The issue of legalizing certain types of drugs has been a major topic of discussion since the 1970s. Most of those who support legalization cite issues of personal freedom, make comparisons to already existing legal drugs like alcohol and tobacco or conclude that the costs of prohibition are too great for the benefits provided. Unfortunately most of the time these arguments are presented in a simplistic manner using superficial and incomplete statements, which raises questions about whether such legalization would be appropriate for society. The real question is are these arguments made because proponents realize that to probe deeper may lead to circumstances that limit the viability of legalization or are they simply replicating the sound bite culture that has taken hold in modern society? Clearly legalization of hard Schedule I drugs like heroin or LSD is not appropriate due to their highly negative influences on the mind and body and how those influences would be detrimental to the rest of society. However, some argue that one Schedule I drug, marijuana, has not been appropriately classified thus discussion of its legal status is warranted. This post will explore whether or not legalization of marijuana is appropriate for society.
Cannabis, a term that includes both marijuana and hash, was classified as a Schedule I drug in 1970 by the Federal Controlled Substances Act (CSA) based on opinions that it was deemed to have a high potential for abuse and no legitimate medical uses. The CSA was an attempt to coalesce various parts and piecemeal drug policies that already existed into a centralized and clear definition of tiers called schedules to better control both legal and illegal distribution means for various substances. Due to this classification individuals are not allowed to have possession, use, purchase, sell or cultivate marijuana.
One goal of some marijuana supporters is for reclassification to a Schedule II drug, which is also viewed as having high potential for abuse and addiction, but is thought to have legitimate medical uses. There is some support for such an action, the most prevalent coming from 1999 report by a White House commenced report by the Institute of Medicine stating that while there are health concerns associated with consuming marijuana it may be appropriate to allow consumption for severe medical conditions under close supervision.1 Such a classification would not decriminalize marijuana or make it legal, but would ease uncertainty surrounding the use of medical marijuana and use of marijuana in scientific research. However, before discussing whether or not such a classification is appropriate it is important to understand why such a classification was made in the first place. Note that the term ‘user’ in the rest of the post refers to individuals using marijuana and exclude the use of all other drugs unless explicitly mentioned and the term ‘proponent’ refers to individuals who support legalizing marijuana unless otherwise noted.
To begin it is interesting that supporters are attempting to generate areas of legalization within individual states over petitioning the federal government. It appears that individuals must believe that there is no legitimate opportunity to succeed at the federal level because legalizing marijuana at the state level while it maintains its illegal standing at the federal level provides little demonstrational benefit for future legalization at the federal level and could provide detriment. One of the first problems is that at the state level any tax collection based on marijuana sales would be intermittent due to the capricious nature of federal raids and enforcement. In fact Congress could pass legislation that withholds a certain percentage of federal funding based on some percentage of tax revenue collected from marijuana taxes. Also if marijuana remains illegal federal tax implications become much more complicated because from a federal standpoint the retail sales of marijuana will be regarded as illegal at a federal level, thus more than likely eliminating any tax deductions increasing the tax burden of the institution, a burden illegal dealers do not have to bear.
The application of the Supremacy Clause has also proven somewhat controversial in cases concerning medical marijuana, but that controversial nature will more than likely abate in its favor in a legal environment. Thus the specter of federal enforcement will limit new ‘reputable’ medium distribution, so new demand created by legalization and any corresponding drop in prices should be filled at a higher percentage by individuals/groups that are experienced in the illegal distribution environment. Any empirical evidence about the efficacy of marijuana legalization could be viewed as questionable due to the illegal nature of marijuana in adjoining states and the various patchwork regulations that would probably take place between different counties within the legal state as seen with some states and medical marijuana.
Another problem with only focusing on marijuana legalization on a state-by-state basis is illegal trafficking between marijuana legal states and marijuana illegal states. This trafficking is a growing problem in the Netherlands in that France and Germany, where marijuana is illegal (although Germany is somewhat decriminalized), have lodged complaints that their citizens are traveling to the Netherlands to purchase large amounts of marijuana that they later take home to either consume or sell.
The Netherlands has sought to address this problem by creating a registration system, so only Netherlands citizens can purchase marijuana. This system is administered with the coffee shops scheduled to become private clubs with Dutch citizen only membership.2 However, this system has raised concerns in the marijuana user community because they do not want to be registered as users, they would rather maintain their anonymity, thus officials believe purchases of black market/street marijuana will increase. Sadly the registration system is actually an appropriate response to the problem of illegal trafficking, but certain users want to have their cake and eat it to, which undermines the policy. Would users in the Untied States also be opposed to such a registration system resulting in fewer state options to reduce the illegal trafficking between states that is almost guaranteed to happen?
Finally based on experiences with how California addressed regulations of medical marijuana, state-based legalization will produce a host of difficult questions for the state authorities and local government regarding licensing regime, licensing quotas (if any), age restrictions, additional taxes and fees, regulation enforcement strategy, etc. Overall focusing on the federal question of legalization is much more practical because it evades all of these problems isolated to state-by-state legalization.
One of the first arguments made for legalization involves personal freedom. Smoking marijuana is viewed as a personal choice that the government does not have a right to act against. Unfortunately for proponents that argue for legalization on the grounds of personal freedom, personal freedom only extends to where one does not infringe upon another’s personal freedom. The old saying, ‘My right to swing my fist ends where your face begins’ is an excellent example of this limitation. The consumption of marijuana imposes negative externalities on other parties (friends, family and society in general) versus actual innocuous expressions of personal freedom such as sexual intercourse between two consenting adults in a private residence. These negative externalities need to be compensated for in some way. One way is to attempt to limit the behavior by applying legal consequences to the behavior. Clearly this method of action was selected for a large number of drugs as far back as the 1910s. So what are some of the main relevant arguments that lead to the prohibition of drugs like marijuana?
The first and most understandable argument is that due to the conscious altering influences of drugs, including marijuana, the probability that an individual under the influence of a drug will physically harm another individual or commit a crime was higher versus an individual not under the influence of a drug. The second argument is that users typically consume more resources than non-drug users in the realm of public health, thus increasing costs. The more important aspect of this argument is that these healthcare cost increases come at no perceived legitimate benefit for the user or society. The third argument is rate of growth in number of consumers; in general human beings do not extensively contemplate the negative short-term or long-term consequences of their actions and would be more likely to consume drugs if not for a legal taboo due to the conflicting and capricious societal ones demonstrated by the large shifts in public sentiment towards drug use through various decades. An extension of this argument is that it is the responsibility of government to protect individuals from themselves. The final argument is that not only are users less productive, but they also limit the productivity of society limiting economic growth and development.
It is difficult to effectively argue against the basis of any of those reasons, although some do try, but most proponents would argue that while the above reasons are logical, the prohibition reaction against marijuana is not. Drug use does increase criminal activity, largely because of actions while intoxicated not while attempting to collect resources to acquire drugs,3,4 and this increase will result in more detrimental outcomes for both the user and society. Reasonable proponents accept that element, but would argue that the types of negative externality that occur are not unique to the marijuana use.
The argument would be that instead of prohibiting marijuana use, society should respond to the direct negative outcomes that use has on bystanders. Thus, if one under the influence of marijuana steals from someone they should be charged with theft, but the fact that the marijuana use may have been a factor in the theft should be considered irrelevant. However, to justify such a strategy one would have to ignore the circumstances or intent behind the commission of any crime, an idea that has remained controversial, most notably with hate crimes. In that vein one could argue that due to the increased probability rates of committing certain crimes under the influence of marijuana penalties should be higher than normal. The nature of such a policy will be discussed further later.
Another argument with respect to addressing negative externalities beyond prohibition is that society is so large that accepting a form of zero tolerance for certain negative externalities is not realistic. One could attempt to utilize pollution or environmental damage as an example. To ban the ability of a sector of society to pollute the air would be deemed unrealistic and actually detrimental to society due to slowing economic growth from a lack of effective alternatives to the polluting methodology. Based on this reality a legal level of pollution needs to be drawn from how the cost of reducing pollution equates to the willingness or ability of society to bear that cost to reduce pollution. The big problem with this comparison is that while unfortunately pollution is a necessary byproduct of societal economic growth, at this point in time, the consumption of marijuana and its potential negative outcomes is not. Anyone making the argument that it is necessary for individuals to smoking marijuana to drive societal growth or produce any positive societal benefit can be ignored for the rest of the discussion.
Proponents run into another problem with this externality trade-off argument in that the society already compensates for the negative affects of alcohol. Alcohol became ingrained in human culture before marijuana leading to a much greater penetration magnitude granting it a form of societal acceptance making it easier for society to tolerate the costs associated with alcohol. Some argue that this penetration was driven in part by racism, which may be true, but is also unfortunately irrelevant because one must draw conclusions from the existing present, not the potential past. It can be reasoned that the negative influences of alcohol on society (impaired driving, potential violent outbursts, lost productivity, etc.) are great enough that society is not willing to accept the negative influences of marijuana (impaired driving, lost productivity, healthcare cost increases, etc.) on top of them. Some proponents would say that this reality is not fair and in that mindset they would have a philosophical ally in China and other fast developing countries.
The ‘not fair’ argument sometimes used by proponents is also the chief argument used by developing nations such as China, India and Brazil in international diplomacy geared to reducing global greenhouse gas emissions. Frequently China makes the argument that it is not fair that the developed Western world got to release large amounts of carbon dioxide and other greenhouse gases during their economic and societal development, yet these same nations are now instructing China and other fast developing nations that they should not have the ability to develop their economies by releasing similar amounts of pollution. The argument from developed nations is similar to the marijuana legalization opponents in that the world (U.S.) cannot afford the resultant negative externalities, global warming (increased societal costs and reduced productivity at no legitimate gain) that will occur by allowing such behavior. The issue here is compounded damage because alcohol consumption rarely competes with marijuana consumption and when the two are combined detrimental outcome potential rises significantly versus when one is consumed alone. Unfortunately for China the developed world developed first just like alcohol became accepted in society first, which changes the nature of acceptability for their pollution just as it has for marijuana.
Another difference in the argument between the legality of alcohol versus marijuana is the issue of intoxication. A vast majority of individuals who consume alcohol rarely become intoxicated because these individuals only consume a limited amount of alcohol whereas not only do most individuals who consume marijuana become intoxicated, intoxication seems to be the entire point of consuming marijuana (in large part to receive the perceived benefits of intoxication). Also there is a significant amount of agreement regarding the effects and consequences of alcohol on individuals regardless of age and sex whereas the scientific community is still conflicted about the effects and consequences, especially long-term, of marijuana use. Some successfully argue that a reason for this confusion is that as a Schedule I drug there are a number of regulatory steps researchers have to take before acquiring marijuana for use in their research, thus limiting the amount of research that can be conducted.
The problem with this confliction is that the prohibition of marijuana then places the burden of proof on proponents to prove its general safety in use to society. This proof is difficult to do beyond a reasonable doubt due to all of the existing science especially when addressing all of the personal bias and marijuana dependency. Part of the problem with this proof is too many individuals personalize their experiences and extrapolate them to society, thus if they don’t have a negative experience with marijuana they believe that no one has negative experiences, which is obviously inaccurate.
Finally proponents attempt to demonstrate the dangers of alcohol use relative to the dangers of marijuana use through negative consequences in absolute numbers, there is more damage done to society by alcohol consumption than marijuana consumption. However, they rarely mention that alcohol use is much greater than marijuana use, thus it is inherently difficult to deduce whether or not marijuana would be more dangerous than alcohol if usage patterns and social acceptance were similar. At the moment from a societal perspective the difference in damage between marijuana and alcohol is much more dependent on scale of use than the biochemical influence they exert on the individual, thus using the alcohol is more dangerous than marijuana argument is not appropriate.
Another argument made by proponents is on the basis of moral justice with respect to how individuals of different race are arrested and prosecuted when caught in possession of marijuana by law enforcement. The logic of the argument is that marijuana should be legalized in order to ‘balance’ the racial bias demonstrated by law enforcement and the judicial branch when arresting and convicting minority users versus white users. Proponents support this argument by citing arrest statistics like blacks having a higher arrest rate than whites, 20% versus 15%, despite similar usage rates and a larger percentage of total arrests related to drug use, 15% versus 11%.5,6 Unfortunately proponents stop there when there are other elements of this argument to consider.
The problem with trying to justify legalization with an argument of racism is first one has to prove racism. One means to explore this concept is to analyze whether or not minority users are being sent to jail due to a higher wrongful conviction rates than white users not just arrested at a higher rate despite the arrests being appropriate. To justify this conclusion one would have to conduct an analysis that demonstrated more aggressive incorrect convictions for minorities. For example in county A consider that there are 100 white and 100 black people, 80 black people are accused of violating drug laws with 75 being rightfully convicted and 5 being rightfully acquitted versus 40 white people being accused of violating drug laws with 37 being rightfully convicted and 3 being rightfully acquitted. In this scenario there is no racism as the conviction rates are similar, black drug use is simply higher than white drug use. In a county B consider that there are 100 white and 100 black people, 50 black people are accused of violating drug laws with 45 being rightfully convicted and 5 being rightfully acquitted versus 50 white people accused of violating drug laws with 5 being rightfully convicted and 5 being rightfully acquitted and 40 being wrongfully acquitted.
In the second scenario one could argue racism because the justifiable conviction rate is skewed so much in favor of blacks and typically whether or not an individual is guilty of a drug offense is rather cut-and-dry; however those arguing racism must address the issue of unequal justice between socioeconomic classes. Despite its contrasting ideological belief in the judicial system, it is widely practiced that the poor receive less equitable treatment in the legal system than the rich and a larger percentage of minorities are poor. Therefore, to prove racism in the execution of marijuana-based court convictions one has to identify a wrongful conviction pattern and then untangle the web of bias between race/ethnicity and socioeconomics, a difficult task.
A second attack strategy in addressing racism looks at arrest rates. Initially when looking at the available information for marijuana arrest rates one could argue in favor of racism in that minorities are arrested at a disproportional rate than whites for drug possession despite similar usage rates as previously mentioned.4,6 However, this accretion hits a snag in how the crime is committed. Middle class and rich individuals, more often white, have resources available to them to make their illicit drug use more evasive than less wealthy individuals. It is inappropriate to suggest that a law is racist if one group has less ability to evade it than another group when there is no selective enforcement intent. Committing a crime in a public area and then being arrested for it can hardly be viewed as selective targeting.
Again what people who make this argument conveniently forget is that these individuals whether white, black, Latino, Asian, American Indian, etc. are breaking the existing law, thus they are directly responsible for any negative consequences stemming from that violation. Overall socioeconomic bias is more of an influencing factor in any demographic slants in present day drug arrests and convictions than racial bias. However, if one is going to start addressing laws that have socioeconomic bias, from a standpoint of impact marijuana legalization is far in the back of the line in what should be addressed.
A third means of attack is addressing the unfair nature of mandatory minimums for drug offenses. The rational for the adoption of mandatory minimums stemmed from the unfairness of the sentencing system. Basically federal judges had wide-ranging discretion when imposing sentence, so the level of punishment for a drug crime was contingent on the type of judge that presided over the case. Due to the fact that even judges cannot hide their personal bias all of the time two different judges could issue radically different penalties for the same type of defendant convicted of the same type of crime. Also some believed that in some regions a high volume of drug crimes had created a sense of desensitization resulting in inappropriately lax sentences, thus mandatory minimums were required to ensure ‘proper’ punishment.
There are two immediate problems with addressing mandatory minimums in the argument for marijuana legalization. First, is the issue of not addressing the problem with a size appropriate solution. If one believes mandatory minimums are unfair and possibly racist then one should directly address the sentencing guidelines in those minimums instead of negating the validity of those guidelines entirely. Such a response would be akin to banning the ability of all private citizens to own any type of firearm to satisfy the intent of banning ownership of assault rifles.
Second, mandatory minimums are applicable only to felony-level offenses and individual possession charges are almost always misdemeanors, thus they do not accumulate to mandatory minimums. It takes numerous repeat offenses within a given time period for the charge to be upgraded from misdemeanor to felony. Mandatory minimums are designed to impact higher-level drug dealers, not individuals who only use drugs and carry a joint or two. Mandatory minimum proponents state that such stringent guidelines are required to place a necessary level of deterrence upon drug dealers due to the monetary rewards that can be acquired when dealing drugs, but felonies were applied as the necessary element to avoid entrapping less ‘dangerous’ individuals. Overall almost all federal marijuana offenders are convicted of trafficking or cultivating versus possession without intent to distribute (i.e. simple possession).8
In the case of marijuana offenses mandatory minimums do not play a significant role in ensnaring low-level users because to be eligible for the lowest minimum sentence (5-years) the defendant must be convicted where he/she was in possession of at least 100 kilos (220 lbs) of marijuana or have at least 100 plants.9 To suggest that such individuals are simple ‘babies in the woods’ when it comes to drug use or ‘just made a simple mistake’ is laughable. Also opponents typically forget about the ‘safety valve’ provision of 18 U.S.C. § 3553(f), which reduces time for a number of individuals below the mandatory minimum. Overall if one wants to address mandatory minimums, address mandatory minimums on their face not through an attempt to completely invalidate them by legalizing drug q.
A fourth means of argument would be to argue that the law itself is bad. Unfortunately for proponents this argument cannot be made as an element of necessity. Individuals that are convicted of various marijuana drug crimes are not akin to Jean Valjean stealing bread for his sister’s starving child. One does not need to consume marijuana to survive nor does the consumption of marijuana produce unique affects that cannot be otherwise developed through legal means. It is also difficult to argue this point rationally on the basis of race with respect to stating that just because one group of individuals are convicted of a given crime that the crime is racist. If this logic were sound then one could argue that if a majority of individuals convicted of embezzlement were Jewish then embezzlement is a bias law. Perhaps one can attempt to rationally argue that laws involving marijuana possession are inappropriate laws, but one cannot make that argument on grounds of racism or other bias.
One important aspect of marijuana legalization is how marijuana price will change in response. Various models have attempted to estimate how price-consumption trends will change in a legalized environment by estimating price elasticity (how consumption rates will change in response to price) for marijuana. Elasticity in this modeling is a ratio of consumption change versus price change such that a negative elasticity signifies an inverse relationship - a price increase leads to a consumption decrease and visa versa where a positive elasticity signifies a proportional relationship - a price increase leads to a consumption increase. For example if a 20% price drop resulted in a 10% increase in consumption that would yield an elasticity of –0.5 (10/-20).
In the early stages of economic theory regarding addictive substances it was thought that consumption of addictive products would be less responsive to price because the addictive nature of those products force their consumers to consume a certain amount resulting in a flatter slope on a price-consumption curve.10,11 However, this belief was later demonstrated incorrect through observation of purchasing behavior with respects to alcohol and cigarettes.12-14 Therefore, elasticity prediction for addictive substances operates in a similar manner to non-addictive substances and in such a negative elasticity should be expected for marijuana.
Both logic and existing empirical evidence from other countries demonstrate that decriminalization and its resultant increased supply availability along more legitimate operators creates a substantial fall in drug prices from the increase in supply and the elimination of ‘hazard’ pay for procurement and transport of an illegal substance.15-21 The increase in supply not only lowers price from simple supply and demand economics, but also because of a greater availability consistency of the marijuana. While some proponents suggest that marijuana availability is ubiquitous, there are periods of supply shortages, thus this shortage can temporarily increase price or leave the user waiting for supply for some short period of time. These small price shocks will not typically be seen in general averages, but will affect short-term use. With the resultant drop in price along with a completely stable supply available it stands to reason that consumption of marijuana will increase.
In empirical terms, price drops in other illicit drugs have resulted in significant consumption increases. For example in Norway from 1993 to 2002 the price of heroin dropped 78% resulting in a consumption increase of 275%.15 Some would ask why such a dramatic increase in consumption was not seen in the Netherlands when their de facto legalization of marijuana through decriminalization and retail sales resulted in a price drop.2 The best explanation for this result is the continuation of the ‘backdoor’ problem, which will be discussed later, limiting supply preventing an unrestrained price drop. The lingering question in the United States is what will be the size of this negative elasticity? Overall while it is easy to estimate the sign of the elasticity, negative, it is difficult to estimate its size.15,22
Overall one can expect that the loss of the prohibition status of marijuana will increase consumption over at least four different rationalities: first, individuals that may have refrained from using because of their concerns with the punitive consequences of consumption would become new consumers because those punitive consequences no longer exist. Second, individuals that may have been unable to determine sufficient acquisition mediums would become new users. Not everyone is a savvy operator and has the courage/brashness to gauge the existing ‘drug channels’ in a given area, thus despite the large existing levels of access suggested by current users and proponents these individuals would be harder pressed to determine those access points. With legalization those access points will be better defined without additional social or legal risk. This rationality should be the least influential of the rationalities.
Third, some individuals did not become users simply because the product price was too high. The significant decrease in price that will be seen with legalization will quell this concern. Fourth legalization will ‘soften’ the cultural mindset of marijuana consumption, similar to that seen in the ‘60s and 70s, which will further increase consumption because individuals will be less concerned about negative implications from their social group; some proponents would argue that this attitude shift has already occurred, but the accuracy of that belief is largely dependent on to what area of the country it is applied.
