Ending the forever war on drugs: 2016 election edition

by Dave Maier

I had not intended to return to the issue of marijuana legalization so soon after my last such post, but this will be my last post before the November election, and there are ballot initiatives about marijuana legalization in no fewer than nine states – four medical marijuana (Arkansas, Montana, Florida, and North Dakota), and five “recreational” (California, Nevada, Arizona, Maine, and Massachusetts) – so here we go again. I won’t give a general argument for or against, but just give a sense of the wide variety of relevant issues. If you live in any of these states, please be sure to read the particular initiative carefully before voting.

IceMarijuana users constitute a small minority of the population, but recent polls have shown consistent majorities in favor of legalization. Not surprisingly, older voters and Republicans are less likely to support it, although not by large margins. More surprising is the opposition to the various legalization initiatives by those otherwise in favor. Why would one want to legalize marijuana but oppose an initiative which does that very thing?

For an answer, let us direct our browsers to noon1.me (“No on [Maine’s ballot proposition] 1”). Again, one might expect a site with that name to argue that it would be horrible to allow our citizens to freely take drugs to get high on drugs, and no doubt there are such sites (for a refresher on prohibitionism, see my previous post). Instead, its focus is mainly on the various regulations involved in, as proponents of the initiative put it, “regulating marijuana like alcohol”. These regulations are necessary, proponents believe, in order to sell the idea to non-users, and indeed the only successful initiatives to date (in Colorado, Washington, Alaska, Oregon, and DC), as well as the various initiatives likely to do well this year, have a whole laundry list of regulations on public use, home growing, DUI limits, possession limits, and so on. This is especially true in California, where the tag line for this year’s effort (“Let’s get it right”) alludes to the apparently overly lax nature of the failed legalization initiative there in 2010.

Here’s what opponents of the Maine initiative don’t like about Proposition 1:

• Seed to Sale Tracking Requirements
• Limited Licensing / Market Capture
• Threats to patient privacy
• Loss of legal outdoor cultivation
• Impact on firearms laws
• Unconstitutional Media Restrictions
• Federal Intervention
• THC OUI Blood Tests
• New Public Use Penalties
• Loss of access to safe medicine
• Penalties for unlicensed manufacture
• Continued felony charges for growing
• No removal of criminal penalties for possession
• Creation of costly new bureaucracy

Noon1I won’t go into all of these things, but as you can see, the common theme is the overly restrictive nature of the proposed regulations. Sometimes such worries can seem parochial or even selfish. An ounce of marijuana is about 28 grams, and unless you’re a fairly heavy user, that’s a lot. So if it’s (still) illegal to possess more than an ounce, why is that such a hardship – especially when compared with the present state of affairs, in which any amount is illegal? Not surprisingly, both supporters and opponents (of this sort) volley charges of “prohibitionist” at each other: the one for preferring to leave prohibition in place, and the other for replacing it with regulations which supposedly amount to prohibition in all but name.

Another theme, especially in Maine but also in California, is the impact the initiative will have on an already established (medical) marijuana industry. A recent legalization initiative in Ohio (recreational; a medical marijuana program was subsequently established there by the legislature) failed when it came off as a money grab, granting growing and marketing licenses only to a few selected investors and shutting everyone else out. At the top of Noon1’s page, over a close-up photo of bright green cannabis leaves, appear the words “Fight Corporate Cannabis”, and much of the following text elaborates the charge that here too, outside money does not have the best interest of Maine’s cannabis industry at heart.

If this simply reflected an aesthetic preference for small-scale “mom-and-pop” operations – as it sometimes does seem to do – then we might group it with the above worries about possession limits of “only” one ounce as a minor gripe. But the claims here are more substantial, e.g. that for current medical users in particular, costs would spike and access would become more difficult. In that context, it is the very idea of “recreational” marijuana which can seem petty and selfish – or indeed more sinister. Here is how the page describes the initiative’s sponsors:

The Campaign to Regulate Marijuana Like Alcohol is funded by the estate of former Progressive Insurance CEO Peter Lewis, along with Silicon Valley investment giant Founders Fund, marijuana monopolist Privateer Holdings, ArcView venture capitalists , billionaire George Soros, Marijuana Policy Project, and the DC New Approach PAC.

