How to Legalize Pot
ByBILL KELLER
May 19, 2013
THE first time I talked to Mark Kleiman, a drug policy expert at U.C.L.A., was in 2002, and he explained why legalization of marijuana was a bad idea. Sure, he said, the government should remove penalties for possession, use and cultivation of small amounts. He did not favor making outlaws of people for enjoying a drug that is less injurious than alcohol or tobacco. But he worried that a robust commercial marketplace would inevitably lead to much more consumption. You don’t have to be a prohibitionist to recognize that pot, especially in adolescents and very heavy users, can seriously mess with your brain.
So I was interested to learn, 11 years later, that Kleiman is leading the team hired to advise Washington State as it designs something the modern world has never seen: a fully legal commercial market in cannabis. Washington is one of the first two states (Colorado is the other) to legalize the production, sale and consumption of marijuana as a recreational drug for consumers 21 and over. The marijuana debate has entered a new stage. Today the most interesting and important question is no longerwhethermarijuana will be legalized — eventually, bit by bit, it will be — buthow.
“At some point you have to say, a law that people don’t obey is a bad law,” Kleiman told me when I asked how his views had evolved. He has not come to believe marijuana is harmless, but he suspects that the best hope of minimizing its harm may be a well-regulated market.
Ah, but what does that look like? A few places, like the Netherlands, have had limited legalization; many jurisdictions have decriminalized personal use; and 18 states in this country have approved the drug for medical use. (Twelve others, including New York, are considering it.) But Washington and Colorado have set out to invent a whole industry from scratch and, in theory, to avoid the shortcomings of other markets in legal vices — tobacco, alcohol, gambling — that lurched into being without much forethought, and have supplied, along with much pleasure, much misery.
The biggest shadow hanging over this project is the Department of Justice. Federal law still makes felons of anyone who trades in cannabis. Despite the tolerant drift of the polls, despiteevidenceindicating that states with medical marijuana programs have not, as opponents feared, experienced an increase in use by teenagers, despite newmovestoward legalization in Latin America, no one expects Congress to remove cannabis from the list of criminal substances any time soon. (“Not until the second Hillary Clinton administration,” Kleiman says.) But federal authorities have always left a lot of room for local discretion on marijuana enforcement. They could, for example, declare that they will prosecute only drug producers who grow more than a certain amount, and those who traffic across state lines. Attorney General Eric Holder, perhaps preoccupied with scandal management, has been slow to come up with enforcement guidelines that could give the states a comfort zone in which to experiment.
One practical challenge facing the legalization pioneers is how to keep the marijuana market from being swallowed by a few big profiteers — the pot equivalent of Big Tobacco, or even the actual tobacco industry — a powerful oligopoly with every incentive to turn us into a nation of stoners. There is nothing inherently evil about the profit motive, but there is evidence that pot dealers, like purveyors of alcohol, get the bulk of their profit from those who use the product to excess. “When you get a for-profit producer or distributor industry going, their incentives are to increase sales,” said Jonathan Caulkins of Carnegie Mellon, another member of the Washington consulting team. “And the vast majority of sales go to people who are daily or near-daily consumers.”
What Kleiman and his colleagues (speaking for themselves, not Washington State) imagine as the likely best model is something resembling the wine industry — a fragmented market, many producers, none dominant. This could be done by limiting the size of licensed purveyors. It would help, too, to let individuals grow a few plants at home — something Colorado’s new law permits but Washington’s does not, because polling showed Washingtonians didn’t want that.
If you read theproposalKleiman’s team submitted to Washington State, you may be a little boggled by the complexities of turning an illicit herb into a regulated, safe, consumer-friendly business. Among the things on the to-do list: certifying labs to test for potency and contamination. (Pot can contain, among other nasty things, pesticides, molds and salmonella.) Devising rules on labeling, so users know what they’re getting. Hiring inspectors, to make sure the sellers comply. Establishing limits on advertising, because you don’t want allowing to become promoting. And all these rules must account not just for smoking but for pot pastries, pot candies, pot-infused beverages, pot lozenges, pot ice cream, pot vapor inhalers.
One of the selling points of legalization is that states can take a cut of what will be, according toestimates, a $35 billion to $45 billion industry and earmark some of these new tax revenues for good causes. It’s the same tactic used to win public approval of lotteries — and with the same danger: that some worthy government function comes to depend on creating more addicts. And how do you divvy up the revenues? How much goes to offset health consequences? How much goes to enforcement? How do you calibrate taxes so the price of pot is high enough to discourage excessive use, but not so high that a cheap black market arises? All this regulating is almost enough to take the fun out of drugs.
And then there is the issue of drugged driving. Much about the chemistry of marijuana in human beings remains uncertain, in part because the government has not supported much research. So no one has come up with a pot version of the breathalyzer to determine quickly whether a driver is impaired. In the absence of solid research, some legalization advocates insist stoned drivers are more cautious, and thus safer. (Hands up if you want Harold and Kumar driving your taxi. Or piloting your airplane.) On this and much else, Washington and Colorado will probably be making it up as they go, waiting for science to catch up.
And experience tells us they are sure to get some things wrong. New York decriminalized possession of small amounts of pot way back in 1977, with the condition that there be no “public display.” The lawmakers meant to assure that you partied at home, not in the parks or on the sidewalks. They did not envision that this provision would create a pretext for throwing young black and Latino men in jail. When police in New York City stop and frisk, which they do a lot in rougher neighborhoods, they order their targets to turn out their pockets and — whoa, public display, come with us, son! Gov. Andrew Cuomo is promoting an amendment to curb that abuse of power.
