More on cannabis:
    autonomy, medical use, and the supremacy clause

Matthew Yglesias doubts that keeping someone from damaging himself through coercive means counts as a benefit. Well, turn it around: does inducing/allowing someone to damage himself by setting up a dumb choice for him to make count as a harm? If what Matthew proposes is a counting rule, I don’t see its justification. The principle of autonomy leads me to think that restricting people’s choice ought to be counted as a cost, but not that its benefits in the form of avoided self-damage should be ignored on principle.

Imagine that you were running an oceanside resort, with a beautiful walk along the cliffs that was dangerous in high winds. How many people would have to fall to their deaths, despite your sign saying “Don’t walk here when it’s windy,” before you decided that the path had better be closed?

Whether we’re comparing the grow-your-own policy against full legalization or current prohibition against grow-your own, can it really be right to ignore as a matter of principle the impact of looser controls on the rate of drug abuse and dependency? And as a practical matter, how serious a restriction would it be on autonomy to say that people who wanted to use cannabis had to either grow their own or find a generous friend with a green thumb?

Matthew also proposes that banning cannabis for everyone makes it more available to kids than allowing it for adults and forbidding it to kids only, which is his preferred alternative. I can’t see how that works. Making it legal for adults doesn’t interfere, in any obvious way, with clandestine growing for the juvenile market, and cannabis is so much more compact than alcohol (a pound of beer is a 16-ounce can, while a pound of pot is a thousand doses) that the leakage around a cannabis age barrier would be even more copious than the leakage around the alcohol age barrier. Moreover, age limitations make the use of the substance involved a badge of adulthood, and encourage kids to learn the mechanics of lawbreaking. [If I had my way, the age restriction on alcohol would go; it does some good in preventing drunk driving, but the notion that having a false ID is a normal thing for a college freshman to do makes me extremely uncomfortable.]

Matthew’s original post was a reflection on a New York Times editorial complaining about the conviction of a California medical-marijuana grower in a Federal court in which the judge barred any testimony that would have told the jury why he was growing the pot, or that he was doing so as an agent of the City of Oakland. The jurors, having convicted him of a crime carrying a five-year mandatory sentence, were extremely upset when they discovered the context of which the trial process had carefully kept them ignorant. Ampersand agrees with the Times, but wants to know what I think about it.

First reaction: yawn. Medical marijuana is not an important issue medically (Dutch doctors, whose patients have easy access to the drug, don’t use it much) and not an important issue for drug policy. It was clever of the drug-legalization movement to make medical marijuana the battleground, and foolish of the drug warriors to accept battle on ground so favorable to their foes. [I’m not saying that any individual drug warrior or drug-war group is foolish; any one of them who said “This is the wrong battle to fight” would have been excommunicated. That’s the problem with running a movement based on thought police.] But as a practical matter the whole business is barely worth talking about. That hasn’t kept me from doing so, of course.

Substantively, my view is that the only way to make marijuana available as a medicine (other than legalizing it outright, which isn’t going to happen anytime soon) is to put it through the FDA process. If a tenth of the money and energy that has gone into litigation and referenda had gone instead into medical research, cannabis would now be a Schedule II drug. But the one point the warriors and the legalizers agree on is that this is a topic to be argued about, not one to be studied scientifically. (That agreement is at a pragmatic, rather than a rhetorical level. The drug warriors insist that cannabis cannot be approved as a medicine without more research, and then do their best to make research impossible; the medical pot crowd — with the exception of Rick Doblin — pretends that adequate research has already been done and therefore makes no effort to get any going.)

Legally, Judge Breyer did precisely the right thing. The Supreme Court ruled (overturning one of Breyer’s decisions) that, as a matter of law, cannabis has no medical use, and that therefore the issue of its medical value could not be raised in court. Under the Supremacy Clause, a California initiative does not trump a federal prohibition. Growing cannabis is against federal law, and growing it under contract to the City of Oakland is against federal law to precisely the same extent as growing it to supply an army of pushers lurking outside elementary schools.

Moreover, even California Proposition 215 doesn’t permit someone to grow a thousand marijuana plants to be distributed to patients though “buyers’ clubs.” Prop. 215 provides merely that a patient in need of cannabis, or that patient’s “primary caregiver,” may grow or possess cannabis. It’s clear from the text that a “primary caregiver” is understood to be a close relative or friend who takes responsibility for an individual patient. “For the purposes of this section, ”primary caregiver” means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.” The idea that a buyer’s club, which of course is not an “individual” at all amd which does not assume general responsibility for its clients, can be the “primary caregiver” for hundreds of people at a time is utterly fantastic.

Had the jury known all the facts, it would have nullified the law by acquitting a person clearly guilty under its terms. I’m not going to get into the argument about whether that’s a good idea, but under current law the defense isn’t allowed to argue that the jury should do so, or present evidence relevant to the nullification but not to legal culpability. The five-year mandatory for large-scale pot growing is unconscionable, and the Justice Department decision to frame the charge in a way that triggered the mandatory is something for everyone who contributed to it to be ashamed of. But the legality of what Ed Rosenthal was convicted of doing isn’t really an open question; is there some part of the phrase “supreme law of the land” that his lawyers would like explained more carefully? In any case, ragging on Judge Breyer is pointless: he was just doing his job.

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: