Some Thoughts on Marijuana

by Reihan Salam

On Thursday, David Brooks published a column on his youthful experiments with marijuana and his support for its continued control:

We now have a couple states — Colorado and Washington — that have gone into the business of effectively encouraging drug use. By making weed legal, they are creating a situation in which the price will drop substantially. One RAND study suggests that prices could plummet by up to 90 percent, before taxes and such. As prices drop and legal fears go away, usage is bound to increase. This is simple economics, and it is confirmed by much research. Colorado and Washington, in other words, are producing more users.

The people who debate these policy changes usually cite the health risks users would face or the tax revenues the state might realize. Many people these days shy away from talk about the moral status of drug use because that would imply that one sort of life you might choose is better than another sort of life.

But, of course, these are the core questions: Laws profoundly mold culture, so what sort of community do we want our laws to nurture? What sort of individuals and behaviors do our governments want to encourage? I’d say that in healthy societies government wants to subtly tip the scale to favor temperate, prudent, self-governing citizenship. In those societies, government subtly encourages the highest pleasures, like enjoying the arts or being in nature, and discourages lesser pleasures, like being stoned.

In legalizing weed, citizens of Colorado are, indeed, enhancing individual freedom. But they are also nurturing a moral ecology in which it is a bit harder to be the sort of person most of us want to be.

The column has prompted an ungenerous and largely uncomprehending response from people who are attacking David as a hypocrite, and worse. But you’ll notice, if you know how to read, that Brooks isn’t endorsing draconian legal penalties for marijuana use. Rather, he is suggesting that legalization as such might not be the best way forward. Though I imagine I don’t agree with Brooks in every respect on this issue, I think his bottom line is correct. The goal of marijuana regulation, and the goal of alcohol regulation and casino regulation and the regulation various other vices, ought to be striking a balance between protecting individual freedom while also protecting vulnerable people from making choices that can irreparably damage their lives and the lives of those closest to them.

It should hardly be surprising that Brooks’ column has become the object of the latest two minutes hate. Last I checked, 65 percent of Americans born after 1981 favor marijuana legalization, which makes favoring it an entirely unremarkable and uncontroversial position, and a good way for those of us born before 1981 to seem “down with the youth.” So we lecture him about his thoughtlessness, and the human consequences of marijuana prohibition, as if Brooks had never considered the ways in which the enforcement of drug laws interacts with racial and other inequalities.

But few of Brooks’ critics have stopped to consider what the “legalization” of marijuana actually means. One person who has is Mark Kleiman, a professor of public policy at UCLA and the co-author of, among many other books, Marijuana Legalization: What Everyone Needs to Know, a book that demolishes many of the most common misconceptions (some would say delusions) of legalization advocates. And on Christmas Day, Kleiman offered some thoughts on the subject. He leads by suggesting that marijuana should probably be legalized, as the current law enforcement regime is breaking down. But he goes on to offer a number of caveats, including the following:

Everything has advantages and disadvantages. Cannabis legalization will reduce criminal revenue, intrusive enforcement, arrest, incarceration, and disorder around illicit markets, and enhance personal liberty, consumer choice, and respect for the law, and probably reduce bloodshed in Mexico. It might foster safer and more beneficial practices of cannabis use.

At the same, however:

Legalization will certainly increase drug abuse, including heavy use by minors. Every adult is a potential source of leakage to minors. And if we insist on making minors consume illicitly-produced pot, we reserve 20-25% of the market for criminals. Much better to tolerate leakage and have a grey-market supply to minors like the current system that provides them with alcohol.

The central issue, as Brooks observes in his column, is that legalization will lead the price of marijuana to collapse, and taxation can’t make up the difference:

The free-market price of cannabis is at least half an order of magnitude smaller than the current illicit price. Collecting high enough taxes to prevent a price decrease will require enforcement; the $8-per-pack cigarette tax in New York City is widely evaded, yet a pack of cigarettes weights about an ounce. The relevant tax on cannabis would be closer to $300 an ounce.

Moreover, Kleiman argues that the bulk of the revenue in the legal cannabis industry, as in the alcohol business, will flow from problem users, and so “the commercial interest will be opposed to the public interest in minimizing the growth of the clinically impaired population.” The lobbying power of the legal cannabis industry will be directed towards undermining regulatory efforts, which is why Kleiman tentatively recommends a state-monopoly at retail, despite the fact that revenue-driven state monopolies can be aggressive in encouraging consumption (and overconsumption).

And Kleiman raises one of the most important unanswered questions about marijuana legalization, which is whether it serves as a complement or as a substitute for alcohol.

To say that we ought to legalize marijuana because marijuana doesn’t hurt anyone is to discount the fact that legalization will cause a collapse in the price of marijuana and that this price collapse will lead to an increase in consumption that will have unpredictable, and uneven, consequences. Right now, the uneven consequences of marijuana criminalization are particularly insidious. Though incarceration for marijuana consumption is rare, the enforcement of marijuana laws harms poor people far more than rich people, and black people more than non-black people. It seems likely, however, that a post-legalization world would also harm poor people more than rich people, and black people more than non-black people, albeit via different channels. In both cases, it is people raised in chaotic households, people who suffer from poor impulse control, and people who live in violent, high-poverty neighborhoods who will suffer the most. That is why the way we regulate marijuana should be informed by an effort to protect these populations. Full commercial legalization is not the best way to do that. And if you find this notion paternalistic, well, you’re on to something. The reason I oppose full commercial legalization is that I have enormous faith in the ability of entrepreneurs to stimulate demand, and I think it is absolutely right and appropriate for governments, ideally local and state governments, to be able to apply the brakes.

I wrote a column in August on an alternative to full commercial legalization. I still think it makes sense. Kleiman has a number of other very good ideas, e.g., “a system of user-set periodic purchase quotas.”

For more on this general subject, you might appreciate this interview with Kleiman. Please forgive the shininess of my head: