« As scripted in plea deal, Peter Madoff gets 10 years for his role in Ponzi scheme | Main | "Military Veterans, Culpability, and Blame" »

December 21, 2012

"Marijuana, Not Yet Legal for Californians, Might as Well Be"

The title of this post is the headline of this new New York Times article, which gets started this way:

Let Colorado and Washington be the marijuana trailblazers.  Let them struggle with the messy details of what it means to actually legalize the drug.  Marijuana is, as a practical matter, already legal in much of California.

No matter that its recreational use remains technically against the law.  Marijuana has, in many parts of this state, become the equivalent of a beer in a paper bag on the streets of Greenwich Village.  It is losing whatever stigma it ever had and still has in many parts of the country, including New York City, where the kind of open marijuana use that is common here would attract the attention of any passing law officer.

“It’s shocking, from my perspective, the number of people that we all know who are recreational marijuana users,” said Gavin Newsom, the lieutenant governor.  “These are incredibly upstanding citizens: Leaders in our community, and exceptional people. Increasingly, people are willing to share how they use it and not be ashamed of it.”

Marijuana can be smelled in suburban backyards in neighborhoods from Hollywood to Topanga Canyon as dusk falls — what in other places is known as the cocktail hour — often wafting in from three sides.  In some homes in Beverly Hills and San Francisco, it is offered at the start of a dinner party with the customary ease of a host offering a chilled Bombay Sapphire martini.

Lighting up a cigarette (the tobacco kind) can get you booted from many venues in this rigorously antitobacco state.  But no one seemed to mind as marijuana smoke filled the air at an outdoor concert at the Hollywood Bowl in September or even in the much more intimate, enclosed atmosphere of the Troubadour in West Hollywood during a Mountain Goats concert last week.

Arnold Schwarzenegger, the former Republican governor, ticked off the acceptance of open marijuana smoking in a list of reasons he thought Venice was such a wonderful place for his morning bicycle rides.  With so many people smoking in so many places, he said in an interview this year, there was no reason to light up one’s own joint.  “You just inhale, and you live off everyone else,” said Mr. Schwarzenegger, who as governor signed a law decriminalizing possession of small amounts of marijuana.

This article makes me especially interested to hear from those who oppose on-going pot prohibition reform efforts concerning whether they would prefer to reform-minded states commit to de jure legalization as in Colorado and Washington now or only to de facto legalization as in California (and others states?).

December 21, 2012 at 09:09 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2017c34d9cdbc970b

Listed below are links to weblogs that reference "Marijuana, Not Yet Legal for Californians, Might as Well Be":

Comments

"Lighting up a cigarette (the tobacco kind) can get you booted from many venues in this rigorously antitobacco state. But no one seemed to mind as marijuana smoke filled the air at an outdoor concert at the Hollywood Bowl"

I am for legalization, but this is the part that I don't understand. Why the double standard? Effing hypocrites.

Posted by: Jardinero1 | Dec 21, 2012 9:25:23 AM

Maybe I should have gone into journalism. I've been saying for years what the Gray Lady seems just to have discovered: That simple possession of pot for personal comsumption is de facto legal.

What this means, among other things, is that the Colorado and Washington referenda are anything but the Heralding of the Revolution. They are an acknowledgement of the status quo ante. Revolutions ought, at the minimum, mean a big change in behavior, not a continuation of the behavior that's been going on for years.

I'm amazed it's taken the Times this long to find out. I went to law school in the Bay Area more than 30 years ago, and it was obvious then and there. Maybe someone should tell the Times that the Vietnam War is over, too.

Posted by: Bill Otis | Dec 21, 2012 9:27:16 AM

I think the NY Times is saying the same thing you are saying with a different conclusion.

Times: The law is not being enforced - why do we need the law?
Bill: The law is not being enforced - we still need the law.

Posted by: beth | Dec 21, 2012 11:52:02 AM

beth --

I think the practical outcome for the Times and for me is the same: The law is not being enforced, so what's the big deal?

This country has plenty of problems. User-amount pot enforcement vel non is not one of them.

Posted by: Bill Otis | Dec 21, 2012 12:33:57 PM

"This article makes me especially interested to hear from those who oppose on-going pot prohibition reform efforts..." Makes me interested in going to California.

Posted by: Matt | Dec 21, 2012 12:55:25 PM

Hey Bill, you still have not chimed in on the question I teed up for you and others who seem opposed to a complete end to pot prohibition: do you prefer the de jure approach of Colorado and Washington or the de facto approach in California?

I usually think of you as a "rule of law" guy, so my first instinct was that you prefer the de jure approach as more honest and transparent and lawful/legitimate. But perhaps this is a setting in which you think the de jure approach has more negative consequences that a de facto one despite the hit on the rule of law in California.

