How not to make a hash of marijuana legalization

The cover spread from the current Washington Monthly: Jonathan Rauch, Jonathan Caulkins, and me on how to get legalization right.

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.

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: Markarkleiman-at-gmail.com

34 thoughts on “How not to make a hash of marijuana legalization”

  1. Mark,

    Great article! Question for you: Is there empirical evidence to show that state-run alcohol stores cut-down on problem drinking? My impression is that it has not…

    Frank

    1. A heap of evidence actually — check out the work of Drs. Harold Holder and Alex Waagenar on Iowa, West Virginia and other states that dropped state stores.

      1. State run stores are a good idea. I actually thought that was the solution to the Raich decision– if a state got into the marijuana business, it would not be bound by federal law and could also control its advertising (although the experience with lotteries is sort of discouraging on that front).

        But the anti-legalization side would never accept state run stores. They don't want the government to sell things they morally disapprove of.

        1. To clarify one point: The buying and selling of marihuana would still be federal crimes, as would all of the federal banking and financial crimes associated with drug trafficking. While it would be more awkward to prosecute state employees, the states and their employees are subject to federal law just like everybody else.

          1. That's not definite. It's entirely possible that under the Tenth Amendment compulsion doctrine, the US government has no power to arrest state officials for producing or selling narcotics.

            Further, as a practical matter, the US government might not want to force a confrontation with state officials over that sort of an issue.

          2. I think it’s pretty much as definite as definite can be that federal criminal laws apply to employees and even officers of states such as governors. Specifically, if the prohibition of narcotics is within the power of the federal government then the 10th amendment would not immunize state officials involved in violating narcotics laws. There have been hundreds of state and local officials, especially representatives of law enforcement, who have been federally prosecuted for violating laws against narcotics trafficking.

          3. Yeah, but there's a big difference when state law authorizes them to do it, i.e., they are acting as arms of the sovereign.

            There's a constitutional limit to the federal government conscripting state officials. See Printz; New York v. United States; Florida Savings Bank.

            The federal government may not have the power, under current doctrine, to arrest a state official for selling marijuana as a representative of the sovereign.

          4. Assuming that, say, a local sheriff makes suitable financial arrangements to receive political protection from his state, are there any limits to his immunity from federal laws? Could he become a distributor for a Mexican drug cartel or provide them protection in his county for a piece of the take? Could a state sell "sanctuary" to people who violate federal securities laws?

            Can a state nullify federal laws it disagrees with? Are US Supreme Court decisions binding on the states? Are the Civil Rights Acts binding on the states and what, if any, limits exist on the state's ability to immunize people who are on its behalf, albeit indirectly?

            Frankly, I always thought that Prinz was an insane decision by crazy people that would eventually legimitze the old doctrine of nullification. When I wrote that, a lot of people said I was the crazy one. Evidently not.

          5. The big check is ONLY the states have that power. The smaller check is it doesn't apply at all to laws enforcing the amendments that have enforcement powers written into them. And the final check is it doesn't apply to exclusive federal powers like war.

            So a state can nullify some laws if they set a big state run bureaucracy, and it can't nullify civil rights laws at all.

          6. Are these rules or just guidelines? If a state can nullify federal laws on narcotics and money laundering, why can't it nullify civil rights laws?

          7. They are rules. Starting with the 13th Amendment, many constitutional provisions contain their own enforcement provisions. The Supreme Court has ruled they overrode state sovereignty.

            It's only when the federal government is imposing regulations on state officials acting in their official capacity, under the Commerce power or some other general constitutional power, that this kicks in.

        1. Hi Frank,
          Harold Mulford, whom I admired a great deal, did some initially contrary work in Iowa although he ended up not being able to sustain his case empirically. In science, there is virtually always some contrary evidence, but it would not be correct to say it's 50-50 or even 80-20 in this case. And it is worth noting that the alcohol industry has bankrolled and promoted the minor contrary evidence, up to and including getting caught red-handed trying to bribe scholars to write slanted reviews. The most comprehensive review of all the evidence is in a book called Alcohol: No Ordinary Commodity. I suspect Phil Cook also takes this up in Paying the Tab, although it is awhile since I read that so I am not sure.

          1. I am just doubtufl that state-run alcohol stores have more than a marginal impact at best on discouraging problem drinking, while a huge inconvience on all those who don't have a problem or a slight problem with drinking.