An interesting behavioral change may be that with lower prices harder drug users may switch from cocaine and heroin to greater levels of marijuana. However, depending on the validity of the gateway hypothesis greater consumption of marijuana may lead to greater consumption of harder drugs instead. The gateway hypothesis (GH), also referred to as the stepping-stone hypothesis, is one of the more controversial elements of drug policy ironically because of the political implications tied to its validity. The basic idea of the GH is that the use of ‘lower tier’ drugs, most notably marijuana, amphetamines and to a lesser extent alcohol, will result in a significantly higher probability of consuming ‘higher tier’ drugs like cocaine and heroin in the future. For the issue of marijuana legalization the political implications are obvious in that if the GH is accurate then such a reality significantly lessens the chance of federal legalization.
There are three general methodologies behind the hypothesis. First, consumption of marijuana exposes users to an environment and relationships that non-users are able to avoid. Interaction with ‘less savory’ individuals within these environments then increase the probability for introduction to other higher tier drugs. Second, marijuana use may create biochemical and/or psychological changes in an individual that makes them more susceptible to the biochemical changes induced by higher tier drugs. In a way this aspect of GH suggests that consumption of marijuana makes abuse/addiction of other higher tier drugs more likely leading to a greater level of consumption. This psychological response may also involve marijuana resistance versus economics for as tolerance to marijuana builds more marijuana will be needed to generate the usual effect, which costs more money. Higher tier drugs without a similar level of tolerance then start to provide a more ‘economical’ effect. This second methodology is the one most people associate with the GH. Third, users may extrapolate their perceived muted detrimental effects of marijuana to those of higher tier drugs reducing their perceived toxicities, which would encourage use.
Some empirical survey information of marijuana users supports the GH,23-26 but other research does not.27-30 The biggest factor appears to be the lack of complete information, especially with the crux of that uncertainty being unobserved heterogeneity. One common explanation made by GH detractors seems to substitute one GH methodology for another. Some argue that marijuana use is not the reason that marijuana users become heroin users, but instead it was the association with drug dealers and other users.29,30 This association presents opportunities that increase the probability that a user of one drug would become a user of multiple drugs. The problem with this explanation is that the probability of marijuana users using higher tier drugs is still higher than the probability of non-marijuana users using higher tier drugs; substituting one methodology for another does not help disprove the core of GH, it simply attempts to change the issue from a biochemical one to a social one.
While this switch does not disprove the GH, what it may do is help GH detractors mitigate the potential detrimental affects of GH in a legalized environment. A somewhat famous comparison study between San Francisco and Amsterdam came to the conclusion that San Francisco users had a higher usage rate of higher tier drugs than individuals from Amsterdam.30 Based on this conclusion one could suggest that the decriminalized with retail sale environment in Amsterdam plays a role in reducing the influence of the GH effect. Basically the exposure to the illegal black market environment is the driving factor in GH, so reduce exposure to that illegal environment, like Amsterdam has done, and one mitigates the effects of GH. If true, this is a positive point of argument for proponents.
There is a concern with this study in that the authors did not address total availability of higher tier drugs. While receptive to softer drugs like marijuana, Amsterdam drug policy for higher tier substances is more strict, especially with respects to importing, thus one wonders even if a marijuana user wanted to acquire a higher tier drug the availability of that drug may be in question regardless of the lack of a black market for marijuana. Without this total access understanding the impact and conclusion of this study is somewhat muted. Also the sample size they included of only looking at the information for individuals that had at least 25 separate use events is somewhat incomplete because it does not include those who may have moved on from marijuana to higher tier drugs before 25 uses due to personal taste or tolerance.
Another problem with this study was that the authors concluded from their surveys that informal social controls developed from cultural and personal associations had a more powerful effect on their behavior than formal social controls like drug policies. Such a conclusion was inappropriate for the applied methodology because the individuals in their survey had already ignored the law to use marijuana numerous times so by default they believed that informal social controls have a stronger influence over formal social controls. This methodology would be similar to interviewing a number of cat owners and asking which are better cats or dogs and then concluding cats are better.
To actually test this hypothesis one must ask non-users about why they do not use marijuana (is it because of a lack of availability, is it because it costs too much, is it because of fear of punitive retributions, is it because it would be frowned upon in their social circle, etc). When these questions were asked of non-users the results favored health concerns over informal or formal social controls. While parental disapproval (58.5%) was the stronger informal control over fear of being arrested, 45% reported potential arrest as a motivating factor to not take marijuana or stop taking it, thus arrest is not the muted factor that some portray it to be.31 Overall with these flaws it is difficult to put too much faith in the conclusions of San Francisco-Amsterdam comparison study.
The biggest complaint that proponents have with GH is their belief that its stepping stone nature is an environmental dominator. Basically a vast majority of individuals do not have access to higher tier drugs before gaining access to marijuana, thus if they have a user mentality there is an overwhelming probability that marijuana will be available before higher tier drugs, which favors the use of marijuana before other higher tier drugs.29 In the minds of GH opponents these individuals would use higher tier drugs with or without the use of marijuana, but marijuana use often occurs first due to easier and earlier access, thus GH is masked as a post-hoc argument.
While this concern may be valid, the problem is that there is no way to knowing based on the type of questions that are asked when conducting the user surveys that comprise most of the GH support and detraction. For example it would be useful to know the reason why marijuana was consumed first, if indeed it was consumed first. Some rationalities behind such a choice could be that marijuana was viewed as the safest opinion when starting drug use or marijuana was the easiest to acquire or the person had a personality pre-disposed to drug use and just wanted to use a drug. Using that information one could move on to understanding the why behind the use of higher tier drugs for those who took that path to better evaluate the more specific elements of GH and its accuracy.
On a biochemical level there is significant correlational evidence that marijuana use increases the use of higher tier drugs32-34 However, there do appear to be gaps between increasing the use of the drug and having an augmenting addictive affect. The principle reason that these conclusions are only correlational is because there are numerous variables (genetic, social, environmental, etc.) that make developing a controlled environment difficult. Unfortunately proponents use these uncertainty factors as a method to invalidate any conclusion that they disagree with, similar to those individuals who deny the influence of humans in global warming.
Knockout experiments with mice have demonstrated that mice lacking the cannabinoid receptor type 1 (CB1) receptor reduce reinforcing efficacy of heroin.35 Basically the addictive effect of heroin is lessened. Also pre-exposure to THC results in a significantly higher level of heroin injection versus controls.34 However, some confusion may arise with other studies that appear to conflict this information with conclusions that CB1 receptor antagonist rimonabant does not influence heroin use.36,37 Based on all of the existing information one possibility is that augmentation of CB1 receptors over longer periods of time result in increased heroin use by augmenting pathway activation, but short-term augmentation has no significant influence. The impact of this influence is related to dosage of THC in the marijuana. Other factors also influence whether or not an individual becomes addicted to heroin, but increased use will logically increase the probability of addiction over a longer timeframe. Results with cocaine appear to be dissimilar from heroin for short-term exposure does not change consumption or addiction rates.33
The biochemical information reflects a key issues with the GH regarding an understanding of probabilities. Nothing, besides death, has a zero or 100 percent occurrence due to divergences between subjects from personality, genetics and brain function. Some GH detractors seem to conclude that if the GH is not applicable to an extremely large percentage of users (say 90+%) then it is invalid. This reasoning is somewhat foolish. Majority percentages are not required for GH to be a significant element of influence when deciding about legal marijuana use in society because of the scale of use involved. Even if only 20% of marijuana users were influenced by GH and went on to use higher tier drugs that would encompass millions of individuals that are becoming higher tier users who otherwise would not be such users.
In some respects GH can be organized as a two-step construct. While it is indisputable that there are biochemical changes that occur in the brain due to marijuana consumption, these biochemical changes are irrelevant until the higher tier drug is consumed. Even if the brain is more receptive to drug x because of marijuana use, such an increase is irrelevant if drug x is not eventually consumed. Therefore, the most recognized aspect of GH is similar to a chemical reaction that needs a catalyst to initiate the reaction. That catalyst is the first or third methodologies of GH. Environment, tolerance or muted consequences leads the user to consume a higher tier drug, which under longer-term marijuana use increases the probability of a higher rate of consumption or higher dose consumption of that higher tier drug.
Therefore, if decriminalization or legalization were to significantly influence individual access to higher tier drugs through changing the environment of acquisition it could be argued that such a policy would reduce the influence of the GH, but not eliminate it because of the tolerance and muted consequence factors. One could argue though that the environmental aspect plays a larger role than the tolerance or muted consequence aspects, whether that belief is true or not is difficult to determine. However, because usage rates would increase in a legalized environment the reduction in any GH influence would be partially offset by this increased use. Basically in scenario 1 (illegal marijuana) there are 1000 users with 26% likely to become higher tier users due to marijuana use and in scenario 2 (legal marijuana) there are 1400 users with 16% likely to become higher tier users due to marijuana use.
Remember this positive effect is contingent on users not entering these ‘sketchy’ environments and purchasing at safe retail outlets. However, this potential is hindered by two behaviors. First, the magnitude at which this ‘street dealing’ occurs may be in question in that surveys of supply acquisition have indicated that 89% of individuals receive their marijuana from a relative or friend not from a stranger and 58% do not pay (with some form of financial element) for it.38 Therefore, if the GH is accurate the environment response may not play a large role in U.S. markets. Second, retail outlets in a legalized environment may not have the ability to effectively compete against existing marijuana dealers, be it family or other private dealers, thus those who are exposed to street dealing will more than likely remain in that environment.
A key element affecting the price and consumption of marijuana in a legalized environment is the relationship between retail regulated fixed points of sale (dispensaries, drug stores, supermarkets, etc.) and private suppliers. One of the biggest selling points that proponents make is the potential tax revenue that states and even the federal government could collect through legal distribution of marijuana. Proponents commonly state that it makes little sense for marijuana to remain illegal and have the violent dangerous drug cartels and terrorists collect all of the money because in their eyes there is no viable strategy that can significantly limit demand for marijuana. To support this contention in 2010 when California voters were considering the Regulate, Control and Tax Cannabis Act (RCTCA) their State Board of Equalization released a report estimating that legalizing marijuana and taxing it at $50 per ounce would generate $1.382 billion (most round up to $1.4) for the state each year.39 Note that the RCTCA obviously failed. Also that most quantitative information used in the debate regarding legalization is derived from estimates of the California marketplace.
Unfortunately the California State Board of Equalization made a pair of incredibly foolish assumptions when deriving this tax revenue value. They seem to assume that the retail markets after legalization would capture all of the marijuana sales and do assume that there would be no tax evasion. These assumptions are incredibly naïve. Ironically the State Board actually believes a 12-17% rate of smuggling/evasion exists for tobacco, but assumed a higher tax on marijuana with pre-existing illegal distribution channels will result in 0% smuggling/evasion. In general an ounce of marijuana sells for about 300-350 dollars in California.40 Despite not having an exact idea how much the price of marijuana will decrease after legalization an estimated drop of at least 50% is a reasonable place to start. Such a drop would lower the ‘street’ price of marijuana to a range between 150-175 dollars, thus the retail sales price would be increased to a range of 200 to 225 dollars due to the tax.
