The Agenda

Mark Kleiman on Prop 19

I’m a staunch advocate of reforming our drug laws. But I have doubts about California’s Proposition 19.

My thinking on controlled substances has been heavily influenced by Mark Kleiman, a professor of public policy at UCLA. Though Mark and I disagree on many if not most issues, his work on crime and punishment, in his book When Brute Force Fails and elsewhere, is consistently thought-provoking and carefully argued. Glenn Greenwald, another thinker I don’t often see eye to eye with, has done terrific work on what we might learn from drug decriminalization in Portugal. So rest assured, I’m definitely not an enthusiastic drug warrior.

But as Kleiman recently argued in the Los Angeles Times, legalizing the non-medical use of cannabis in California will cause profound problems as the state and federal governments clash. The federal government can safely ignore medical marijuana, as the states are in charge of regulating medical practices and international treaties banning the production and sale of cannabis have an escape clause for medical use. But legalizing the non-medical use will cause a ripple effect:

According to a study issued by the RAND Corp.’s Drug Policy Research Center this month, if the initiative passes, the pretax retail price of high-grade sinsemilla marijuana sold legally in California is likely to drop to under $40 per ounce, compared with current illicit-market (or dispensary) prices of $300 an ounce and more. Yes, the counties would have authority to tax the product, but even at a tax rate of $50 an ounce — more than 100% of the pretax price — the legal California product would still be a screaming bargain by national standards, at less than one-third of current black-market prices.

As Kleiman goes on to explain, the California effort would lead the U.S. into uncharted waters:

Even without the magnet effect of cheap drugs here, the feds couln’t afford to simply ignore a state’s flouting of the federal prohibition on marijuana. For one thing, allowing Californians to openly grow cannabis for non-medical purposes would be a clear violation of international law; that’s why theNetherlands, which tolerates retail cannabis sales through “coffee shops,” still bans marijuana production. As the Dutch say, the front door of the coffee-shop trade may be legal, but the back door is illegal.

At the end of Kleiman’s piece, he recommends legalizing cannabis across the United States on a non-commercial basis:

Legalizing cannabis isn’t a terrible idea, but I’d very much prefer to do it on a non-commercial (grow-your-own or consumers’ co-op) basis rather than creating a multibillion-dollar industry full of profit-driven firms trying to encourage as much cannabis use as possible. The only way to sell a lot of pot is to create a lot of potheads — not casual, moderate recreational users but chronic, multiple-joints-per-day zonkers. (The alcohol industry, for example, gets 80% of its income from people with drinking problems.) A grow-your-own or co-op system would prevent that marketing push.

This strikes me as the right approach after we weigh the public health dangers against the extraordinary loss of life and waste of human potential, to be sentimental for a moment, caused by the drug war. 

Friends tell me that defeating Proposition 19 won’t suddenly mean that we’ll have the drug policy Kleiman recommends, and that is clearly true. But I tend to think that the downsides from Prop 19′s success might actually make a saner drug policy more difficult to achieve rather than less. 

Reihan Salam is president of the Manhattan Institute and a contributing editor of National Review.

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