            I mean, no one would say we need state-run grocery stores to prevent problem eating or problem sugar consumption. And these problems are more morally equivalent than you would think. "Problem eating" probably costs society about .5-1% of GDP, which would be roughly equivalent to problem drinking.

            Frank

          2. There is a distinction between political views and facts (on this website anyway). If your case is that you are against it on principle, even if it has costs, that's of course okay: we all have principles and that's essential to democracy. But to say you are against it on principle so therefore the evidence that it has downsides doesn't exist (or that years of scholarship can be discounted based on causal viewing) is not compelling as an argument (again, on this website anyway).

          3. Keith,

            Agreed, but I think you are the one getting caught up in principles. If state-run alcohol stores are so awesome and greatly mitigate the risks of problem drinking, call for state-run grocery stores as a way to mitigate problem eating! I think state-run alcohol stores are similar to a number of restrictions placed upon alcohol after prohibition, such as the beer wholesalers and state-mandated industrial structure of the drinking biz. They barely impact problem drinking, but create huge hassle factors for more causual users and huge surplus losses for capital and labor.

            I am not really against it in principle, but think that the costs outweigh the benefits, and if you think a marginal benefit outweighs the huge hassle/statist downsides, then you should be for state-run grocery stores.

            Frank

          4. I didn't argue for state alcohol stores Frank. I responded to what I took to be a sincere request to learn.
            You asked for scientific literature and I gave it to you because I thought you wanted to learn about a topic in which you had expressed interest. Three hours ago I pointed you to an enormous literature, now you think you know what it concludes. It would have been quicker to start by saying you are against them on principle and not interested in evidence, then I wouldn't have taken the time to respond to what I read as an open-minded request to learn something about what science says regarding a particular topic. To reiterate, I think it's fine to be against them on principle, but it's not fine to waste the time of people who make a good faith effort to respond to a request for help.

          5. Keith,

            No, thanks for the links to the research, but from what I can tell, they are not arguing that it greatly reduces problem drinking.

            But if I get more time, I will dig more into the studies and hopefully be wowed by how much state-run alcohol stores reduce problem drinking.

          6. Keith is making a serious effort to look at the totality of the evidence. You're basically deciding to skip over the evidence and rely exclusively on argument by analogy. I have seen libertarians pull the same stunt with public education ("if you think public schools are good, you must also want the government to run grocery stores") and I am not impressed.

            Yes, there are some similarities between grocery stores and liquor stores. But they are two different things, and there is no inherent reason why anyone should be required to treat them identically.

          7. Actually (and amazingly, I am defending Keith on this for the first time ever), why wouldn't state run grocery stores be more effective at preventing problem eating or sugar consumption, IF that were the policy priority? Many schools resist soda and fast food company money and sell nutritious food, for instance.

            There's no guarantee of that– that's what lotteries tell us. But if you have good policymakers who want to make it tougher for alcoholics or drug addicts to harm themselves, state-run stores could be VERY effective.

      2. I will note that having recently moved from a state store state (VA) to a private store state (MA), the ease of buying alcohol, and the prices, are not very different. If anything, cheap distilled liquors were easier to get in Virginia. (One counter-difference between VA and MA is that only alcohol stores can sell beer in MA–in VA, groceries could.)

        I'll note that state stores don't really affect alcohol advertising that much–while that will depend on production structure, most alcohol advertising (like most food advertising) is done by manufacturers and brands, not stores. (VA had plenty of magazine ads for Absolut.)

        (My preference would be moving marijuana to the fan-fiction category–legal to produce, legal to own, illegal to sell. I'd even outlaw medical sales; for real medical needs, I suspect that charitable growing would be an adequate solution.)

        1. The problem is that there's no way to make something illegal to sell without screwing over buyers. (It's the same in the other direction with proposals to make prostitution illegal to buy.)

          At some level, you have to ask yourself "is there any reason someone who wants to get high should not be able to purchase marijuana from someone willing to sell it to them?". And the problem is, absent other facts (such as addiction, or safety), the answer is basically no. It's OK to get high; ergo, it should be legal to purchase substances to accomplish that, with proper regulation of the potential for abuse. The real disagreements are going to be over the scope of those regulations.