With the tax adding additional cost to the price of legal marijuana it is impossible to see a 100% sales capture as a reality for private dealers that are not bound by regulation in a ‘black market’ can easily undercut that amount. Some would argue that this type of behavior is not seen in the alcohol market as retail sales industry captures nearly 100% of the market, but to equate such a similarity to the marijuana market is irrational. Marijuana is much easier to supply and store than alcohol, has lower opportunity, maintenance and capital costs and has a more lucrative profit margin even after the price drop. Note that in this analysis a private dealer is an individual that grows his/her own marijuana and sells it without the use of a retail establishment (whether or not this individual is related to or a friend of the consumer is unknown and irrelevant).
Also typically the private citizen cannot effectively manage large-scale alcohol manufacturing and hope to make a sizable profit because even if they undercut the retail price the overall profit margin relative to undercutting that price will be limited demanding that they capture a greater volume of the market, which increases capital and maintenance costs. That is why alcohol manufactures typically look toward sales at large retail establishments to spur profit by volume. However, in the case of marijuana, private dealers can easily make a living on a lower volume of sales due to the higher profit margins allowing them to make a stronger price bids against retail industry. Think of it like a farmer’s market competing against a supermarket except instead of one farmer’s market there are thousands of them and they are much more mobile. An empirical example of this undercut behavior was seen in Canada in the mid-90s where a new tax increased cigarette pack prices creating an average 2 dollar differential between Canada and U.S. prices. The cheaper prices in the U.S. resulted in significant smuggling from the U.S. to Canada in attempt to evade that tax.41-43 Based on previous evidence and logic it is basically impossible to conclude that smuggling will not occur, unless a universally applied tax rate is developed and even then it may be difficult to avoid smuggling from other countries (Mexico and Canada).
Beyond the intricacies of smuggling the private growth allotment in the RCTCA would actually have heavily undermined the retail market all on its own due to its allowable growth parameters. In the RCTCA any California resident could grow marijuana for ‘personal use’ in a residential building in an area of up to 25 square feet. Around 20 plants can grow comfortably in a 25 square foot area and a healthy mature marijuana plant can typically produce one to twenty ounces of marijuana. Obviously the higher ranged values are for experienced ‘commercial’ growers and the lower values are for inexperienced small-scale growers. Therefore, using the realistic estimate of 0.5 grams (or 0.0177 ounces) of marijuana per joint, under the RCTCA regulation a private resident would be able to produce approximately 1,134 to 22,680 joints per cultivation period. Assuming a significantly high, near insane, consumption rate of 3 joints per day (0.0531 ounces) a private individual would consume 1,095 joints per year equating to 4.8% to 96.9% of the legal allowance in only a single cultivation period, not per year.
Under this regulation format in a vast majority of consumption scenarios, even if only a few plants are grown instead of the maximum allotment, not only could private citizens met their own personal usage without having to purchase any marijuana at a retail establishment, but with the expected surpluses they could branch out and sell to other individuals in cash, non-taxed, sales similar to how illicit sales occur today. Interestingly enough laws regarding regulations would not act as effective deterrents in the eyes of legalization proponents because stricter laws today do not act as effective deterrents in their eyes hence the push for legalization. The initial capital costs associated with starting cultivation are low enough that they do not act as much of a obstacle. In addition this analysis does not include the possibilities for sales through the Internet, a medium in which tax revenue collection is much more difficult and regulation enforcement is much looser than brick and mortar institutions.
Others would argue that this behavior is not seen in medical marijuana as an assumed large number still visit retail dispensaries. This point is questionable because it tries to apply behavior in an environment where marijuana sales in most regards are still illegal to an environment where marijuana sales are legal; if these individuals could purchase marijuana at a significant discount from a private dealer or grow it him/herself without legal consequence how many would still buy from a dispensary? Remember most individuals who legitimately need medical marijuana are elderly who typically have more respect for the law than younger individuals and are also supposedly in pain most of the time requiring the marijuana to abate that pain, thus have little time for cultivation, unlike a number of younger individuals. Thus, despite the price issue it stands to reason that a large number of individuals who use marijuana strictly for medical purposes will be retail consumers because they would be leery to trust private dealers and typically require specific dosages that may not be provided by a private dealer.
Others still would argue that this private dealer aspect is not seen in the coffee shops of the Netherlands. However, such a statement is not appropriate because the Netherlands has decriminalized marijuana not legalized it and this decriminalization does not include the ability for private citizens to grow marijuana.2 That differing aspect between the decriminalized retail environment in the Netherlands and the prospective legalized environment that many proponents desire in the United States makes a dramatic difference in prospective retail sales and resultant collected tax revenue.
Even if the Netherlands were used as the ideal model for most legalization proponents, based on survey information, the coffee shops in the Netherlands in 1997 only accounted for approximately 47% of consumption source.44 It is reasonable to believe that with further regulation since those surveys resulting in the closure of about 40% of the existing coffee shops between 1997 and 2007 for regulation violations,2 that coffee shop purchase percentage has decreased. It will further decrease with the 2011 registration system being administered in the coming years. However, it must be pointed out that while 41.5% reported acquiring marijuana from family and friends there is no follow-up information on where those family and friends acquired their marijuana.
Overall it stands to reason that the regulated taxed retail marijuana sales industry established in a legalized environment would not capture much of the new legal marijuana market. There are three distinct groups that would encapsulate nearly all of retail marijuana buyers: 1) Individuals that use marijuana strictly for medical purposes; 2) Individuals that are very casual marijuana users (once a month, etc.) that have not established a relationship with a given dealer, don’t want to grow it themselves or cannot afford to make many purchases even at reduced prices (at work drug testing etc.), thus buy at retail for convenience; 3) The ‘foodie’ marijuana user who would be able to better purchase ‘exotic’ types of marijuana (something medical marijuana dispensaries pitch today) or food/drink based marijuana products from a retail environment than from a private dealer. Unfortunately for those that calculate a large tax base from marijuana legalization it is logical to assume that most chronic every other day users, who make up a majority share of the marijuana market, would simply stay with their current dealers because they know and trust (to a point) those dealers and those private dealers could undercut the price in retail locations due to the added tax or grow it themselves.
Amid the domestic financial arguments for legalization, proponents have also contended that legalization would cut the legs out from under drug cartels/gangs and other nefarious organizations by reducing their profit margins, which will in turn reduce the opportunities for and advantages of committing acts of violence. Assume for a moment that this proponent belief is accurate and that legalization is significantly detrimental to cartels forcing them to shrink their zones of operation. If cartels contract their business then like any contraction in any business there will be layoffs and certain individuals such as enforcers, gunrunners, traffickers, pushers, etc. could lose their source of income. It is difficult to suggest that these individuals, who have been conducting illegal activities for years to decades, would seamlessly integrate themselves back into lawful society not causing any trouble in the process. So what actions would these individuals take in response to these layoffs and what actions would government take to address this change? Proponents do not appear to have an answer to this question, let alone actually bring it up for discussion.
Clearly some form of program would have to be developed to help aid the integration of these individuals back into lawful society, but the problem is that a number of these individuals operate in foreign countries, thus would be out of direct reach of U.S. efforts, thus legalization in the United States could change criminal activity in these countries, but the probability and extent of such change is unknown. For example about 43% of all federal marijuana convictions were of non-citizens.45 What happens to these individuals in a legalized environment do they return to their country of origin or do they stay in the United States? Also it is difficult to know how to integrate domestic-based drug personnel back into society, especially with the current state of the U.S. economy and that for most of them a 9-5 job would result in a pay-cut.
Fortunately or unfortunately depending on one’s perspective at this moment logic dictates that cartels would not be significantly bothered by the threat of legalization. The biggest problem with the strategy of trying to excise drug cartels from marijuana distribution by flooding the market with marijuana significantly lowering the price, because that is what legalization proponents envision, is that cartels have already set up a defined infrastructure for trafficking marijuana. With a developed infrastructure for production and transport eliminating capital costs the only costs associated with marijuana trafficking in an illegal environment are opportunity costs, hazard costs and maintenance/production costs. Legalizing marijuana eliminates hazard costs and gives cartels an advantage in their production costs due to existing scale.
Compare this cartel economic environment to the economic environment faced by those new competitors brought into the market by legalization; these new competitors would still have to build production and transport infrastructures as well as deal with any costs associated with regulation and taxes. One could argue that cartels would also have the additional costs of regulation and taxes to their economic analysis, but that argument assumes that cartels would not use their pre-existing trafficking connections to continue to distribute their product in effort to avoid regulations and taxes. Overall these additional costs would create a tough decision for those trying to enter the market. Such costs may be lessened in states that currently have a regulated infrastructure for medical marijuana, but the extent of the reduction is unknown.
Realistically there are two ways businesses attempt to make a profit: first they focus on per unit profit where they attempt to make as much money as possible on a single unit and second they focus on volume profit where they attempt to make a small profit on a single unit and sell a lot of the particular product. For new legalized marijuana businesses the existence of a well funded well established competitor in the cartels would eliminate the per unit profit route because the cartels, like the private dealers mentioned above, could simply undercut the offered price due to their lower costs. Therefore, these new legal marijuana businesses would need to focus on a volume profit strategy. A volume profit strategy may work against the cartels because more than likely there is a profit floor for cartel operations and a legal operator undercutting this floor would force the cartel from the market.
Unfortunately there are some major concerns with attempting to undercut this price floor. First, there is no reliable information on what the value of this floor actually is, is it $50 an ounce or $200 an ounce or something else, thus a trial-and-error method would have to be incorporated by the legal operators, which is a long-term experimental process because consumption would have to be calculated over the course of years before the price floor was determined. This also demands a system where one could effectively determine if individuals were actually shifting away from cartels and private dealers to purchase from retail establishments.
Second, the cartels may not respond positively to legal operators attempting to ‘steal’ their business and would react violently. There is already conflicting arguments for this trend from medical marijuana dispensaries in California. In 2009 the California Police Chiefs Assn. produced a white paper that suggested that due to the high value and large concentrations of marijuana along with the typical cash only nature of the dispensary business that several operators of dispensaries had been attacked and murdered by armed robbers both at their storefronts and homes and such places have been regularly burglarized.46 This reinforced previous accretions regarding increases in crime.47 However, a pair of UCLA researchers produced a model of criminal activity based on factors that perpetuate criminal activity that suggested a negligible influence of dispensaries on criminal activity in the surrounding environment.48
Unfortunately for proponents the UCLA study was limited in that it only investigated the city of Sacramento over a single year, 2009. It would have been nice had they looked at Oakland instead because of the much higher dispensary sales total implying more activity. This limitation significantly hinders the use of this report as a counter-point to the white paper, which possessed a wider breadth, focused on specific crimes associated with dispensaries and cited empirical examples. Also the UCLA study relied on available criminal data for their model, which depends on reported criminal activity. It stands to reason that some dispensary crimes may not have been reported due to intimidation or threats of future violence against the owners. This type of information could be available to police through word of mouth on the streets or from confidential informants and other ‘unofficial’ sources. The quasi-legal nature of marijuana possession may also influence whether or not victims end up cooperating with authorities. One might believe that telling the authorities that one deals in marijuana, even if only medical, will lead to greater police scrutiny, which could hurt their business.
