Ending the forever war on drugs pt. 2: the new face of marijuana prohibition

by Dave Maier

Consider how difficult it has been to get Big Tobacco to admit that cigarette smoking is bad for you at all, let alone that it kills many thousands of people every year. In particular, you might remember that time when all the major executives swore under oath at Congressional hearings that cigarettes are perfectly safe. Consider as well that most tobacco profits come from heavy users of tobacco, not smokers of only the occasional cigarette. So the all-important bottom line – public health be damned – can be preserved only by recruiting new heavy smokers as the older (or not so older) ones die off or quit. For Big Tobacco, this means targeting children, who are not only risk-takers by nature, but very often concerned above all to be cool. If cigarettes are risky and cool, then children will become smokers, and many (some studies say 30%) will become hooked, preserving corporate profits for another generation.

Reefer_sanity_1Marijuana prohibitionists hold the analogous establishment of Big Marijuana up as a nightmare scenario. If big money is involved – as of course it is – it is quite natural to worry that Big Marijuana will be just as bad as Big Tobacco: fighting warning labels, putting out deceptive and child-friendly advertising (Joe Camel = Joe Cannabis?) fighting class-action lawsuits with expensive lawyers, and so on. Prohibitionists point to the existence of yummy cannabis edibles (THC-infused gummy bears! “Pot Tarts”!) and fanciful marijuana strain names (“Girl Scout Cookies”! “Green Crack”!) as evidence that even the nascent legal cannabis industry has our defenseless children in its sights.

The most vocal proponent of this line is Kevin Sabet of the anti-legalization organization Project SAM [Smart Approaches to Marijuana]. Sabet represents a new development in prohibitionism, consciously distancing himself from old-school drug-warrior tactics in the hope of reaching a more moderate audience. In terms of actual policy recommendations, in fact, Sabet sounds quite a bit like yesterday’s marijuana reform activists. NORML's Roger Roffman, for example, whose book we looked at last time, spent most of his career pushing not for legalization, but for decriminalization, and more generally a reconstrual of marijuana policy not as a matter for law enforcement but instead as a public health issue: not arrest and incarceration, but education and treatment.

Here’s Sabet in his own words:

There is no doubt that current policy leaves much to be desired. Today’s marijuana policies leave us with a substantial abuse problem, $15-$30 billion in illegal revenues, a product of unknown quality that is accessible to youths, and arrest records for many people (and disproportionally, people of color) whose most serious crime is smoking marijuana. But we don’t have to live in an all-or-nothing world. There are smart, sensible solutions that steer clear of policy extremes.
Marijuana may not be as harmful as cocaine or heroin—and marijuana legalization is not equivalent to the legalization of harder drugs—but marijuana is also not the harmless herb touted by many legalization advocates. A better marijuana policy would focus on public health strategies and outcomes, mainly prevention, intervention, treatment, and a wise use of enforcement resources. Investments in prevention and early intervention that get healthcare professionals and others involved in kids’ lives enable us to identify early use before it becomes more harmful chronic use. Some sort of legal sanction should remain in place simply to act as a deterrent and send a social message with the intent of discouraging use—for example, smart criminal penalties grounded in swift, but modest, sanctions. But we can’t afford to rely exclusively on the criminal justice system to address a problem of public health. (Reefer Sanity: Seven Great Myths about Marijuana (2013), p. 164-5)

On the face of it, this is a perfectly reasonable, or at least arguable, position. We can disagree about the extent to which the problems with current policy result from prohibition itself, or instead merely, as Sabet believes, its current overemphasis on law enforcement over education and treatment. So why does this book, and Project SAM generally, annoy me so much? It can’t just be the dodgy statistics disingenuously spun, or the snotty, combative tweets – both sides do that. I think the problem rather lies in what, again, looked for all the world to reformers like the right idea forty years ago: a single-minded emphasis on public health.

Naturally it makes good rhetorical sense for Sabet to present his views as a careful, well-considered middle path between two unacceptable extremes. “Reefer madness” is to be reconstrued not simply as the crude old-school law-enforcement-heavy tactics of the past – as that term is typically used – but instead as the unimaginative dichotomy between that failed policy and, on the other hand, simply throwing up our hands and saying oh well, let’s just legalize everything then. This leaves “reefer sanity” as the moderate middle path. But it soon becomes clear that Reefer Sanity is directed almost entirely at the perceived threat of potential legalization rather than the actual documented harms of current prohibition. It is animated by the same censorious spirit of prohibitionism as that of lock-em-up drug warriors of years past (and present). It is a self-consciously kinder, gentler reefer madness, but in my view a reefer madness all the same.

