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November 24, 2012

"What's next for marijuana laws?"... how about "Give Pot a Chance"

Pot peaceThe title of this post is drawn from the headline of two new effective pieces discussing the state and possible fate of marijuana law and policy in the wake of the marijuana legalization votes in Colorado and Washington earlier this month.  This first piece comes from CBS News, and its provides an astute review of how federal authorities might (or might not) respond to the fact that recreation marijuana use will be legal under state law in two states in just a few weeks.

The second piece at the New York Times' Opinionator site is a lengthy commentary by Timothy Egan, which includes these astute points:

For the first time since prohibition began 75 years ago, recreational marijuana use will be legal; the misery-inducing crusade to lock up thousands of ordinary people has at last been seen, by a majority of voters in [Washington] and in Colorado, for what it is: a monumental failure.

That is, unless the Obama administration steps in with an injunction, as it has threatened to in the past, against common sense. For what stands between ending this absurd front in the dead-ender war on drugs and the status quo is the federal government. It could intervene, citing the supremacy of federal law that still classifies marijuana as a dangerous drug.

But it shouldn’t. Social revolutions in a democracy, especially ones that begin with voters, should not be lightly dismissed. Forget all the lame jokes about Cheetos and Cheech and Chong. In the two-and-a-half weeks since a pair of progressive Western states sent a message that arresting 853,000 people a year for marijuana offenses is an insult to a country built on individual freedom, a whiff of positive, even monumental change is in the air....

But there remains the big question of how President Obama will handle the cannabis spring. So far, he and Attorney General Eric Holder have been silent. I take that as a good sign, and certainly a departure from the hard-line position they took when California voters were considering legalization a few years ago. But if they need additional nudging, here are three reasons to let reason stand:...

In two years through 2011, more than 2,200 serious illnesses, including 33 fatalities, were reported by consumers of nutritional supplements. Federal officials have received reports of 13 deaths and 92 serious medical events from Five Hour Energy. And how many people died of marijuana ingestion? Of course, just because well-marketed, potentially hazardous potions are legal is no argument to bring pot onto retail shelves. But it’s hard to make a case for fairness when one person’s method of relaxation is cause for arrest while another’s lands him on a Monday night football ad....

Washington State officials estimate that taxation and regulation of licensed marijuana retail stores will generate $532 million in new revenue every year. Expand that number nationwide, and then also add into the mix all the wasted billions now spent investigating and prosecuting marijuana cases. With pot out of the black market, states can have a serious discussion about use and abuse.  The model is the campaign against drunk driving, which has made tremendous strides and saved countless lives at a time when alcohol is easier to get than ever before.  Education, without one-sided moralizing, works....

From his years as a community organizer — and a young man whose own recreational drug use could have made him just another number in lockup — Obama knows well that racial minorities are disproportionately jailed for these crimes.  With 5 percent of the world’s population, the United States has 25 percent of its prisoners — and about 500,000 of them are behind bars for drug offenses.  On cost alone — up to $60,000 a year, to taxpayers, per prisoner — this is unsustainable.

Obama is uniquely suited to make the argument for change.  On this issue, he’ll have support from the libertarian right and the humanitarian left.  The question is not the backing — it’s whether the president will have the backbone.

November 24, 2012 at 12:05 PM | Permalink

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Comments

Why has the President been so quiet on this issue? It is time to end the war on marijuana!

p.s
No Bill I am not in favor of legalizing heroin and meth which seems to be one of your most common replies to ending the war on Marijuana.

Posted by: Anon | Nov 24, 2012 1:08:35 PM

Anon --

"No Bill I am not in favor of legalizing heroin and meth..."

Really? Why not? Wouldn't your argument about federalism equally apply?

Isn't it still up to the individual, not the state, to decide what's too dangerous to put into his own body?

Can't we regulate it and tax it and make all those oddles of money?

Couldn't we just restrict criminal law to those instances where the imbiber harms someone other than himself?

What about "individual freedom, a whiff of positive, even monumental change is in the air...."

How 'bout saving all that dough from ending the war on drugS (that's plural, not just pot).

And to think, we'd no longer be making criminals out of all these law-abiding folks whose "method of relaxation" just happens to differ a tad from the old-fashioned, bourgosie practices.

C'mon, Anon. When every one of your arguments supports meth just as much as they do pot, why get shy? Just because you think meth is more dangerous than dope is no reason you should get to impose your conclusions on other people, right? So what's the problem?

How's that?

Don't want to let the country know in one fell swoop what the real goal is?

My goodness. Now why would that be?

Posted by: Bill Otis | Nov 25, 2012 12:38:44 AM

Bill,

The implicit in the arguments deployed against MJ prohibition are a pragmatic, utilitarian social cost evaluations, even though they not expressly spelled out. I think with respect to heroin / crack / meth, prohibition is an appropriate policy. (How strict that should be implemented is another point). But as applied to marijuana (and eventually LSD, psilocybin, and MDMA), those costs are, as an empirical matter, just not there. You are of course free to disagree with that empirical assertion, but it's dishonest to characterize MJ reform advocates as some kind of libertarian absolutists.