Another study concluded that criminal activity actually increased for localized areas in LA in 2010 after a dispensary closed versus areas where dispensaries were still in operation.49 The biggest problem with this analysis is that there is no acknowledgement that abandoned infrastructure attracts more criminal activity than non-abandoned infrastructure. The authors point out that decreased foot traffic could be a reason for the increased crime rate; however the context of this statement is with respects to the existence of a dispensary not to the existence of a non-abandoned building. Therefore, it cannot be concluded from this work that such an increase is unique to a dispensary shutdown versus a housing foreclosure or other commercial operation.
A problem for both positions is that the available information only encompasses medical marijuana suppliers, which represent only a small piece of the marijuana consumption pie. One could understand these dispensaries being ignored by cartels because the effort required to launch a violent attack against them is not efficient because of the small size of their clientele and the additional exposure and risk the cartel would incur from law enforcement by launching the attack. Basically the cost benefit ratio for a cartel-based assault on a medical marijuana dispensary does not make sense. Therefore, criminal activity against medical marijuana dispensaries would be the result of non-cartel related individuals, largely individual criminals.
Legalization would open the entire marijuana consumption pie to these dispensaries/retail outlets and there is no clear understanding how the cartels would react, especially if these new legal operators started undercutting cartel price leading to a reduction in cartel profits. Using foreign countries as a means of comparison is inappropriate because of differing levels of cartel penetration and total profits between those countries and the United States. While it is difficult to chart a precise reaction, it stands to reason that cartels will not simply decide that dealing in marijuana is no longer worth the effort and withdraw from the market without some form of response; whether that response is violent or non-violent is unclear. Unfortunately some proponents seem to think this is exactly how cartels will respond, run home with their tails between their legs.
Third, all legal operators in a given area would have to cooperate with each other, basically to the level of collusion, and set very similar prices because if one operator attempted to undercut the other operators then that operator would more than likely receive a majority of the cartel business (assuming that the price floor is achieved and is the dominant element in consumption). Even with the unknown reaction factor of the cartels, a single focal location for redistributed consumption would make a more attractive target for cartel violence than multiple locations sharing the redistributed consumption. If the cartel were to violently attack a legal operator the payoff would be considerably less with greater distribution forcing a longer campaign against legal operators to develop effective results. Similar distribution also should reduce the total amount of fortification/security that legal operators would require to protect their business reducing overall capital and operating costs. However, would such collusion be viewed as legal?
Fourth, the sheer economic toll taken by legal operators in the early stages of the legalized process may be too much. As stated before, private non-cartel based dealers are going to take a significant portion of the market away from both cartels and legal operators. However, cartels will only be hurt by private individuals becoming self-suppliers because a vast majority of the existing supply comes from cartels. Therefore, legal operators will have a smaller volume of customers than those who currently consume marijuana. This drop in volume would reduce revenue regardless of the type of competition that occurred with the cartel and other legal operators more than likely resulting in an annual loss for the supplier; how long these losses occur and what type of ‘rates of return’ new legal operators have in a legal environment are currently unclear due to many uncertainties. Ironically, legal operators would actually favor the increased consumption of marijuana that is expected in a legal environment.
The fifth problem with the price floor method is that it will not produce very much tax revenue because both the base price and the tax percentage applied by local, state and federal government need to be low enough so the floor can be reached. In fact it appears that there would be little means to establishing a large tax base for marijuana sales. Either retail organizations would attempt to produce large tax bases, which would fail to produce many sales due to price undercuts by private dealers and cartels or retail organizations would heavily undercut prices, along with low taxes from government in cooperation, in effort to maximize the amount of sales in partial effort to reduce cartel business. On its face tax revenues and reduced influence of cartels appear to be in direct contradiction to one another, thus proponents need to determine whether they are more interested in attempting to collect tax revenue or reduce cartel influence. Interestingly enough it is not much of a choice because one option is self-defeating and the other option is unlikely, but announcing that both are possible in a legalized environment is inaccurate and inappropriate.
Along with dramatically increased tax revenue, which the above discussion has proven to be a poor point of argument because the analysis supporting a large tax base is flawed, another impassioned argument made by proponents is that the drug war has failed and the supposed massive sums of money spent by the government to conduct it should be diverted elsewhere. The two pieces of information that are widely utilized to justify this argument are the total annual expenditures both of the DEA and local authorities enforcing the drug war and the general perceived efficiencies of that enforcement.
In most of the written arguments made by proponents there is little analysis of the utilized statistics, thus a concern in these arguments is that proponents could be falling into the statistics trap where one simply cites favorable looking statistics without appropriate analysis to identify whether or not those statistics are applicable for the point of argument. Part of the problem is that available statistics can be inconsistent creating unequal points of argument.
The enforcement efficiency argument is made along the lines of marijuana availability and the percentage of users that receive punishment. For example in 1987 it is thought that approximately 25 million individuals used marijuana only 378,000 arrests were made, an enforcement percentage of 1.5%.50 In addition some proponents believe that the lack of enforcement to reduce the access to marijuana is an element of failure. For this point proponents cite survey information from ‘Monitoring the Future’, an organization that has a long-standing role of surveying teenagers regarding their marijuana use. This survey reports that when comparing the responses given by teens surveyed about the availability of marijuana there has been no significant change in availability over the last 30 years (between 1975 and 2005).51 Proponents believe that no change in access to marijuana despite an aggressive anti-drug policy is an aspect of failure for the drug war.
For proponents this survey information is presented as a means to provide support for the argument of ineffective drug prevention/enforcement, but those who see it that way are not taking relative nature of scale and overlap into account. The survey results only conclude that marijuana is available, but do not conclude how much is available. Therefore, this information does not take into account how stressing the marijuana market would affect availability because individuals are only asked ‘could you get some’ not ‘how much could you get if other people were also getting some’. Thus, marijuana supply could be limited in a stressed environment (where a lot of people are trying to purchase at the same general time) due to enforcement limiting overall availability over the non-stressed environment portrayed in the survey. Part of the problem with interpreting this type of information is that the expectations of proponents come off as ‘loaded’ or unrealistic stating, typically in boisterous and patronizing language, that because marijuana hasn’t been nearly eradicated from society like the measles (at least before some people stupidly stopped vaccinating their kids) that existing marijuana policy has been an utter and complete failure.
Some proponents seem to believe that if a law does not prevent a vast majority of individuals from taking the action then it should not be a law. As discussed earlier laws are not designed with a goal of 100 percent prevention of a given act, but are designed to provide a means to balance negative externalities with punitive countermeasures. Even if one were to argue that an absolute scale is enough to justify legalization, relative comparisons make such an argument difficult. Suppose the cited 1.5% enforcement rate was viewed as justifiable for legalizing marijuana; basically certainty of punishment was not high enough to justify the law. If this is case then proponents need to also argue that speed limits should not exist either because the certainty of punishment rate for that crime is even lower than smoking marijuana. Also what enforcement percentage would be defined as appropriate for continuing enforcement marijuana and how would an individual justify that particular number as not arbitrary?
As discussed previously both proponents and opponents citing non-current information creates problems because marijuana arrest rates have risen sharply since 1990 with more than 80 percent of those arrests classified as possession with no intention to distribute. Rates of arrests jumped from 89 per 100,000 in 1991 to 223 per 100,000 in 1997 to 250 per 100,000 in 2008, so over that 17 year period arrest rates increased by 280%.52 This new ‘crackdown’ on marijuana has resulted in a new arrest/use ratio of 2.7%. In addition to the increase in arrest rate, another factor that may affect the enforcement percentage in marijuana is that a number of police only cite without booking individuals in possession of less than 1 ounce of marijuana, so those ‘busted’ when holding a joint are typically not counted in the arrest statistics. This practice would skew the enforcement percentage to a lower number than actually exists empirically. This increase in arrest rates has also created an interesting, somewhat contradictory, change in the proponent message in that previously they stated that marijuana should be legal because not enough arrests were being made and now they state that marijuana should be legal because too many ‘needless’ arrests are being made.
Unfortunately for proponents the total expenditure on enforcement of marijuana laws is not as high has they would like people to believe. One of the biggest problems with discussing enforcement efficacy is the reliance on financial expenditure. Multiple studies have been conducted to evaluate how much money the government spends enforcing marijuana laws and the results of these studies have developed a very wide range of annual enforcement costs. For example in California the range that the government spends on enforcement marijuana laws has been estimated from 203 million to 1.867 billion dollars.53-55 Not surprisingly marijuana legalization proponents usually cite values from higher in the range and marijuana legalization opponents usually cite values from lower in the range. However, any rational person realizes that these values are heavily influenced by the assumptions made by those authors who create them due to the extrapolation required from existing data. This issue of assumptions is a significant problem in the analysis of Jeffrey Miron, in both his 2005 and 2010 analysis (in 2005 the estimate was 981 million and in 2010 the estimate increased to 1.867 billion)54,55 both having been heavily cited by proponents because it suggests very high enforcement costs.
The incredible range in enforcement costs extends from the differences in two principle assumptions. The first questionable assumption is that studies that produce a higher number, like Mr. Miron’s, assume that the entire law enforcement budget is used to make arrests, thus their enforcement/arrest ratio is naturally high and divided solely between marijuana arrests and other types of arrests. Unfortunately this assumption is not practical in two major aspects. First, law enforcement does more than arrest people they conduct emergency responses, exercise traffic control, initiate and conduct investigations, etc. Therefore, to assume that the entire enforcement budget is utilized in making arrests is not appropriate.
Second, all arrests are assumed to have the same enforcement costs, which is incredibly unrealistic. It is in no way rational to presume that a marijuana arrest stemming from a traffic stop is similar in cost to initiating a sting operation against a drug dealer, a RICO investigation or a murder investigation and arrest. The fact is that most marijuana possession only citations and/or arrests are simple clean-cut misdemeanors, which make them less expensive to execute than most other misdemeanors and almost all felonies.
The second questionable assumption is similar to the static average arrest assumption, but is instead applied to judicial enforcement and costs. Basically higher enforcement values assume that adjudication and incarceration costs are much higher for marijuana cases because a simple average is used, as discussed above, where the total costs for drug adjudication are multiplied by the ratio of marijuana cases versus the total number of drug cases. Like the arrest assumption, this assumption is also not appropriate because more marijuana cases result in plea deals in lieu of actual trials, severely reducing trial and incarceration costs because it is easier and simpler for both sides. The court dockets are already too crowded with other cases so pleading out non-violent offenders is useful for the court and the marijuana user rarely has the ability to put forth a defense where he/she can convince a jury of reasonable doubt. Users that do go to jail go to minimum or medium security facilities, unlike certain other criminals.