In practice, this means that once the well of legalization has been well and truly poisoned as resulting from an “all or nothing” false dichotomy, we may turn instead to forms of coercion which are thus established as ipso facto “smart” by comparison. It also happens that all of the “myths” point in the direction of legalization and none of them are held by drug warriors, and the facade of level-headed sanity quickly drops away to reveal the doctrinaire prohibitionism beneath.

Here are the seven “great myths” of Reefer Sanity’s subtitle:

1. Marijuana is harmless and nonaddictive
2. Smoked or eaten marijuana is medicine
3. Countless people are behind bars simply for smoking marijuana
4. The legality of alcohol and tobacco strengthens the case for legal marijuana
5. Legal marijuana will solve the government’s budgetary problems
6. Portugal and Holland provide successful models of legalization
7. Prevention, intervention, and treatment are doomed to fail – so why try?

Myth 1 gets the idea across immediately. That marijuana is “harmless” no one believes, or at least none of the major voices calling for legalization. But whether it is “nonaddictive” will depend on what we mean by that, and may very well be maintained by reformers unimpressed, in the context of technically “addictive” substances like opiates and tobacco, by the oft-repeated stat that 9% of regular marijuana users eventually become “dependent”. So the straw man is carefully set off by the equivocation.

Still, Sabet is right that there is plenty of loose talk from the pro-cannabis side. I really don’t want to hear any of the following ever again:

a) “It’s just a plant”. Yes, and so is belladonna.

b) a quotation from the book of Genesis giving man dominion over the plant world (so cannabis is “God-given” and thus no-one has the right to take it away)

c) DEA administrative judge Francis Young's 1988 finding that marijuana is “one of the safest therapeutically active substances known to man”. This refers generally to the fact that there is no documented lethal dose for marijuana and thus that fatal overdoses are virtually impossible. That’s a point for the pro-cannabis side, but in no way means that marijuana is “safe” in the sense we are talking about.

d) a list of various substances and the number of deaths caused each year (= lots by alcohol and tobacco; none by marijuana). Here too this refers to overdoses in the case of marijuana and every possible manner of decease (including accident and illness) in the other cases. This is clearly question-begging and totally unnecessary, as even the real numbers, whatever they are, speak for themselves.

Myth 2 is similarly carefully qualified in order to come out right. At a minimum, in my view, we should distinguish between “certified as safe and effective medicine by the FDA and thus eligible to be prescribed by doctors and available at pharmacies” and “not so certified, yet appropriate, at the very least while we wait for the FDA to do its thing (which at the moment it seems not to be doing at all, given marijuana’s Schedule 1 status) for doctors to recommend and patients to use if they so desire”. Sabet’s primly by-the-books attitude here echoes the scornful sneers of drug czars at the very idea of “medical marijuana”, prompting speculation among his opponents about Sabet’s possible ties to Big Pharma (none of which I have seen documented, I have to say, so this may just be more loose talk). Interestingly, the DEA just last week rejected yet another petition requesting rescheduling of marijuana from Schedule 1 (reserved for the most dangerous drugs, with “high potential for abuse” and no legitimate medical uses). This is a more complicated issue which we will have to get back to later.

Myth 3 smells like straw as well: note the qualifications (“countless”, “solely”). However, it is indeed true that, thanks to the dogged efforts over the years of reformers like Roffman, many states and localities have decriminalized possession of small amounts of marijuana. Gone (forever, one imagines) are the days when a Hollywood star like Robert Mitchum could be incarcerated for possession of 13 “reefers” (quotation marks in original 1948 newspaper article). Sabet is quite right to suggest that progress of this sort makes legalization less immediately necessary. Yet even as he is officially committed to the public-health model of prohibition, he still seems to regard decriminalization more as a fall-back position or bargaining chip than as an actual desideratum. You’d think that to the extent he regards legalization as a threat, he’d be pushing states to decriminalize in order to relieve that pressure. Hmmm.

Pot-tartsSabet’s discussion of Myth 4 struck me as one of the odder chapters in Reefer Sanity. The “myth” Sabet is combating here is the following inference: “‘Alcohol and tobacco are worse for you, and they are legal,’ goes the reasoning, ‘so pot should be legal too.’” [p. 105] This reasoning is indeed fallacious, or at least incomplete. (A not entirely successful elaboration of that reasoning can be found in Steve Fox et al, Marijuana is Safer: So Why Are We Driving People to Drink?, which we may get to later.) Most attacks on this reasoning dispute the premise that alcohol and tobacco are worse, because, well, um, they’re, you know, normal, and pot is an Illicit Drug that you take to, you know, get high on drugs [segue to talk of gateways to heroin and suchlike]. But Sabet allows that the former are indeed worse, and the numbers of course back this up. The reason they kill so many people, however, according to Sabet, is not that they are inherently worse for you, but instead that they are legal. Here is where the main argument about the dangers of Big Marijuana comes in. If marijuana is legalized, then just as in the cases of the other two drugs, unscrupulous corporations will sacrifice the health of our citizens, especially our children, to their bottom line. (There follows a detailed condemnation … of the tobacco and alcohol industries.)