Posted by: SashokJD | Nov 25, 2012 3:59:38 AM

SashokJD --

"The implicit in the arguments deployed against MJ prohibition are a pragmatic, utilitarian social cost evaluations, even though they not expressly spelled out."

I take the pro-drug arguments as I find them. Every argument I summarized in my post has been made on this blog numerous times, as you cannot help but have seen.

"You are of course free to disagree with that empirical assertion, but it's dishonest to characterize MJ reform advocates as some kind of libertarian absolutists."

Except when they ARE libertarian absolutists, which also shows up on this blog (and elsewhere) time after time.

I am free to show where the central libertarian argument for dope leads, and will continue to do so. And perhaps you will admit that some of the argument for pot legalization is indeed the stalking horse for much broader legalization. Will you? The reason pot gets trotted out first is that it has broader acceptance with the public than any of the harder drugs, but a stalking horse is still a stalking horse.

Posted by: Bill Otis | Nov 25, 2012 9:22:40 AM

@Bill Otis
You forgot my favorite: 'pot is not substantially more harmful than alcohol or tobacco, so why ban it?'

Here, the distinction is clear as meth and heroin are substantially worse for you than tobacco and alcohol.

Posted by: MikeinCT | Nov 25, 2012 5:24:07 PM

MikeinCT --

My personal favorite is, "We know pot is harmless because it grows in the ground."

You gotta give these guys credit, of a sort.

Posted by: Bill Otis | Nov 25, 2012 5:47:24 PM

Bill and others no one is buying your "Reefer Madness" propaganda!

Posted by: Anon | Nov 25, 2012 6:23:14 PM

@Bill
If it's substantially more harmful than the legal drugs then feel free to explain why.

Posted by: MikeinCT | Nov 25, 2012 6:59:14 PM

Anon --

"Bill and others no one is buying your 'Reefer Madness' propaganda!"

Actually, as polls show, more are opposed to legalization than in favor, see http://www.pollingreport.com/drugs.htm (five of the six most recent polls). So the actual facts show that a majority are not buying your pot-is-wonderful-so-get-your-kid-stoned propaganda.

But for however that may be, I'd be very interested in your answers to the questions I posed to you in the second comment on this thread. Do you have any?

Posted by: Bill Otis | Nov 25, 2012 7:05:53 PM

MikeinCT --

That X is less harmful than Y is, to say the least, an unpersuasive argument to change legal policy in ways that will encourage the use of X.

Posted by: Bill Otis | Nov 25, 2012 7:54:58 PM

Bill:
Your arguments against legalization of mj are remarkably similar to the domino theory espoused by hawks to support war against those from the outside. Here, the war on drugs is against those from within. Today we vacation in Vietnam, Laos and Cambodia. Maybe if weed is legal we can someday vaction in the innercity -- Compton, Detroit etc.

Posted by: ? | Nov 25, 2012 8:59:03 PM

@Bill
If it's not harmful, then what it is your argument for banning it? Just for fun?

Posted by: MikeinCT | Nov 25, 2012 9:28:23 PM

'the argument for pot legalization is indeed the stalking horse for much broader legalization.'

really can you please provide some proof of this hypothesis...and yet more proof of why the GOP is steadily loosing ground due to the lack of critical thinking skills by their remaining supporters - old, moneyed, arrogant grumpy white men who have passed there prime, lost there visions in the 21st century and are waiting to be put to pasture

Posted by: Nate | Nov 25, 2012 11:04:03 PM

@nate

49% percent of voters are "old, moneyed, arrogant grumpy white men who have passed there prime, lost there visions in the 21st century and are waiting to be put to pasture"?

That comment is even more laughable when you consider the fact that most democrats, including the president, appear to favor pot prohibition.

Posted by: MikeinCT | Nov 25, 2012 11:26:40 PM

Nate --

Your racist and sexist comment about white men is duly noted. If a conservative made an analogous comment about black women, he would be called upon to apologize.

Will you?

Posted by: Bill Otis | Nov 26, 2012 12:58:20 AM

MikeinCT --

Smoking pot IS harmful. It is simply less harmful than other, harder drugs, and therefore should be less penalized, which it is. (This is when it's penalized at all).

Posted by: Bill Otis | Nov 26, 2012 1:03:43 AM

? --

"Maybe if weed is legal we can someday vaction in the innercity -- Compton, Detroit etc."

Have a great time!

Posted by: Bill Otis | Nov 26, 2012 1:07:23 AM

@Bill Otis
It appears to be less harmful than legal drugs considering the death toll from cigarette smoking. So why should that stay legal?

Posted by: MikeinCT | Nov 26, 2012 1:16:04 AM

MikeinCT --

A couple of answers. I take society where I find it, having no choice in the matter. On the current state of play, cigarette smoking is legal, although, through various restrictions and a lot of social messaging, very and increasingly discouraged. Its continuing legality is in part because smoking has a long history of acceptance before its health effects became fully known, and is the basis for an industry (tobacco farming) important in a few states.