Please understand that I ask this question in good faith not in an effort to provoke you, but rather to assess the relative importance of various values in this context.

To provide a parallel with another drug, I think we all would likely agree that simple possession (indoors) of alcohol for personal comsumption by persons under 21 is de facto legal on nearly all college campuses, but I doubt I would favor a de jure rule that alcohol be fully legal to drink at any age on college campuses. (My prime concern here would be that special marketing to college kids by the alcohol industry seem likely to me to make the problem of binge drinking at college even worse than it already is.) I could readily see an argument that tolerates (and even supports) de facto, but not de jure, marijuana legalization because of fear of how an open marketplace might aggravate the potential harms of pot more than the current gray/black. (And, of course, supporters of de jure legalization flip this argument around by asserting that the varied harms of the current black market in pot is worse than any that would flow from an open and regulated marketplace).

Posted by: Doug B. | Dec 21, 2012 2:24:21 PM

Doug --

"Hey Bill, you still have not chimed in on the question I teed up for you and others who seem opposed to a complete end to pot prohibition: do you prefer the de jure approach of Colorado and Washington or the de facto approach in California?"

Neither, really. I prefer the approach we adopted at DEA while I was Counselor to the Administrator several years ago, and that seems to be still in place under Obama. That approach is to continue the policies adopted by a heavily Democratic Congress when it enacted the CSA (do you love my bipartisanship?). Back then, and today, pot is de jure illegal but de facto legal, in the sense that your chances of winding up in federal incarceration for user-only amounts are essentially zip.

My position is set forth more fully here: http://www.crimeandconsequences.com/crimblog/2012/12/well-that-didnt-take-long.html

P.S. I'm glad to see you're not provoking me by, for example, suggesting that I oppose de jure legalization of pot because I "dislike" the people who do pot.

One of the more amusing aspects of that suggestion was that I don't know who the "people who do pot" ARE. They're most conspicuously college kids, I guess. I had not previously known that I'm against college kids, but, as I've often said, you find out something new on this blog every day.

Because I don't know who they are, I had to look it up in the USSC tables. It turns out that that both blacks and whites are underrepresented in the population of federal pot defendants. About two-thirds of such defendants are Hispanic. If I'm biased against Hispanics, someone needs to tell me so I can go out and start discriminating.

I am a "rule of law guy" as opposed to a "do whatever you like guy," you bet. But I also live in the real world, in which I deal with the landscape as I find it, resources are not infinite, and enforcement choices have to be made. This puts me in league with the rest of the human race.

Posted by: Bill Otis | Dec 21, 2012 3:50:12 PM

In order to maintain respect for the law, it would seem to me that it should be de jure legal and regulated like alcohol. It could then be illegal for anyone under the age of 21 etc. We could then save billions, collect taxes, remove illegal profits and have more respect for law.

Posted by: beth | Dec 21, 2012 6:08:06 PM

Bill: the main reason I made that (admittedly provocative and poorly wordy) suggestion concerning your views on pot users is because I cannot otherwise fully understand make sense of why --- given the oft-stated smaller-government, anti-nanny-state, pro-freedom principles I have heard you and other conservatives stress in various settings --- you and many others oppose de jure legalization of marijuana but do not advocate/support criminalization of alcohol, tobacco, refined sugar and lots of other substantances that might do a lot more harm than good for people to use/abuse.

That all said, I should have been much more refined in my point and not made it so personal, so let me try again: I sometimes surmise that some opponents of pot legalization appear to have a general disaffinity for the pleasure certain people get from responsible pot use, and in turn do not think that this particular kind of pleasure/freedom is sufficient to justify the various social harms that pot misuse may cause. I would make the same kind of point about those who favor strict gun control: I surmise that many who want to prohibit some or all guns have a general disaffinity for the pleasure certain people get from responsible gun use, and in turn do not think that this particular kind of pleasure/freedom is sufficient to justify the various social harms that gun misuse may cause.

Another way to make this point --- which may be really just my own projection of what I see/feel in many prohibition debates --- is that I do not think differing moral visions as much as different consequentialist calculations drive competing positions. I doubt you view marijuana as a plant so inherently wicked that you think its very existance is a cosmic wrong (maybe I am wrong here); I likewise doubt that gun control proponents view any firearm as inherently wicked. Rather, I see most/all who support prohibition of one or ther other (or both) as coming to their own (disputable) conclusions as to how the pros/cons of letting people use these objects play out in modern society.

Please accept my apology if my prior way of articulating this (not so profound) point was misguided and hurtful. That was neither my intent nor desire. Rather, I just continue to be puzzled by just why conservative rhetoric in other arenas typically does not continue its libertarian inclinations when the subject turns to marijuana. And I will continue to be exploring these ideas in the weeks and months ahead.

