Marijuana and States' Rights: A Reason Debate

Drug Policy Alliance's Ethan Nadelmann and Drug Policy Institute's Kevin Sabet debate state cannabis initiatives.

This week, Kevin Sabet and Ethan Nadelmann will be debating marijuana laws and policy. 

Today's question concerns state efforts to loosen marijuana laws. Next month, Colorado voters will consider a broad marijuana legalization referendum in November, and half a dozen states have medical marijuana or legalization initiatives on their ballots. Legalization of medical marijuana has already passed in 17 states and broad decriminalization in many others. Yet the federal government has been cracking down on medical marijuana dispensaries in the Centennial State and elsewhere, and Washington considers these statewide changes subordinate to federal law.

Should states be free to chart their own course with regard to marijuana policy (both medical and recreational)?

Kevin Sabet:

My basic answer is that states can chart their own course, but that their course should remain within bounds of national and international law — unless those change. So if people want to see things that clearly violate federal and international law — like legalization, or the legislation of medicine (in this case, medical marijuana is being "voted" on by the populace, which is a rather bizarre concept) — they should change those broader laws. Within current laws, of course, states can and do vary widely in how they treat marijuana. In fact, most places punish the use of small amounts of marijuana similarly to a speeding ticket. Now we should make sure that these arrests — as insignificant as they may be — do not lead to the loss of benefits (like educational loans or health care) down the road, but those laws can be changed within our current framework of federal and international laws. Using alcohol as our example, putting marijuana under a similar structure would be a public health disaster. For one, we gain about $15 billion in revenue from taxes, but alcohol costs society over $200 billion in lost productivity, health care, accidents, and criminal justice. And unbeknownst to most people, legal alcohol also results in 1 million more arrests than for all illegal drugs combined. So I think we would be better off focusing on prevention, treatment, and stopping marijuana initiation before it starts. Under legalization, that becomes very hard to do.

Kevin A. Sabet, PhD, is Director of the Drug Policy Institute at the University of Florida. He served as a senior advisor in the Obama Administration's Office of National Drug Control Policy from 2009 to 2011.

Ethan Nadelmann:

The suggestion that reform of marijuana prohibition laws in the United States must start by focusing on federal and international law is simply an excuse for inaction.  Federal law in this area will only change as a result of political pressures associated with changes in state laws.  This does not mean that no efforts should be made to change federal and international laws, just that reforming state laws is an essential part of the political process by which federal and international marijuana prohibition laws will ultimately be reformed and repealed.  Keep in mind too that this country has a long tradition of states serving as incubators for innovative policy reforms.

Kevin makes two other mistakes in his commentary.  It's not true – although I wish it were – that "most places punish the use of small amounts of marijuana similarly to a speeding ticket."  Few people are handcuffed or taken to a police station or incarcerated in a jail for speeding tickets, but all those indignities routinely are applied to people arrested for possession of small amounts of marijuana.  Government employees won't lose their jobs for a speeding ticket but they may very well for a marijuana possession arrest.  Punishment can be even more severe if the person arrested is among the roughly five million Americans on parole or probation, often for very minor offenses.  Millions of Americans have suffered much worse than the equivalent of a speeding ticket in recent years for nothing more than being caught with a little marijuana.

As for the comparison with alcohol, the costs of alcohol abuse are so great in good part because alcohol can be a remarkably dangerous and destructive drug for a minority of consumers – much more so than marijuana.  There is no basis to assume that the costs of marijuana misuse would be anything comparable to those of alcohol misuse if marijuana were made legally available.

Ethan Nadelmann is Executive Director of the Drug Policy Alliance.

Kevin Sabet responds:

States as incubators are fine — but at what cost? And why legalize when we can optimize our current policies to work better? Legalization would significantly increase the risk of greater youth use and other health and safety costs in society. Ethan's points would make good sense only if our choices were so stark. Besides full blown prohibition-enforcement for marijuana on the one hand, and legalization on the other, there are plenty of things we can do to get rid of the worst parts of our current laws (the things Ethan mentions —job loss, being cuffed, etc.). But that is not a good reason for legalization. That's a compelling reason for some kind of specific reform. Given the risk we would take by legalizing marijuana — including the risks of increased use, accidents, and health and social costs [pdf] — it seems reckless and uncaring to go to such extremes in order to fix parts of the law that we can all agree are especially egregious. Ethan, would you abandon your legalization efforts if we got rid of the indignities you mention and yet kept marijuana illegal?

Though its harms are underappreciated, marijuana is also remarkably dangerous and destructive for a minority of consumers — about 1 in 7 people who try alcohol will become addicted; the number for marijuana is 1 in 10 — but it is 1 in 6 if you start smoking in adolescence. You might say that marijuana addiction is not as bad as alcohol addiction, but both are plenty bad. Ask any educator, parent, or highway safety official. I'm not suggesting alcohol is less dangerous than marijuana, but it has enough harms we should be worried about, including significant IQ loss and detrimental learning outcomes, a significant link to mental disorders, adolescent brain changes, and car crashes (the most exhaustive meta-analysis on this subject was recently published in the British Medical Journal and concluded that drivers high on pot are twice as likely to get into a car crash as non-high drivers). No one knows what the exact costs of increased marijuana use would be in society, but given the link between marijuana and these harms, we know that an increase in use would accompany an increase in costs to society.

Ethan Nadelmann responds:

It's good to see Kevin Sabet apparently endorse far reaching decriminalization of marijuana, which would indeed represent a substantial improvement over the current situation.  But he both exaggerates the benefits of decriminalization and the risk of legalization.

California and New York were among the eleven states that decriminalized marijuana possession back in the 1970s, but that did not stand in the way of police finding ways to arrest more people for marijuana possession than ever before in later years.  It's also worth pointing out that African Americans and Latinos are arrested far more frequently than white Americans for marijuana possession – both in states that have decriminalized marijuana and those that have not [pdf] – notwithstanding the fact that they are no more likely to possess marijuana. 

While decriminalization of possession has little to no impact on the number of consumers [pdf], it fails to address the problems associated with keeping production and distribution illegal.  Legalization is the only way to effectively take the market away from organized criminals and to reduce the violence, corruption and other ills of prohibitionist policies.  It also is the best and perhaps only way to ensure quality control over marijuana, including its potency and purity.

While Kevin is correct in saying that legalization risks increases in marijuana use, he is wrong to focus on youth given the extent to which surveys consistently show that young people already have remarkably easy access to marijuana.  The more likely increases will occur among older Americans, many of whom may find marijuana preferable to alcohol and pharmaceutical drugs in addressing the aches, pains, insomnias and other indignities of aging.

As for the risks of increased marijuana use, I am struck by the experience in the Netherlands, where marijuana has been more or less legally available to adults for over three decades.  By and large, rates of consumption have increased and decreased in tandem with increases and decreases in the rest of Europe – and remain significantly lower than in the United States.

The benefits of legally regulating marijuana dramatically outweigh the potential costs. Thankfully more and more Americans get this.  According to Gallup's polling, 36 percent of Americans in 2006 said yes to legalizing marijuana use while 60% said no.  Five years later, in late 2011, the 36 percent in favor had jumped to 50 percent and the 60 percent against had fallen to 46 percent.

The legitimacy of any criminal law in a free society – and especially one that touches the lives of so many people—depends upon its being embraced not by half the population but by an overwhelming majority.  Marijuana prohibition laws are more or less unique in the extent to which they enforce the prejudices of one half of the country on the other.

Tomorrow, Sabet and Nadelmann will consider marijuana reform within a broader context of public health policy.