Venture capitalists! Billionaires! Public policy organizations! Not a hippie among them – or more to the point, not a local grower or caregiver. Naturally, Noon1 gives us just the one side, and proponents simply deny that the initiative will affect the current medical marijuana regulations at all. As Noon1 admits, “It is not yet known to the fullest extent how the proposed “recreational” bill will affect the medical marijuana growing and distribution regulations in the state of Maine”; but they go on to say that “[s]aying that a bill can be changed after-the-fact is a way to justify passing policy that is not in the public's best interest.” (Here in any case is the opposing (that is, the supporting) website, RegulateMaine.org.)

We’ll have to leave the evaluation of these positions to the Mainers themselves (and the Californians et al). For now I would just say that if you prefer legalization to prohibition but are unhappy with the degree and kind of regulation in a certain initiative, it is probably pointless to vote it down and hope for a less restrictive one later on. After all, if for example California’s Proposition 64 is defeated, the takeaway won’t be that it was too restrictive; instead, prohibitionists (that is, actual ones, like Kevin Sabet) will exult that “Today California sent a strong message to those who would endanger our nation's children by surrendering in the fight against the scourge of illicit drug abuse [and so on]”. Of course that will be a lie; but that’s how it will play to everyone who hasn’t been following the blow by blow about the initiative and the question of whether its regulatory scheme is too restrictive. Indeed, California Lieutenant Governor Gavin Newsom, the only state official to endorse it, warned that its defeat could set the legalization movement back ten years.

On the other hand, if you are a medical marijuana patient and you prefer things as they are now to the way they would be if the initiative is passed, and you have no reason to prefer a less restrictive recreational initiative in the indeterminate future to how things are now, then it will be a hard sell to ask you to vote for it anyway.


FoxLet’s move on. Not surprisingly, proponents of legalization initiatives focus less on fellow legalizers worried about excessive regulation and more on the general population. In this context, regulation is a good thing, and helps to combat years of prohibitionist propaganda about the dangers of legalization. But legalizers don’t simply play defense. Consider (as the book in question blares above its title) “the message that made marijuana legal in Colorado!”, i.e. (as its title reveals) Marijuana is Safer (subtitle: “so why are we driving people to drink?”), by Steve Fox, Paul Armentaro, and Mason Tvert (hereinafter just Fox). This is a somewhat frustrating book, as it seems not to be able to decide whether it is a sober analysis (as its tone often suggests) or instead a handbook of legalization strategy (as in the section called “Arm Yourself with Simple Responses to Common Antimarijuana Assertions”: “When someone says [______], you reply ‘_______’”).

Fox's basic point is simple and powerful. We have been conditioned by decades of drug-war propaganda, on the one side, and alcohol industry advertising, on the other, to think of drinking as normal conviviality and pot-smoking as deviant and dangerous. But the numbers don’t lie. Alcohol is toxic in ways that marijuana is not, and kills many thousands of people each year, while alcohol addiction ruins the lives of both addicts and people around them. Alcohol increases aggression and lowers inhibition, and makes you a terrible driver even as it drives your willingness to risk its dangers ever higher. The only reason it’s not prohibited is that we tried that once and the results were wildly counterproductive: it lessened alcohol use somewhat, at the price of pushing it underground and fueling a deadly rise in organized crime; while the reason that marijuana is prohibited is its historical association with minorities and deviants such as jazz musicians.

In contrast, marijuana is indeed, if counterintuitively, safer in many ways. Here is the peroration of Fox’s book:

When marijuana is legal, an abusive husband or boyfriend somewhere in America will realize that he is better able to control his temper when he ingests pot instead of alcohol and will cut down on the Budweiser and switch to the kinder bud. Some college student we will never hear about will choose to use marijuana one night instead of joining his fraternity brothers in a drinking contest—thus avoiding a potentially tragic trip to the hospital that was otherwise fated to happen. When marijuana is legal, a man well on his way to chronic and eventually fatal liver disease will conclude that he wants to live a longer and healthier life and will voluntarily give up booze in favor of pot. A young woman will decide to smoke cannabis and watch a movie one evening instead of going out drinking with her girlfriends, unknowingly missing a sexual assault that would have occurred after she had had consumed one gin and tonic too many. By the very nature of introducing the less harmful recreational substance, marijuana, into the stream of commerce, probability dictates that these things will happen. Not just once, but hundreds and thousands of times. When marijuana is legal, we will, collectively, be safer. [182]

This is certainly plausible, although one might wonder about the easy equivalence of booze and pot Fox relies on here – not because pot is indeed worse, as drug warriors have claimed, but instead because they have rather different effects. That one’s drug of choice is one or the other does not depend simply on their legality or availability, but instead on whether one enjoys it or not. Quitting drinking is admirable, but it's not clear that a habitual drinker would be significantly more likely to do so if marijuana is (not simply widely available but also) legal. On the other hand, when one is settling on one's preferred intoxicant in the first place, the deck does presently seem to be stacked against the safer substance.