Posted by: Doug B. | Dec 21, 2012 6:30:33 PM

Doug --

None of us gets to remake the world from scratch. In the world that exists, cigarettes and booze are kind of legal (except they're illegal for a big portion of the potential market) and smoking pot is kind of illegal (except that it gets done all the time with precious little legal consequence).

The question is not how, if we could re-make the world, I would change this. The only sensible question is what PRESENT CHANGES are both (1) on the whole desirable and (2) realistically possible.

The answer is little or none. Smoking is a really bad thing and so is drinking. They can be easily habit forming, and when the habit is formed, the excess can kill you (and they kill lots of people). But banning them outright and in toto is impossible, as everyone knows, so I don't waste time thinking about it, any more than I waste time thinking about any other impossible stuff. Life is too short.

Pot is also bad for you. Like any other smoking, it's no good for your health. And the easier it is to get pot, the more is going to get used. The more that gets used, the more adverse effects from it will show up -- in hospitals and in the morgue (impaired driving). I am therefore against making it more available by lowering the costs and risks of obtaining it, which is what de jure legalization would do.

Adult life in this counytry entails the acceptance of ideological impurity and the messy compromises democracy requires in order for us to live together. When I was in high school, legalization looked good to me. I'm no longer in high school.

No apology is necessary (everyone occasionally overcooks something or other), but just for the record, of course I accept. Again, I am grateful for the enormous amount of work you do putting the blog together and making it available to a wide variety of viewpoints.

Posted by: Bill Otis | Dec 21, 2012 7:36:06 PM

"more refined in my point and not made it so personal"

This is the comment stream of SLP, yes? I thought being not refined and personal is the rule here or something. I'm being a bit specious, but really, striking. Bill Otis, who knows Doug, graciously responds.

Since "true" criminalization is impossible and all it remains the belief of some that even if someone thinks the substance is dangerous, if anything more so, that the de facto legalization system is messed up. In effect, some small, often arbitrary number will suffer health effects from adulterated drugs (since we are all accepting of imperfection, imperfect line drawing to marijuana is okay, even if libertarian ideals could apply this to heroin), police action or so forth.

Bill Otis repeatedly ridicules the few number of marijuana users caught up in the criminal justice system. But, that is only a relative thing given the great number of users. In raw numbers, we are not talking trivialities here. In raw numbers, thousands, and not evenly distributed by race or class, are caught in the criminal justice system for using pot. I don't see the health value in this occurring overall. Net, it probably worsens public health.

This is what the author of the blog is saying and noting pot is bad doesn't change that. Many legal things are bad. Criminalization, however, is worse in various respects. It might be worth it -- might be -- if it actually net did something. But, Bill ridicules the true "criminality" (I think a bit too much given some are caught up). So, what's the point?

The disrespect of the law and negative health effects from unregulated (contra to Bill's comments, medicinal marijuana has been regulated in various states that have it and attempts to set up regulations in fact led to letters from the feds warning about federal law ... underlining the effort was made) is a quite anti-conservative path to take on some level. This might be why some conservatives are wary about criminalization of marijuana, down to the guy at the 700 Club.

Posted by: Joe | Dec 22, 2012 10:57:15 AM

hmm

"beth --

I think the practical outcome for the Times and for me is the same: The law is not being enforced, so what's the big deal?

This country has plenty of problems. User-amount pot enforcement vel non is not one of them."

Well bill i think what the times is trying to say is it's long long past time our govt learned a lesson anyone in military learned a few thousand years ago

"Never give an order you know won't be obeyed!"

If you have a law that is pretty much Never obeyed! it's long past time to toss it. The Public has spoken!

Posted by: rodsmith | Dec 22, 2012 12:43:16 PM

Student,
I think the practical outcome for the Times and for me is the same: The law is not being enforced, so what's the big deal?

This country has plenty of problems. User-amount pot enforcement vel non is not one of them.

Posted by: Juna | Dec 22, 2012 2:39:50 PM

Government boys like Bill Otis prefer to have government, rather than individuals, make decisions about what individuals can put in their bodies.

They have it backwards.

Posted by: Vladamir Petsuk | Dec 22, 2012 3:28:16 PM

Vladimir --

You are therefore for the legalization of heroin, meth, LSD, crack, Ecstasy, and the rest of them, is that correct? I mean, you wouldn't want the government making decisions about what a person puts into his own body, would you?

Posted by: Bill Otis | Dec 22, 2012 4:13:55 PM

Ecstasy is great.

Posted by: Dick Cheney | Dec 22, 2012 6:14:16 PM

Well bill you could say that if someone wants to hurt or kill themselves ...so be it! As long as they don't hurt or kill others on the way or comit a Real crime to get there.

Posted by: rodsmith | Dec 23, 2012 12:29:12 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB