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December 04, 2012 9:36 AM Washington and Colorado Pot Laws and the Mexican Drug Trade

By Mark Kleiman

Keegan Hamilton has a usefully skeptical piece on the Atlantic website challenging claims that cannabis legalization in Washington State and Colorado will dismantle the Mexican drug trafficking organizations.

Overall, the piece is very well done. But the rules of the Bloggers’ Guild require me to pick out the two points where I think Hamilton got it wrong.

First, on the question of what Colorado and Washington voters actually did, the piece makes the same mistake most of the press made and keeps making, both before and after Election Day:

The notion that legalizing marijuana will cripple Mexico’s brutal drug cartels has gained steam in recent years, and finally boiled over last month when Washington and Colorado became the first states to legalize marijuana for recreational use. Adults 21 and over in both states will be allowed to possess up to an ounce of processed pot, reversing a prohibition policy that stood for the better part of a century. It’s unclear whether the federal government will tolerate the repeal, but if legal pot remains the law of the land, it is widely assumed that Mexican drug cartels will be out several billion dollars in annual revenue.

[emphasis added]

The highlighted clause is true, but it tells much less than the whole truth. Just allowing adults to possess pot would complete the process of “decriminalization” of use. “Decrim” replaces criminal with civil penalties; Colorado and Washington have gone further by making the activity flat-out legal (for adults). I’m all for it.

But standing alone, legalizing possession wouldn’t do anything to “cartel” revenues. (“Cartel” is a hideous misnomer, but let it pass for the moment.) The drug traffickers don’t make money possessing pot: they produce and sell it. And those are the activities that Washington and Colorado have legalized.

Nor is there any question whether the federal government will “tolerate the repeal.” States make their own laws, and unmake them. The federal government has no authority to require a state to have a specific criminal law, and cannot force a state to help it enforce federal law. The feds could send DEA agents to arrest individual pot-smokers in Colorado, but the ratio of agents to pot-smokers makes that an exercise in shoveling sand against the tide. So Washington and Colorado cannabis users are now safe from arrest, unless they light up in a national park or a federal courthouse.

What remains in question is whether the feds will tolerate the aboveground taxed and regulated market proposed in the Colorado and Washington laws. The joker in the deck is that Colorado went beyond legalizing possession for personal use and legalized production for (nominally) personal use: up to six plants at a time per household. Again, the federal government could try to bust some individual home-growers, but it couldn’t possibly shut down homegrowing overall, or prevent some of the homegrown material from leaking into commercial channels unless Colorado authorities became enthusiastic partners in that enforcement effort.

The other howler in the Atlantic essay is the claim that “The duty [i.e., cannabis taxes] adds an estimated $500 million to Washington state coffers every year.” That reflects an official estimate of the potential revenues if the feds allow the regulated market to operate and if that legal market displaces the entire illegal market. Not a nickel of that is coming in today. And even on the most generous assumptions, it’s hard to see how the number could go that high: a horseback guess at the total current illegal market in Washington would be on the order of $300 million a year.

Anyway, the whole thing is worth reading. And then, if you’re suffering from an excessively cheerful mood, go ahead and read the comments. The combination of ignorant certainty and vitriol is really quite astounding.

[Cross-posted at The Reality-based Community]

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Mark Kleiman is a professor of public policy at the University of California Los Angeles.
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