As noted above, this argument has some plausibility to it, at least to those of us sufficiently skeptical about the morality of large corporations and our limited ability to restrain their misdeeds. While it does seem there has been some small progress on the tobacco front in recent years, the idea that we might avoid that battle by keeping the marijuana genie in the bottle will certainly be attractive from this point of view. Still, to my ear Sabet comes off sounding something like this (in my somewhat hostile, but not thereby inaccurate, paraphrase):

“Prohibition of dangerous substances like alcohol, tobacco, and illicit drugs like marijuana and heroin saves lives, and would therefore be the clearly best option in normal circumstances. The lesson of Prohibition is not that prohibition necessarily fails – after all, alcohol use, and cirrhosis cases, declined during that time [see Myth 7] – but that due to a mere “cultural accident” [p. 116], alcohol use in particular [and, we may assume, tobacco use as well] is too widely accepted for us to get away with prohibiting it. But thanks to the pioneering efforts of a long line of marijuana demonizers from Harry Anslinger through Richard Nixon, Nancy Reagan, and William Bennett, marijuana users remain the despised minority that alcohol users are not, so we can safely impose our views on them by force (for their own good, of course).”

Here we see the blinkered nature of the doctrinaire public-health approach, perhaps surprisingly visible only now, after a few decades of similarly insufferable nanny-state paternalism. Even so, I find I can’t condemn Roffman’s rejection of legalization as a goal in the ’70s, when things looked very different.

Myth 5 is once again overly strongly formulated, leaving us with another straw man to line up with the others. Still, at least this one cuts both ways. I’d put it like this: two distinct arguments for legalization point in different directions. One reason is to undercut the black market for marijuana, the profits of which go to criminal gangs. Another is to get sin-tax revenue from marijuana sales, as we do from alcohol and tobacco. But the first tells us to keep prices low, and the second pushes prices up – not an insuperable obstacle perhaps, but the tension should be noted.

HariAs for Myth 6, it seems more like a red herring than anything else (so, a wash). Holland has indeed legalized marijuana in certain limited ways, without the sky falling; but the USA is a very different country with a very different history, so it's hard to tell what this means. Same with Portugal, and anyway the main concern of Portugal’s drug policy is not the legalization of marijuana but instead the decriminalization of harder drugs. I call this issue a wash because while Sabet is right to suggest that legalizers cannot point to either of these countries and say “see, it works there!”, that’s about it. Sabet throws a few numbers at us to suggest that it’s not working there anyway, but his heart doesn’t seem to be in it. For a good discussion of Portugal, see Johann Hari’s book I discussed last time (Chasing the Scream). Hari is generally positive, but remember also that he is ambivalent about marijuana legalization in particular.

Sabet’s discussion of Myth 7 (almost done!), like Myth 4, concerns the very idea of prohibition and again defends the kinder, gentler public-health version of same. This Myth isn’t a straw man, exactly, but here again we see the nanny state furrowing its brow in earnest concern for our benefit. That drug use is inherently bad and should be discouraged by all appropriate measures, including legal, is prohibitionist ground zero. If they try really hard, as Sabet sometimes does, prohibitionists may grudgingly concede that some users may suffer no ill effects of their illicit drug abuse – they “experiment”, but do not get sucked into the spiral of addiction that traps too many of our youth – and even that this is the more likely outcome. (Even if we accept the idea that one in eleven (9%) users ends up in some way dependent, that leaves ten out of eleven who do not.)

But what you will never hear is that users’ experiences could possibly be in any important way valuable or beneficial. Cannabis cannot have changed your life for the better or in any way enriched it. It either ruined your life (or may still), or, thank goodness, after some ill-advised youthful “experimentation”, you gave it up in time. To admit that valuable drug experience is even conceptually possible threatens the fundamental premise that all drug use is necessarily equivalent to abuse and that we are thus justified in preventing it by force. And that is intolerable.


If the “education” part of the new prohibitionist turn to “education and treatment” is anything like reading Reefer Sanity, then by comparison legalization is actually looking like the saner option at this point. But stay tuned!