Pot has little or no history of broad acceptance and no specific economic anchor or importance. Nonetheless, it is only slightly illegal, if you take my meaning. That is, it's de jure illegal but de facto legal, in that (1) it's done at home with virtual impunity, and everyone knows this; and (2) when, on those relatively quite rare (compared to the overall incidence of use) occasions when a pot smoker is caught, the penalties are light -- a small fine mostly, if even that.

In a world starting from scratch, it might be the case that tobacco would be somewhat more restricted than it is, and pot somewhat less restricted. But, as noted, we are not starting from scratch, and I would not jeopardize public health by making pot more readily available than it is now. Nor does the difference in treatment bother me, since I never thought that the Equal Protection Clause applies to substances. Even irrationally different treatment of substances is not a Constitutional violation. All that is required is that Congress have a rational basis for criminalizing X, not that Congress have a rational basis for the rank order in which it deals with X, Y, and Z.

Posted by: Bill Otis | Nov 26, 2012 8:23:05 AM

"Quite rare" includes a large number of people and only "mostly" involves a small fine. It would be more appropriate, especially given the specific harms of the drug (which are not akin to meth or heroin), to not allow things to be so arbitrary, and legalize the substance. Criminalization net does more harm. It might happily not be as bad as it might be, but "it isn't THAT bad" is not a great reason to not address a problem.

As history, marijuana use has ancient roots. It might not have as long of a history in this country but so be it. Consistency and non-arbitrary treatment do have a history in this country and the substance should be treated within those contours here. The same would apply to some new prescription drug or whatnot.

Follow basic principles here is also a conservative thing to do, given the history & how the current situation in effect provides a black market that seems more libertarian than the more conservative sounding "take society where I find it" approach. A more regulatory approach can also promote public health, since that seems to be a goal here (see tobacco comments). To be careful, I don't apply any label to any one person.

Posted by: Joe | Nov 26, 2012 12:17:46 PM

"I take society where I find it, having no choice in the matter. On the current state of play, cigarette smoking is legal, although, through various restrictions and a lot of social messaging, very and increasingly discouraged. Its continuing legality is in part because smoking has a long history of acceptance before its health effects became fully known, and is the basis for an industry (tobacco farming) important in a few states."
Absurd death penalty delays are a fact of recent history, as is parole for murderers. Yet I think we've established you aren't fond of either.

"Pot has little or no history of broad acceptance and no specific economic anchor or importance."
Heroin and opium were quite broadly and legally used in the late 19th and early 20th century. At one point both were sold as cough medicine and ways to quiet children. Regardless, both are and should be illegal because they are so harmful.

And I would argue that any substance used at one point or another by well over half of the population has broad acceptance.

"In a world starting from scratch, it might be the case that tobacco would be somewhat more restricted than it is, and pot somewhat less restricted."
The world changes all the time, refusing to do so when there are valid reasons does us no good.

"I would not jeopardize public health by making pot more readily available than it is now."
What jeopardy? Weight gain and bloodshot eyes?

"Even irrationally different treatment of substances is not a Constitutional violation."
No one is making a constitutional argument. These are ballot initiatives.

"All that is required is that Congress have a rational basis for criminalizing X, not that Congress have a rational basis for the rank order in which it deals with X, Y, and Z."
I've yet to hear a rational basis for prohibition from you.

Posted by: MikeinCT | Nov 26, 2012 4:24:24 PM

MikeinCT --

"Absurd death penalty delays are a fact of recent history, as is parole for murderers. Yet I think we've established you aren't fond of either."

That's because justice for murderers is vastly more important than increasing the opportunities to get stoned.

"I would argue that any substance used at one point or another by well over half of the population has broad acceptance."

I would counter-argue that the better measure of broad acceptance (as opposed to long-ago and often experimental use) is what percentage of the population used pot a half dozen times or more in the last year. I don't know the answer to that question, but I'm quite sure it's far less than half the population.

I would also argue that the better measure of broad acceptance lies in the Oregon vote earlier this month, the defeat of Prop 19 in California two years ago, the continuing federal ban, and polling which almost uniformly shows more people favoring prohibition than legalization.

"The world changes all the time, refusing to do so when there are valid reasons does us no good."

It is my view, and the view of many other people of good faith (a majority, as noted), that the reasons for maintaining the status quo of de facto legalization are better than the reasons supporting a change to de jure legalization.

"No one is making a constitutional argument. These are ballot initiatives."

Actually, many people are making a Constitutional argument, either directly (Raich, Oakland Cannabis Buyers Cooperative) or indirectly (implying that the unequal treatment given pot versus tobacco is a Constitutional violation).

But for however that may be, I have pointed out that the pro-pot results in Colorado and Washington are at the least balanced out by the anti-pot results in Oregon and California. Why do the referenda in the latter states just disappear when this subject is brought up?

"I've yet to hear a rational basis for prohibition from you."

The basis is that smoking pot is, on the whole, harmful. If the government can ban DDT, it can ban pot. Indeed, the government's basis for banning pot is so well established in law that it's not even contested in criminal cases anymore. If you are aware of a single Article III court that has held that Congress lacks a rational basis to criminalize pot use, I'd be happy to see it. In the 18 years I was an AUSA, I never so much as heard of one.


Posted by: Bill Otis | Nov 26, 2012 6:01:58 PM

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