  2. It’s a good piece. As usual, you are too unwilling to acknowledge that there are benefits as well as costs to the big business model of marijuana you disfavor– you are more likely to get purer, safer products from large enterprises than from mom and pops, grower’s collectives, and grow-your-own. I also think you overstate the problems caused by the commercial speech doctrine; it doesn’t prohibit restrictions on marketing– it prohibits restrictions on truthful, non-misleading forms of marketing directed at legal users. You can still have marketing limits with respect to advertisements that target children, or that don’t acknowledge legitimate safety risks. You can probably require advertisers to warn the public about the potential of addiction and abuse, as long as the warnings are truthful and not overstated. What the commercial speech doctrine prohibits is imposing arbitrary restrictions on producers’ right to TRUTHFULLY tell the public about thei product, for the purpose of depressing marijuana sales. You may disagree with that, but it’s a lot narrower than you portray it.

    Finally, I think to the extent you bash on state-by-state legalization and blunderbuss initiatives, these are clearly by-products of the excesses of drug prohibitionists, including the more moderate ones. For years, legalizers simply had no voice at the table at all. They couldn’t even get a fair shot at proving the medical benefits of marijuana through legitimate research. They certainly weren’t permitted to argue that getting high was a legitimate recreational activity which could be beneficial for some people. Legislatures were in thrall to the drug warriors; they gave them more and more money and more and more power.

    Even now, on your own blog, you don’t really like it when legalizers come in and enter the conversation in the comments, because you don’t see them as “serious” and don’t like that they forcefully push back against “experts” who favor continued restrictions on freedom. And you are actually one of the good guys who is not wedded to prohibition and who is open to legalization.

    Mark, if you don’t like initiatives and state-by-state piecemeal legalization, if you don’t like run-arounds involving medical marijuana and conflicts among state, federal, and international law, the only way to get a better policy is if the non-serious, libertine types that you don’t want in your comments threads get a seat at the table and the presumption that only people who accept the idea that there should be serious restrictions on people’s freedom to use recreational drugs can be part of the conversation, with the acceptable form of “compassion” being we send people to compulsory treatment rather than jail.

    That doesn’t mean you have to AGREE with the legalizers. Only that the legalizers need to be taken seriously by policymakers, and be given a seat at the table and a chance to push back against the mentality that all drug use is bad and must be stopped. That latter mentality didn’t just get us bad drug policy, it got us a bunch of lies about how dangerous narcotics are and a delegitimization of what really is just another recreational choice.

    Ultimately, the reason our drug policy is so screwed up is because the stated justifications (danger, addiction) didn’t line up with the actual justifications (moral disapproval of pursuing pleasure, having fun, and tripping out, dislike of youth and stoner culture, Puritanism) for our policies. So in the end, the public had to go around the policymakers and do it themselves. And the general public is a lousy legislature that makes bad laws; you will get no argument from me on that.

    But what I have yet to hear is any scenario where the policymakers are willing to cooperate on a scheme that allows Americans to use recreational drugs. So it’s the state by state initiative process, or continuing to fight the war on drugs, at this point.

  3. It's a good piece. As usual, you are too unwilling to acknowledge that there are benefits as well as costs to the big business model of marijuana you disfavor– you are more likely to get purer, safer products from large enterprises than from mom and pops, grower's collectives, and grow-your-own. I also think you overstate the problems caused by the commercial speech doctrine; it doesn't prohibit restrictions on marketing– it prohibits restrictions on truthful, non-misleading forms of marketing directed at legal users. You can still have marketing limits with respect to advertisements that target children, or that don't acknowledge legitimate safety risks. You can probably require advertisers to warn the public about the potential of addiction and abuse, as long as the warnings are truthful and not overstated. What the commercial speech doctrine prohibits is imposing arbitrary restrictions on producers' right to TRUTHFULLY tell the public about thei product, for the purpose of depressing marijuana sales. You may disagree with that, but it's a lot narrower than you portray it.

    Finally, I think to the extent you bash on state-by-state legalization and blunderbuss initiatives, these are clearly by-products of the excesses of drug prohibitionists, including the more moderate ones. For years, legalizers simply had no voice at the table at all. They couldn't even get a fair shot at proving the medical benefits of marijuana through legitimate research. They certainly weren't permitted to argue that getting high was a legitimate recreational activity which could be beneficial for some people. Legislatures were in thrall to the drug warriors; they gave them more and more money and more and more power.