A third assumption that is of less importance, but still holds relevance, is the issue of fines administered against convicted drug users. Some studies include fines that convicted drug users pay to offset some of the costs of enforcements. Some undervalue the total collected fine amounts while others make the mistake of not including collection fees that are associated with these fines because not everyone who receives a fine pays it in a timely and obedient fashion. Overall when taking these assumptions into account it appears that lower range estimates regarding total cost of marijuana enforcement are more accurate than higher range estimates.
A lack of communication regarding what is serious and what is not serious is a problem between proponents and opponents. Proponents constantly cite that a vast majority of marijuana related arrests are only possession related (upper 80 percents).56 However, how serious is this issue? Research demonstrates that while the sole possession arrest figure makes up a large proportion of marijuana citations/arrests, the sole possession conviction rate makes up only a small proportion (3-15%) of marijuana convictions.57 The large proportion of marijuana convictions involve intention to distribute marijuana and its cultivation. Therefore, the negative impact of marijuana sole possession arrests is quite limited with incarceration rates at a much smaller percentage relative to the incarceration rates of other marijuana related crimes. Part of the problem is that proponents don’t even seem to agree among themselves what is a serious marijuana crime versus a non-serious marijuana crime.
Another popular talking point for proponents is eliminating marijuana laws allows authorities to divert police resources to address more ‘serious’ crimes. While the principle of this statement is correct, its efficacy is in question. The usefulness of reassigning these individuals is contingent on their anticipated productivity. Unless there are a large number of unsolved more ‘serious’ crimes with existing evidence trails that would result in viable suspects and arrests through the use of this additional manpower, reassignment personnel is irrelevant. Basically a division captain would have to state the following, “Well I would love to follow this evidence to identify and arrest this unknown serial rapist, but my officers are too busy arresting marijuana users.” Think about that statement for a little bit, no self-respecting police captain would ever divert resources to chasing down simple non-dealing marijuana users over addressing a ‘serious’ crime. Yes, authorities only have a limited amount of manpower and other resources, but to insult them by implying they don’t understand enforcement hierarchy is shameful.
It is important to note that the law enforcement savings estimations made in all studies appear to be inaccurate in that they appear to assume that all enforcement costs will be saved. For almost all legalization proposals the legality of marijuana is not absolute. There are possession ceilings, typically one ounce, there are age restrictions, 21 years and older, and there are restrictions on the size of growing spaces and/or amount that can be cultivated among other things. If these regulations are going to be enforced how will law enforcement do so without a budget? Based on the typical marijuana user with a number being under the age of 21 there is little reason to suspect that a significant unknown percentage of the existing enforcement budget will continue to be applied to these new regulations.
In addition to the quantitative element of enforcement there is a qualitative element that is not typically discussed by legalization proponents or opponents. First, as previously mentioned there are two means of comparison to judge the effectiveness of enforcement: absolute and relative. The legalization community exclusively uses absolute comparison establishing an abstract floor for how much drug use should exist and compares whether or not it is met. These individuals rarely address relative comparison, which would ask about criminal behavior and drug use in the current environment versus criminal behavior and drug use in a completely legal (or decriminalized if that is all one wants) environment. In the relative comparison if drug use is significantly reduced in the current environment then the DEA (etc) are doing their jobs effectively, if it is not then they are not doing their jobs effectively.
To this point some proponents, including NORML, argue that current marijuana laws do not deter marijuana consumption. They back this claim by citing survey information that demonstrates that individuals convicted for marijuana related offenses exhibit no significant change in their rates of interaction with marijuana after their arrest and, if applicable release from jail.58 Unfortunately this logic is flawed in a similar way to the San Francisco-Amsterdam study.
The main point of deterrence is to demonstrate to non-violating parties the penalties of violating a law through executing that punishment against a violating party thereby increasing the probability that those non-violating parties remain non-violating parties. Therefore, to inquire about the influence of deterrence to those who have already violated the law is not a quality method of analysis. That would be more of an issue of rehabilitation over deterrence. With regards to evaluating deterrence on the actual targets, survey information is quite limited but multiple studies emphasize that concern of arrest and the corresponding detriments are significant in deciding not to consume marijuana.31,59 In fact there is reason to believe that this deterrence affect is increasing possibly due to the increased number of marijuana arrests.31
Understanding elements that currently lead non-users to refrain from using in an illegal environment can help policymakers estimate how usage rates would change in a legal environment independent of price. Some models try to estimate this change, sometimes called causal impact, by looking at the response when the Dutch decriminalized and trying to separate price elasticity demand changes from causal impacts. Not surprisingly the accuracy of these estimates are questionable most notably due to cultural differences between the Dutch and Americans and the different environments between decriminalization and legalization, especially with relation to allowing private citizens the ability to cultivate.
What would be useful to develop some semblance of understanding for this preventative effect would be more large-scale survey information of non-marijuana users identifying why they do not consume marijuana and use this information to somewhat extrapolate how the causal impact of use will change in a legalized environment. While some of this information already exists,31,59 more would be better. This polling information is more accurate than self-reporting polling information pertaining to individuals who use illegal drugs because there is no fear of the information being used against them in some legal manner.
One side point that receives very little attention is how legalizing marijuana will change the nature of recruitment of confidential informants (CIs) for police. A common method of CI recruitment comes from flipping young individuals who were arrested for minor drug charges, usually marijuana possession and marijuana possession with intent to distribute. Most CIs are able to produce useful information leading to additional higher profile drug arrests of more connected and larger-scale dealers. A legal marijuana environment would significantly reduce the recruitment ability for CIs increasing the probability that these higher-level dealers continue to evade the law. However, some would argue that this method of CI recruitment is akin to exploitation and its elimination would actually be a good thing. The opinion one holds on the issue of CIs largely involves what cost is allowable for a certain benefit and that parameter clearly differs from person to person, yet unfortunately that opinion will be clouded by personal bias regarding the opinion on drug legality in general.
Also the issue of scale is interesting because for all of the billions and billions of dollars that legalization advocates frequently cite that could be derived from tax revenue and estimations of total U.S. marijuana market size between 10 and 17.1 billion dollars per year60,61 proponents seem to treat the 10,800 or so DEA employees, (5,500 Special Agents, 700 Intelligence Analysts, and 4,600 support personnel) and their 1 billion dollar ‘Breaking foreign and domestic sources of supply’ budget as an enormous amount; in reality the amount is rather limited relative to the scale, both in suppliers and users, that it is competing against.
It could be argued that the reason the DEA is ‘ineffective’ at managing the marijuana problem on an absolute scale is that they are not provided enough resources to be effective and those resources are divided among all drugs not just focused on marijuana. It is similar to telling a general, ‘The enemy has ten M1A1 Abrams you have two M1A1 Abrams we expect total victory’… and then sacking the general for not meeting expectations because the enemy is not incompetent. Wouldn’t it be more appropriate to supply the general with at least six M1A1 Abrams before those around him brand him as a failure? It is to say that there may be other means to support marijuana legalization, but inherently citing the drug war investment with the presumption that it is more than enough to win is not a plausible way to make the argument.
One necessary issue that must be addressed concerning legalization ironically receives little attention from proponents is how to address changes in the medical care, both in long-term marijuana treatment and short-term treatment of single-event illnesses in which marijuana may play a part. Numerous proponents implore society that users who are perceived to have a problem with the amount of marijuana consumed (basically addicts) should be treated and educated instead of incarcerated. Unfortunately these very same proponents in their treatises extolling the rational behind legalization rarely discuss the methodology and logistics involved in how this treatment and addiction will change. As discussed above logic and empirical evidence from other countries establishes an exceedingly high probability that marijuana use will increase in a legalized environment, thus increased use will lead to an significantly increased probability for more addicts. So how does a legal environment affect not only the emergence of new addicts, but also affect the ability of existing addicts to recover and eliminate their addiction?
Unfortunately marijuana addiction is on the rise increasing in number of individuals seeking treatment from 92,500 in 1992 to 322,000 in 2008.52 The biggest increase occurred in California with an increase from 7,300 in 1992 to 32,00-35,000 in 2008.52 It must be noted that there is little information pertaining to stigma aversion changes from 1992 to 2008, which could change the probability that addicts seek treatment. Basically in 1992 there may have been a similar number of addicts as there were in 2008, but the 2008 environment may have been easier, for some reason or other, for individuals with marijuana addictions to seek treatment.
Looking at both the 1990 and 2010 U.S. censuses as marking points for 1992 and 2008, the U.S. population increased by slightly over 50 million in that 20-year period. Based on the fact that there is typically a specific age group for a vast majority of marijuana use (usually 14-30) assuming that the marijuana consumption rate of 42 percent62 was cut by a third (two-thirds of those individuals entered this age range during the time period), thus over this time period approximately 14 million individuals became new marijuana users for some period of time. Again it must be noted that it is difficult to conclude how much marijuana these new users consumed because a large majority of casual users will not become addicts, but it stands to reason that a vast majority of these new treatment cases were born of new users becoming addicts over existing addicts electing to receive treatment. Therefore, it does make logical and empirical sense that increased consumption in a legalized environment will lead to a greater number of marijuana dependent individuals.
Proponents may argue that this accretion is not entirely accurate because in a legalized environment addiction rates could be controlled through effective education and treatment programs. Unfortunately there appears to be some holes in this reasoning. Few details have been given regarding how this education program would be administered to reduce addiction development and how it would be superior to existing education programs. The chief problem is that few individuals are ignorant of marijuana with regards to its general potentially addictive affects and those who are ignorant are ignorant by choice not for lack of information. Education programs for illicit drugs already exist and are characterized by proponents as ineffective. From an education standpoint it is the specific chemical mechanisms that induce addiction that are still under further study not the fact that taking illicit drugs can cause negative biochemical changes in the brain.
