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January 06, 2014 9:55 PM Cannabis Legalization: Compared to What?

By Mark Kleiman

David Brooks and Ruth Marcus both have anti-cannabis legalization essays up. Brooks doesn’t mention 650,000 arrests a year, 40,000 people behind bars at any one time, or $35 billion in annual illicit income. Brooks does mention the issue of personal liberty, but immediately bats it away: apparently the liberty to do what Brooks disapproves of isn’t really valuable. Marcus mentions that pot-possession arrests are a bad idea but doesn’t say anything about how to reduce them; she just dances gaily on, wishing that the bad consequences of legalization could be avoided. Both Brooks and Marcus seriously overstate the evidence about the damage done by cannabis by flipping back and forth between studies of heavy, chronic ue and conclusions simply about “use.” But they’re right to say that cannabis use is bad for some people, and that the number of people harmed by pot is likely to go up when it’s legally sold.

At the same time Bruce Bartlett writes in favor of legalization without ever mentioning drug abuse. He invokes something he calls “economics.” I take it that he uses “economics” to mean the principle of revealed preference, which asserts that whatever a person chooses is what that person wants, and that getting what you want is, by definition, beneficial. He asserts that he is “not aware of a single economic analysis” coming down against legalization, without giving any evidence of having looked.

Well, guess what? If you ignore the benefits of legalization, it looks like a pretty bad idea. If you ignore the costs, it looks like a pretty good idea.

And of course since Brooks, Marcus, and Bartlett all are engaging in the middle- school version of policy analysis that simply ignores countervailing arguments and blows past the compared-to-what question, none of them has to wrestle with the hard questions:

* If cannabis remains illegal, how should those laws be enforced? Whether cannabis use is bad for you is uncertain; that black-market activity, arrest, and incarceration are all bad for you is unquestionable.
* Should cannabis be legal to use, but not to sell? If so, should individuals e allowed to grow for their own use, or should we leave the industry to the criminals?
* If sale is permitted, should it be restricted to not-for-profit cooperatives or to a state agency?
* If commercial sale is permitted, how high should the taxes be? What rules should apply to marketing?
* What information should be provided to consumers by sellers or by public or NGO bodies? If some forms of the drug are more dangerous than others in terms of unintentional overdose or habituation, should the more dangerous versions carry warning labels?
* Should there be a minimum legal age for cannabis purchase and use? If so, how should those laws be enforced? In particular, should underage users be subject to arrest?
* What rules should apply to driving after cannabis use, and what rules of evidence should apply?

I continue to think that continued prohibition may be the worst option under current U.S. circumstances; I’m still waiting for someone who opposes legalization to sketch a reasonable alternative to the status quo. I’m inclined to think that full commercial legalization with minimal marketing restrictions and low taxes - which is where the country is currently headed - might well be the second-worst. But for now the public debate is dominated by those two bad options.

If Brooks and Marcus, and those who share their concerns, want to do some actual good in the world, they need to get down in the trenches and think concretely about policies. Standing athwart history shouting “Stop!” is an undignified posture.

Update Of course Matt Welch is right to criticize Brooks’s equation of a state’s decision not to make some activity a criminal offense with “encouraging” that activity. But equally of course creating a for-profit cannabis industry - which will derive most of its revenue from people who smoke too much - and allowing that industry “commercial free speech” means that the encouraging will go on just the same, even though the state doesn’t do it. In a sane world, it would be possible to allow an activity but forbid its promotion by firms trying to profit from the weaknesses of their consumers; the notion that there’s no middle term between criminalization and allowing aggressive marketing is bizarre on its face.

Welch and his libertarian friends just love “commercial free speech,” a doctrine that exists, as far as I know, only in American law. Lots of places have open political discourse but don’t, for example, let Big Pharma peddle complex medicines directly to sick people. Perversely, this makes it harder to reduce the scope of the criminal law.

[Cross-posted at The Reality-Based Community]

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

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