On the opposite coast, California demonstrates a different kind of unintended consequences. The state’s medical marijuana law is such a free-for-all that in Los Angeles there are now said to be more pot dispensaries than Starbucks outlets. Even advocates of full legalization say things have gotten out of hand.
“It’s a bit of a farce when you can watch people come out of a dispensary, go around the corner and resell their drugs,” said Gavin Newsom, the lieutenant governor and former San Francisco mayor, who favors legalization. “If we can’t get our medical marijuana house in order, how do we expect voters to deal with legalization?” He is now part of a group discussing how to impose more order on California’s medical marijuana market, with an eye to offering broader legalization in 2016. And, he told me, his state will be paying close attention to Washington and Colorado, hoping somebody can, as Mark Kleiman puts it, “design a system that gets us to ‘orderly’ without getting us to ‘way too stoned.’”
Whites and Blacks Use Marijuana at Similar Rates. Blacks Are Almost Four Times Likelier to Be Arrested for It.
ByJustin Peters Tuesday, June 4, 2013
A new report from the ACLU finds that blacks are arrested for marijuana possession 3.73 times more often than whites nationwide, even though the rate of marijuana use is relatively similar across races. The report, “The War on Marijuana in Black and White,” was released this morning; it claims to be the first comprehensive attempt to examine marijuana possession arrest rates, by race and by state, from 2001 to 2010. Its findings are further evidence that the “war on marijuana” is expensive, inefficient, and racially biased—and that it probably won’t be ending anytime soon.
The recent decriminalization of marijuana possession for personal use in Colorado and Washington state might seem to indicate that national attitudes toward the drug are liberalizing. But the ACLU report shows that Colorado and Washington are the exception, not the rule:
The report finds that between 2001 and 2010, there were over 8 million marijuana arrests in the United States, 88% of which were for possession. Marijuana arrests have increased between 2001 and 2010 and now account for over half (52%) of all drug arrests in the United States, and marijuana possession arrests account for nearly half (46%) of all drug arrests. In 2010, there was one marijuana arrest every 37 seconds, and states spent combined over $3.6 billion enforcing marijuana possession laws.
But minorities, overwhelmingly, are the ones being arrested: “In 2010, the Black arrest rate for marijuana possession was 716 per 100,000, while the white arrest rate was 192 per 100,000. Stated another way, a Black person was 3.73 times more likely to be arrested for marijuana possession than a white person—a disparity that increased 32.7% between 2001 and 2010.”
After reading through the report, it’s not hard to understand why this is happening. In general, cops tend to focus their attention on neighborhoods with high rates of crime. Those neighborhoods tend to be populated by members of low-income minority groups. Cops patrolling those neighborhoods are often empowered to stop and frisk residents on the slimmest of pretexts, and, because of that, they are likelier to find people who are carrying marijuana. So, in order to bring the crime rate down, they will arrest people on these marijuana possession charges, which helps foster the impression that poor neighborhoods have high rates of crime. It’s a stupid, self-perpetuating cycle.
You can blame a lot of this on the controversial“broken windows” theory of policing, which essentially maintains that minor violations beget major ones, and that you can combat violent crime by rigorously enforcing small quality-of-life offenses. You can also blame data-driven police initiatives likeCOMPSTAT, which meticulously track crime statistics on a precinct-by-precinct basis. In theory, programs like COMPSTAT are supposed to promote accountability, and a more precise deployment of police resources. In practice, they put cops under tremendous pressure to show continuous improvement in their precincts, and, as such, condone arrest quotas, stop-and-frisk policies, and other tactics that look good on the stat sheets even as they wreck neighborhoods.
But you can also blame the federal government. While the current federal drug czar, Gil Kerlikowske, has spoken about the needto treat marijuana use as a public health matter rather than a strictly criminal one, others in the federal government aren’t nearly as progressive. The ACLU report talks about a federal program called theByrne Justice Assistance Grant, which doles out funding to police departments in large part based on the number of drug arrests they make. With municipal budgets strapped, police departments depend on these sorts of federal grants. The “public health” approach to marijuana will never be viable as long as JAG funding and similar programs are essential to departments’ survival.
The ACLU report shouldn’t really come as news to anyone who has been paying attention to federal drug policy over the past 30 years. But it’s still a valuable reminder that, though liberalization advocates have seen a series of victories in Colorado, Washington, and elsewhere, the war on drugs is far, far, far from over. Read the whole reporthere.
How to Regulate, and How Not To
Mark A.R. Kleimanis a professor of public policy at U.C.L.A. and a visiting fellow at theNational Institute of Justice. He is advising Washington State on marijuana regulation.
UPDATEDMAY 23, 2013, 1:10 PM
There are four crucial steps for voters and lawmakers to take:
Require testing and labeling for chemical content.Telling consumers precisely what they’re taking will reduce some of the risks. THC is the substance that gives marijuana its intoxicating power, but other chemicals also matter. For instance, cannabidiol (CBD) can help to temper potency by protecting users from anxiety and panic attacks.
Require testing for microbes, pesticides and heavy metals.Legal marijuana could be made safer than the illegal product by keeping it free of contaminants.
Keep the price right.If the legal price is too high, the illegal market will remain. If the legal price is too low, there will be increased drug abuse and perhaps exports across state lines. Taxation needs to be adjusted accordingly.
Monitor, measure and modify.A regulated commercial market in marijuana is a new thing. There’s much to be learned. It’s vital to monitor the process, measure the results and modify the rules (including tax rates) as needed.