To those that do not believe that marijuana is addictive, their opinion would be in contrast to the current Diagnostic and Statistical Manual of Mental Disorders, 4th ed (DSM-IV) and the proposed fifth edition that is currently under review and the presumed 4.3 percent of Americans with such a dependence.63,64 Diagnostic, laboratory, epidemiological and clinical studies have all clearly demonstrated marijuana born dependency and that it has a negative affect on afflicted individuals.65-68
While less severe in total damage, marijuana dependency is very similar to other substance dependence conditions resulting in continued near-daily use and symptoms of withdrawal upon ceasing use.65,69 In comparison to the higher tier drugs approximately 9 percent of those who consume marijuana develop dependency versus 15 percent of cocaine users and 24 percent of heroin users, but due to larger usage numbers for marijuana, its dependency is at least twice as prevalent versus these higher tier drugs.65 Also there is the uncertain issue of how many addicts overlap their dependencies on multiple illicit drugs, but marijuana appears to be the most common choice when multiple dependencies are demonstrated, especially for those seeking treatment for stimulant or opiate dependence.64,70,71 This associated marijuana use is thought to increase the probability of relapse for those seeking treatment of other drug dependency conditions.72
The main methods of treatment for marijuana dependency are more psychological than pharmacological. The three most popular methods are contingency management (CM), motivational enhancement therapy (MET) and cognitive-behavioral therapy (CBT).65 CM is basically an incentive system where a patient is rewarded for refraining from addictive behavior and following specific regulations outlined in their treatment plan. The idea of incentives is to present a tangible element to aid recovery over the more intangible ‘better health’ reward of ending the drug behavior. CBT addresses the addictive behavior through a goal-oriented stepwise systematic process. It typically consists of motivational self-talk, addressing coping strategies through neutralization of negative thoughts, relaxation and changing maladaptive beliefs. MET involves clarifying ambiguous uninformed thoughts, usually viewed as adolescent, using positive elements to provide a feeling of self-control and focus to break the addiction. Addressing an individual’s sense of willingness of change is thought to circumvent defense mechanisms generated through confrontation.
While these treatments do demonstrate significant decreases in drug use and symptoms of dependence there is little separation or individualization information regarding treatment effectiveness between these treatments.65 Also despite the decreases in drug consumptions and dependence about two-thirds of those treated (mostly teens and young adults) appeared to remain dependent on some level still having substance-related symptoms.73
At a pharmaceutical level orally injected THC and nefazodone have demonstrated promise in treating the biochemical affects of associated with marijuana dependency.74,75 Not surprisingly treatment with THC, a chief element that leads to marijuana dependency, reduced cravings, anxiety, feelings of misery, chills, insomnia and other withdrawal symptoms.75,76 Therefore, it is difficult to conclude how much this strategy affects actual dependency. Interestingly enough the placebo effect with regards to oral THC could have some influence in addressing dependency.76
The type of treatment is only part of the treatment issue; the ability to begin the treatment process through placement in the appropriate program is also critical. There is an immediate concern with placement for a legalized environment in that a majority of drug treatment admissions (58%) are administered through judicial referrals.77 Basically a majority of individuals only go into treatment for marijuana dependency because they are arrested for possession and ordered by the court, normally as part of a plea agreement, to attend treatment. Obviously legalization eliminates some part of the pool of individuals getting arrested for possession and in turn significantly reduces the number of individuals that would be treatment. Legalization only eliminates a portion of the pool of referral based treatment candidates because some legalization proponents do want to keep underage, under 21, marijuana consumption illegal, so these underage users can still be arrested for possession and could receive treatment referrals where appropriate.
The problem with removing the criminal based referral driver is that marijuana dependency is similar to other forms of dependency in that a majority of the time the user does not believe he/she is dependent. Even those that do perceive dependency typically report that they function normally enough that their dependency is not a problem, thus they do not need to seek treatment.65 This mentality is a problem that faces treatment in that many individuals regard the negative affects of marijuana use with little severity, thus they view the goal of treatment as reducing their intake not eliminating it, which could lead to relapses due to reliance on simple will power and the expansion of future health problems most notably mental illness.78
A further concern with the future of treatment is that legalization will make avoiding temptations, through more convenient access to marijuana, more difficult increasing the probability of relapse. Lower prices at most of the easier access points will also increase the probability of relapse. In some respects in a legalized environment the neurological cues for marijuana addiction will rival that of nicotine addiction. Therefore, one could attempt to apply the same behavioral strategies seen in quitting smoking to quitting marijuana consumption, but without the pharmacological aids that exist for those trying to quit smoking these strategies will not be as successful for marijuana dependency.
Another concern is how rising addiction rates with affect the social structure of society. Addiction in general, whether it is alcohol addiction, heroin addiction or marijuana addiction have significant negative repercussions on people other than the addicts, especially for immediate family members. These detrimental effects may result in reduced non-marijuana economic consumption due to lost purchasing power (lost job), imprisonment for some other non-consumption based crime or even death. A somewhat unique problem in marijuana addiction for chronic users is a significantly elevated probability of ‘arrested development’ that causes further complications in interpersonal relationships, individual growth and societal productivity.
With all of these concerns for those who should receive treatment in a future legalized environment, one issue is to ask whether or not the number of non-treated individuals will increase. Treatment occurs on two levels: first an individual is arrested on a drug charge and the court orders that individual into treatment and second the individual voluntarily enters treatment. Due to the divisional legality construct of marijuana in a legalized environment it stands to reason that court referrals for users over 21 will drop to almost zero and under 21 users will increase because users will increase (according to proponents the law does not stop minors from acquiring marijuana now so it will not in a legalized environment). Self-admissions into treatment are almost guaranteed to increase both due to expansion in treatment information and the increase in the number of overall users. Treatment information should increase because in a legalized environment it would be easier for groups to advertise treatment options without fear of police intervention.
However, this increase in number of individuals that need to and are seeking treatment will cause bottlenecks because the current system has difficulties recruiting, training and retaining quality staff and physicians. Other more minor problems are inconsistent capital, insufficient treatment availability to meet demand (not enough facilities) and slow transition between laboratory theory and empirical practice. All four of these elements reduce treatment effectiveness, an efficiency reduction that will be lowered further with a greater influx of patients then new infrastructure (if it is built at all) can accommodate.79,80
The availability of the proven treatments for marijuana disorders—MET, CBT, and CM—is low, even though evidence of their efficacy with substance dependence problems with both marijuana dependence and other substance abuse has been documented for many years. Although the three treatments are mainstream among treatment researchers, few community-based substance abuse counselors are currently trained to provide quality MET-CBT, and treatment providers remain ambivalent about CM interventions because of their cost and CM’s basic premise of providing incentives for abstinence.81,82 This is an aspect of the problem with the transition between laboratory to empirical practice.
Another issue that really is not addressed by proponents is how the increased marijuana consumption will affect healthcare costs and the system in general. From a logical perspective proponents would argue that legalization would eliminate both the impure and synthetic drugs from the supply chain through regulation, thus overdoses and severe negative reactions would decrease creating less burden on the healthcare system. Opponents would argue that increased drug use stemming from legalization would increase the number of overdoses and acute negative reactions resulting in a greater burden for the healthcare industry. Opponents are probably more correct for while the consumption of impure and synthetic drugs have higher proportional rates of emergency care, their use makes up only a very small percentage of the total usage amount.
Looking at some of the scant research on the subject suggests that for a 10 percent decline in marijuana price, marijuana related emergency room (ER) visits will increase by 2.65-11.9 percent.83 Suppose marijuana price drops 50 percent, a reasonable assumption in a legalized environment, assuming that the 10 percent estimate is linear (not a great assumption, but information is generally lacking) then marijuana ER visits will increase 13.25-59.5 percent. Note that this increase does not include usage increases derived from non-price factors, so an even greater increase can be assumed. In fact some estimates for the total increase ranges from 29 to 131 percent.77
The Drug Abuse Warning Network (DAWN) estimates 374,435 ER visits in 2008 were attributable to marijuana consumption with an additional 50,192 ER visits attributed to marijuana suicide attempts or detoxification.84 They also estimate a 33% increase in visits due to marijuana consumption from 2004 to 2008.84 Clearly an increase in consumption seen in a legalized environment will place significant pressure on ERs because with increased consumption will come increased ER visits. Some studies have estimated cost of these new visits, but unfortunately estimating total costs to taxpayers due to these increases is quite difficult because of differing cost estimates per state and questions to whether or not the new ER patients have government subsidized health insurance (assuming no elimination or change in the Affordable Care Act). Note that some proponents have questioned the conclusions of DAWN expressing concerns that the information acquired could not directly associated marijuana consumption with the need to visit the ER. While true, it is foolish to suggest that the consumption of marijuana did not play some role in forcing these ER visits whether directly or indirectly.
A secondary issue apart from direct economic costs is how these increased visits will affect the turnover in the ER. A vast majority of marijuana related health problems are either very long-term lung and brain damage (the extent of this damage is constantly debated in the scientific literature) or acute health responses that are either preceived to require immediate medical care due to uncertainty (i.e. violent stomach aches which would abate naturally) or actually do require immediate medical care (i.e. overdoses, negative mix reactions, etc.). Therefore, primary care physicians will not typically play a role in addressing direct health problems stemming from increased marijuana use. While increased marijuana use will not exaturbate the growing problem of a lack of primary care physicians, it will exaturbate the issue of ER turnover. ER turnover has been a significant problem in society for over a decade in a large number of ERs. Overcrowding and a lack of resources have bottlenecked most ERs and pushed wait times before treatment to multiple hours, which hardly allows the ER to live up to its namesake. These additional ER visits have direct and indirect costs.
As discussed above any estimate of the direct costs associated with these additional marijuana related ER visits is difficult due to a wide range of variables. However, another additional variable is the inclusion of a weighted cost constant that will increase all ER visits in both time and cost due to the attainment of a point of saturation. Once this point of saturation is attend ER treatment costs will expenentially increase for each visit or worse-case scenario some individuals will not receive any treatment, which may even increase the rate of death in some ERs. It is also difficult to predict whether this increase in marijuana related visitation will level off as time progresses (decreasing slope that eventually flattens out) or increase as time progresses (increasing slope for the short-term to a decreasing slope that eventually flattens out) because will the former scenario rule due to new users overdosing due to lack of experience and eventually getting that experience or will the increase in total consumption be the limiting factor?
Part of the concern with treating marijuana related conditions is that it is not alcohol. There is a lot of scientific information about the metabolism of alcohol and the beneficial and detrimental affects from that consumption and metabolism. This information and the corresponding medical methodology is not available for marijuana. It is difficult to determine how intoxicated an individual is and residual effects due to uneven patterns of metabolism could last far beyond the affects of alcohol. Overall there a number of important issues in healthcare that are affected by marijuana legalization that proponents have not addressed.
Another frequently used argument for reduction of criminal penalties in marijuana use is made in the name of harm reduction. Harm reduction is viewed through the rational lens of reducing collateral negative consequences associated with a given action. Typically harm reduction techniques are applied when those collateral consequences are a greater negative than the detriments associated with the actual action itself. One of the most famous methods of harm reduction is the distribution of clean unused hypodermic needles to heroin and other injecting users and offering means to discard used needles. The intent of the program is to reduce the probability that heroin users share needles, which increases their probability of transmitting various blood-born diseases like HIV and Hepatitis C. Reducing these conditions are important because acquisition of these diseases is typically more detrimental to the health of the user than the heroin itself and are also detrimental to society because of the costs associated with treating them.
