented with a similar pile of special-interest garbage: send the “pro” side back to the drawing board.

Elections are like buses: there will always be another one coming. There is, therefore, no good reason to let haste get you locked in to a bad system that can’t be changed. And at some point the greed-heads have to learn that the voters won’t simply take whatever they’re given, even to fix a policy they’ve come to dislike.

Footnote My thanks to the Sandra Day O’Connor Institute for the invitation and to Sarah Suggs for all her work organizing the event. Of course the views expressed here are mine and shouldn’t be attributed to the Institute.

I also owe thanks to Ashley Kilroy, from whom I learned a great deal, and to Brahm Resnik for moderating a difficult panel with grace and skill. If you want to see for yourself, the full video (in three 30-minute segments) is on line.


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:

12 thoughts on “Changing my mind on cannabis legalization in Arizona”

  1. I thought your article was interesting but misses the key point of felony enforcement in Arizona. This isn't California or Colorado before legalization, where being stopped with pot results in some minor hassle. Arizona has zero-tolerance felony laws for marijuana. As I've reported, basically everyone except minors who are found with any amount of pot — yes, even one seed — is arrested and booked into jail. Being caught with hashish, shatter or other concentrates, (called "narcotics" under Arizona law) or growing even one plant, is an even worse felony with worse penalties. After the bust, you make your deal with the prosecutor to make sure a felony doesn't go on your record. Ray.

    1. Then those in favor of legalization ought to be more engaged so that the measure available isn't so perverse. If it goes down, maybe they'll be bothered to help write a better one.

  2. You make it sound like all it takes is to write a good initiative. In fact, getting a ballot initiative passed requires more than $1 million to hire all the petition gatherers and run the campaign. The anti-side has raised more than a $1 million and will be using it soon to flood the airwaves — that takes additional money to counter. If 205 fails, tell me who will put up the $1 million-plus for the next legalization effort.

  3. In the spirit of acknowledging the logical weaknesses and practical disadvantages of one's position, can you elaborate on the weaknesses and practical disadvantages of keeping prices high?

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