Also, in presenting alcohol and marijuana as functionally interchangeable ways to obtain a pleasant buzz, Fox seems to me a bit disingenuous in seeming to deny that in larger doses, THC is a powerfully psychoactive drug. This is one reason why some people prefer alcohol, regardless of legality: they aren’t interested in cosmic insight or meeting Aztec deities; they just want to get drunk. It also reintroduces the idea of marijuana’s own characteristic, if less life-threatening, dangers, which Fox’s argument needs to downplay. On the other hand, discussing them would underline that very difference: while we need merely point to actuarial tables of alcohol morbidity, on the other side of the ledger there was, let's see, that one guy in Colorado who took too much edible cannabis and fell off the roof.

Also, as prohibitionists breathlessly report, when Colorado legalized marijuana in 2012, there was a *150%* increase in child admissions to emergency rooms for edible marijuana overdoses! Rather than limiting the argument to comparisons with alcohol, one should simply point out that this increase turns out to have been from 4 to 10; and that while no one wants little Sally to get sick from finding and eating too much of Mommy’s special candy, that sounds like an argument not for screaming headlines and ham-handed prohibition, but instead for something like warning labels – as most proposed regulatory schemes do indeed require.

In one chapter, Fox does address, reasonably adequately, a number of prohibitionist claims. In fact, in one case he almost needn’t have bothered. We were all taught in health class that marijuana is a “gateway drug”. In its most extreme forms, the idea was that once the joint is passed to you and you succumb to peer pressure to take that first hit, you pass over a crucial threshold into “the drug culture,” such that it is more or less inevitable that unless you “go straight,” you will end up in the gutter with a needle in your arm. However, both the current Attorney General, and, more to the point, the DEA itself has quietly disengaged from this claim, which turns out simply to be empirically false: most marijuana users, believe it or not, prefer marijuana to other drugs, and therefore do not take them.

One final issue I will discuss is that of driving while intoxicated. It is easy to imagine, and easy for prohibitionists to evoke, a free-for-all on the state’s highways, with stoned drivers giggling maniacally while weaving in and out of their lanes, and naturally no one wants that. As a result, legalization initiatives generally include harsh penalties for DUI – but unlike alcohol, marijuana's effects on driving are as yet poorly understood, let alone easily quantified. Also, marijuana can remain in the bloodstream for weeks, long after any intoxication has worn off. Prohibitionists have seized on this worry, and ignored these facts, to demand absurdly low legal blood-level limits for THC, which conveniently amounts to de facto prohibition for anyone intending to drive within a month after using marijuana – and, as opponents note, would-be legalizers have in some cases gone along with them.

Naturally we need more research, but barring that, here's some interesting anecdotal evidence (blog post here, video below).

Note that by the time they were actually impaired, even mildly, each driver (unlike drunk drivers!) agreed that this was the case and that they would not actually drive in that condition. Still, I have seen some people claim that they are actually better drivers when they are high. I wouldn't know, as I have never driven under the influence of any substance. But here's why I would never try it. The other day I was waiting to turn left at an intersection. An oncoming car in the left lane had his left signal on, suggesting that he was going to turn left as well, and thus that I could turn. I was about to do so when I noticed that the driver was going a bit fast to make the turn – and that in fact he wasn't turning at all, but instead had not yet turned his left signal off after having changed into the left lane. As he zoomed by me, I was relieved that I had not disastrously misread his intentions – which I might very well have done if I had been even a little bit stoned. Driving around cones on a closed course is not at all the same as actual driving in traffic.

So yes, blood-level limits, like blanket prohibition, are unacceptably blunt instruments; but whether this renders any particular legalization initiative similarly unacceptable to the voters we will have to wait until November to discover.