Some have criticized the clean needle program as a method to encourage drug use, but such criticism is unwarranted because clean needle access is not the limiting factor in heroin use nor is it a motivating factor. Current users are going to use heroin whether it is from a clean needle or dirty needle. No rational person who does not use heroin will decide to begin use because of the availability of a clean hypodermic needle. For example no non-user would walk past/into a needle dispensary, take a needle and say to him/herself, “Gee, now I need to go find some heroin to inject into my body.” In large respects the distribution of clean needles is an ideal means of harm reduction, significant benefit and no/little detriment. However, one positive change that could be made is that information regarding treatment facilities for heroin could be made visible near dispensaries, so if a user wants to stop they will have a place to start.
Those who support harm reduction with regards to marijuana use commonly identify the criminal penalties associated with its use as the ‘greater detrimental collateral consequence’ because it provides the stigma of being a criminal, the financial and opportunity costs of court, the uncertainty of having to purchase from less reputable distributors and negative influence upon various personal relationships beyond marijuana use. Therefore, these individuals argue that decriminalization or legalization should be applied to eliminate this collateral consequence. Unfortunately individuals who hold this viewpoint do not appear to consider the detriments that exist with this form of harm reduction nor the actual scope of harm reduction.
Elimination of criminal penalties associated with possession and use of marijuana will increase the number of users. Recall that earlier it was discussed that legalization would remove three barriers, and possibly a fourth, that prevent non-users from becoming users. Decriminalization only removes the first barrier, those who refrain due to the potential punitive penalties associated with use. Marijuana price is not significantly lowered through decriminalization because distribution and cultivation, the two major elements that influence price, remain illegal. This use barrier influence will result in more users, but the increase size is unknown because some are influenced by criminal penalties not to use.31,59
This increase in users is compounded by individuals under the influence of drugs having a higher probability of committing criminal actions.3,4,57 This is a concern because decriminalization of marijuana only focuses on harm reduction of the user, but not harm reduction of society; applying harm reduction to society is the chief point of harm reduction. Individuals who discuss harm reduction of marijuana in this sense typically do not consider the potential victims of the criminal behavior that these users engage in and how these victims are affected. Proponents that actually consider this element, a number that does not appear to be large, try to account for it by arguing societal savings, like very large decreases in enforcement costs and very large increases in tax revenue, which would be valid if those societal savings were valid, but based on the above analysis this validity appears incorrect. Without the ability to use these societal savings as an offset for the increased criminal behavior against new victims the scope of harm reduction becomes selfish and inappropriate, only looking at the user not society.
One possible point of discussion with harm reduction could involve legalizing marijuana as a point of use, but if any individual was arrested and subsequently convicted of a crime with marijuana in his/her system additional time would be added to the sentence. This addition of consequence to the sentence would account for the increased probability of committing criminal activity while under the influence of drugs. The exact system would have to be further deduced through legislation. Such a system would be akin to the additional time for committing a hate crime because of the negative externality probability increase against the particular victim of such a crime.
Another aspect of marijuana based harm reduction is that decriminalization or legalization may be too great of a response to accomplish the goal of lessening the alleged collateral damage from the criminal prosecution. Looking at laws related to marijuana possession the penalties in most states are rather muted with normal punishment being a fine and seizure of the drugs. The complication in these penalties largely comes, when speaking of ‘innocent users’, from when the charges are escalated from ‘possession’ to ‘possession with intent to distribute/sell’. Note that these charge hierarchies are why so many arrests are made involving possession because one has to be in possession of marijuana if one is trying to sell or transport it.
Due to marijuana charges being based on amount, not actual intent (one literally does not have to be in the process of selling) some who have no interest in selling drugs have still been charged as dealers due to ignorance. Therefore, one means of appropriate harm reduction is to ensure that all users have information regarding the threshold amount between possession and possession with intent to distribute to significantly reduce the probability that non-dealers are charged as dealers. This application of harm reduction is similar to the needle exchange program in there is significant benefit at little/no significant detriment to either the individual or society.
The final piece of discussion on legalization is how would it be regulated. One strategy to better understand regulation in a legal environment is look at how states address medical marijuana regulation. While large amounts of attention are paid towards California when it comes to medical marijuana perhaps eyes should instead fall towards a state like Colorado. Due to the lax government regulations, especially for how long medical marijuana has been legal at a state level, California has become a ‘Wild Wild West’ of sorts for medical marijuana whereas Colorado is a much more efficient and effective distribution environment. Dispensaries in Colorado must have their entire establishment under video surveillance where the feed is also transmitted to the offices of the Colorado Medical Marijuana Enforcement Division. Each plant that is grown by the dispensary for commercial use is tagged with a radio frequency identification (RFID) chip, employees must officially sign in every time they enter the stock room to acquire inventory and transport of all marijuana shipments follow a path that needs to be pre-approved by the state enforcement division among other things.
While such regulation is appropriate for a medical marijuana environment where non-medical use is still illegal, such a level of regulation may not be needed in a legal environment. Most pro-business individuals would claim that to demand such regulatory steps in a legal environment would place the legal retail establishments at a significant disadvantage versus non-licensed competition. Such a claim would not be unreasonable, but looking at an effective level of regulation is a good place to start to determine what is appropriate for a legal environment.
One significant problem with the manner that legalization proponents are proposing legalization, through ballot initiatives, is that its methodology is akin to putting the cart in front of the horse. The initiatives set forth a basic skeleton of regulations, regulations that would be better developed through the legislature. In fact there is a correlative precedence in that most of the state-based medical marijuana legalization that occurred through voters have resulted in significant problems created due to a lack of defined regulations and their application. For example Colorado had some significant problems before the legislature got involved and created the system that now exists. California has had numerous problems with unregulated legal/illegal dispensaries, which have resulted in numerous closures and court challenges.
In these ballot initiatives proponents take what could be regarded as the easy way out and simply say that it should be regulated similar to alcohol. Others believe that mimicking the decriminalization policy of the Netherlands is appropriate. While there are certain elements in both of these strategy regimes that would provide useful regulation tools neither address the most important regulatory element in marijuana legalization, cultivation. As previously mentioned very few individuals take the time to brew their own alcohol for commercial sale because the capital and transport costs associated with such a venture significantly diminish an already razor-thin profit margin. This problem with profit margin is significantly reduced for private marijuana growers both from a sale price and reduced capital cost standpoint. Looking towards the Netherlands for direction cannot help because their decriminalization regulation has a distinct problem with cultivation because it is not legal for private citizens or coffee shops.
The back door problem relates to the inability of coffee shops to cultivate their own marijuana supplies. ‘Back door’ is a slang term that refers to the supply. Current Netherlands law only allows a maximum supply of 500 grams in a coffee shop at a given time. When marijuana decriminalization was authorized in 1976 a vast majority of cannabis, largely in the form of resin, consumed in the Netherlands was imported.85 However, over the decades advancements in cultivation techniques have flipped the situation with domestically grown herbal cannabis accounting for a majority of the consumed marijuana.2,85
However, decriminalization did not originally include the widespread development of coffee shops. This development along with the rapid increase in domestic cultivation has lead to authorities attempting to limit growth through enforcement against domestic growers over controlling resin import. Basically authorities are concerned about marijuana flooding the Netherlands, which could destabilize current regulations. Some believe that the crux of this problem stems from supply being illegal, not regulated. They believe that allowing coffee shops the ability to cultivate their own supply and keeping all other cultivation illegal should effectively address a large part of the problem.
A number of theoretical problems associated with legalization are significantly compounded by allowing private citizens the ability to grow marijuana legally, yet all of the major forms of legislation pushed by legalization proponents in various states allow for private growth. As previously mentioned to argue that legalization will include significant drug enforcement savings is only valid if at least regulatory elements are enforcing large point-source locations. In theory these savings will be significantly reduced if regulatory officials and police have to monitor all possible private growth locations as well as point-source locations. In addition as previously discussed the ability of private individuals to grow their own marijuana heavily impacts the customer base for new legal retail point of sales, which hurts their viability and hurts tax revenues. Therefore, until proponents take serious steps to outline exactly why private individuals should be allowed to grow marijuana and what can be done to neutralize the serious detrimental elements associated with this growth, it is nearly impossible to rationally argue for legalization.
Another regulatory problem is underage consumption. Proponents appear to have a strange sense of judgment because when arguing for legalization law enforcement does not do enough to prevent underage consumption, yet the prospect of making marijuana more available at a lower price seems applicable due to an underage selling restriction. So in an illegal environment underage restrictions are limited in their effectiveness, but in a legal environment they are sufficient enough to eliminate worry? The Dutch experience has provided evidence that supports Dutch youth having a higher lifetime prevalence for marijuana.2 Due to the protocol in place for coffee shops, especially after 1997 when the government actually started to enforce its regulations, it is unlikely that the coffee shops are directly violating ‘no sale to minor’ laws in large number, therefore, either these youths are acquiring their marijuana from street dealers or are asking adults to purchase marijuana for them, similar to alcohol in the United States. Realistically the former opinion is more likely because of the purchasing limit for marijuana in the coffee shops.
It stands to reason that any retail outlet would need to abide by a sales ceiling that corresponded to the personal possession ceiling (usually 1 ounce), which most legalization proposals do enforce. In addition similar to the Colorado regulations well placed visually identifiable video surveillance should be utilized to ensure more orderly control of the distribution and easier investigation if needed by law enforcement. In addition if there are no requirements for specialization in marijuana distribution then marijuana should be isolated to ‘behind the counter’ transactions. To wit it would be sensible, although not required, for non-specialization retail outlets to have a specific location of the store solely devoted to marijuana purchases.
Finally there is the question of whether or not to include specific retail locations where individuals can purchase as well as smoke while on the premise. These ‘marijuana bars’ should be carefully considered because it is well-established that marijuana diminishes response rates and reflex action. Also a vast majority of drunk driving incidents are a result of someone driving home from a bar, not drinking at home and then going out for a drive. Overall the negative externalities associated with a ‘marijuana bar’ heavily limit their usefulness and should eliminate their establishment from consideration even in a legalized marijuana environment.
Overall when making the case for legalization of marijuana proponents are presenting the public with information that is either wrong or predicated on illogical or unrealistic assumptions. The most disconcerting element of the presentation is how little proponents seem to have actually thought about how the enforcement, distribution and consumption environments will change in a legalized system over what currently exists. A number of proponents also seem to have an attitude that only cares about legalizing marijuana and whatever happens after that is irrelevant as long as marijuana stays legal. This attitude is shameful because if these additional elements are not studied and discussed then legalization will only result in more problems and higher societal costs than the current prohibitory system. If proponents genuinely believe that legalizing marijuana is correct and just then they need to address the above concerns regarding their logic and beliefs in how a legalized marijuana environment will function, otherwise these individuals are selfish, do not care one iota for society and their opinions should be dismissed from this subject.
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