    Even now, on your own blog, you don't really like it when legalizers come in and enter the conversation in the comments, because you don't see them as "serious" and don't like that they forcefully push back against "experts" who favor continued restrictions on freedom. And you are actually one of the good guys who is not wedded to prohibition and who is open to legalization.

    Mark, if you don't like initiatives and state-by-state piecemeal legalization, if you don't like run-arounds involving medical marijuana and conflicts among state, federal, and international law, the only way to get a better policy is if the non-serious, libertine types that you don't want in your comments threads get a seat at the table and the presumption that only people who accept the idea that there should be serious restrictions on people's freedom to use recreational drugs can be part of the conversation, with the acceptable form of "compassion" being we send people to compulsory treatment rather than jail.

    That doesn't mean you have to AGREE with the legalizers. Only that the legalizers need to be taken seriously by policymakers, and be given a seat at the table and a chance to push back against the mentality that all drug use is bad and must be stopped. That latter mentality didn't just get us bad drug policy, it got us a bunch of lies about how dangerous narcotics are and a delegitimization of what really is just another recreational choice.

    Ultimately, the reason our drug policy is so screwed up is because the stated justifications (danger, addiction) didn't line up with the actual justifications (moral disapproval of pursuing pleasure, having fun, and tripping out, dislike of youth and stoner culture, Puritanism) for our policies. So in the end, the public had to go around the policymakers and do it themselves. And the general public is a lousy legislature that makes bad laws; you will get no argument from me on that.

    But what I have yet to hear is any scenario where the policymakers are willing to cooperate on a scheme that allows Americans to use recreational drugs. So it's the state by state initiative process, or continuing to fight the war on drugs, at this point.

    1. … you are more likely to get purer, safer products from large enterprises than from mom and pop's, grower's collectives and grow your own.

      Yes, sure. Because the nicotine supply business did such a wonderful job of supplying purer, safer tobacco products. They never adulterated their products with additives to increase the potency.

      It's possible that THC levels might be more consistent under a big business model, but I'm not even convinced of that. It's certainly something a grower's co-op could do on its own. Assaying and blending aren't exactly new arts.

      1. It is true tobacco companies manipulated their products. On the other hand, big pharma's products are exponentially safer and more effective than small scale herbal nostrums.

        1. So, you think that retail marijuana is going to be more like ethical pharmaceuticals (which, I will point out are heavily regulated by the FDA) than like tobacco?

          Really?

          1. My point is that the safest model is federal regulation and big sellers. And the reason we can't have that is because drug warriors won't allow Congress to move in that direction. Thus, we get piecmeal and inadequate state initiatives, which really do increase the risk to the public.

          2. But tobacco is regulated federally, albeit ineffectively.

            I don't think we're going to come to any sort of agreement about this, MJ is a consumer product, pharmaceuticals have a gatekeeper between the consumer and the seller. I don't think there is a hope of effective Federal regulation for MJ any more than there is presently for tobacco. I do think tobacco is a better model of what is likely than the prescription drug market is.

          3. I actually think federal regulation of tobacco has gotten a lot better.

            And big alcohol sells unadulterated, properly labeled products, don't they?

            The issue with tobacco was very specific– they were underregulated in a manner that allowed the companies to manipulate the product to produce more addicts. As long as you avoid that problem, big corporate sellers are much better than small ones. Just as they are in basically every manufacturing business on earth. Economies of scale, etc.

          4. Tobacco was never illegal, though. Regulations on tobacco had to more or less start from scratch, with a well-entrenched lobby and several paid-for Appalachian legislators already in place once the science regarding adulterants began to permeate into general knowledge. It's unlikely that cannabis regulations will face the same difficulties. Big Marijuana is a long-term worry, it will not spring forth overnight, especially during the slow and uncertain transition from Schedule I. As long as it doesn't wait until every state of significance rolls back its policies to total, tobacco-like deregulation, the federal government will be able to name its terms because scale producers don't want to risk federal prosecution and uniform terms will likely still be preferable to state patchworks.

  4. Great articles and smart approaches. Politically untenable, especially after Colorado started gloating how much more revenue
    they are going to overestimate. More like, tears from financial ruin for many of these early marijuana entrepreneurs and increased
    problem use from cheaper and widespread availability. But hey, gotta love voter initiatives. Give what the voters (think they) want.

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