A "terrible way to legalize marijuana" in Ohio is still better than no legalization at all [updated with additional information on Issue 2]

|The Volokh Conspiracy |

I agree with almost everything co-blogger Jonathan Adler says about Ohio's Issue 3 referendum initiative, which would legalize marijuana in that state if it passes, but only at the price of restricting legal commercial production of marijuana to a cartel of ten crony capitalist firms. But I believe he's wrong about the bottom line. Issue 3 is badly flawed. But Ohioans should still pass it, because even a badly flawed legalization is better than the status quo. And when we evaluate ballot initiatives, the right standard of comparison is not with perfection, but with the realistically likely alternative, which in this is case is probably perpetuation of the status quo.

Like Jonathan, I support marijuana legalization. And, like him, I believe that restricting marijuana production to a few politically favored firms is "a terrible way to legalize marijuana." But restricting legal production to ten firms is still a major improvement over the status quo, which restricts it to zero. In addition, as Jonathan notes, Issue 3 would abolish legal penalties for the possession and use of marijuana by adults, and its distribution by licensed retailers. These are offenses for which thousands of people are arrested (and in some cases imprisoned) in Ohio every year. Ohio law provides for up to eight years imprisonment as the penalty for the possession and/or distribution of various quantities of marijuana. If it passes, Issue 3 would put an end these grave injustices. That's well worth the price of creating a marijuana production oligopoly, especially since even that oligopoly is still superior to status quo law on marijuana production.

Imagine that we are back in 1930 and the only politically feasible way to abolish alcohol prohibition is a law that allows only ten firms to legally produce alcoholic beverages. That reform would be flawed, but still preferable to full Prohibition, which led to the unjust imprisonment and death of many people. The same point applies to marijuana legalization in Ohio.

Moreover, as Jonathan notes, the cartel aspect of Issue 3 might never come into force, if Issue 2 (which would forbid the inclusion of monopoly and oligopoly measures in the state constitution) also passes. While it is not certain that Issue 2 will pass or that it would negate the oligopoly provision of Issue 3 if it does so, the possibility that this might happen further reduces the potential downsides of passing Issue 3 [but see update below]. Even if Issue 2 is defeated, or fails to negate the objectionable aspects of Issue 3, it is possible that the latter can be eliminated by future referenda.

Admittedly, there might be a good case for voting down Issue 3 if the likely result would be the swift adoption of a better legalization measure. But that result is far from certain. While political trends suggest that support for legalization is likely to continue to grow over time, it might still take years before another legalization measure gets on the ballot, and there is no guarantee it will necessarily be better than Issue 3. When California's Proposition 19 was defeated in 2010, it took several years to get another legalization initiative on the ballot in that state (which is finally likely to happen next year).

I can understand opposing Issue 3 if you are opposed to marijuana legalization in general. But, if like Jonathan and myself, you generally support legalization, then there is every reason to support Issue 3, despite its flaws. Hopefully, Jonathan and his fellow Ohioans will pass it. In Ohio, as elsewhere, the best should not be the enemy of the good.

UPDATE: One interesting question that would arise if Issue 2 passes as well as Issue 3, is whether the passage of the former would invalidate the latter in its entirety, or merely the cartel/monopoly provision. The text of Issue 2 suggests the former, since it states that if Issue 2 passes, "notwithstanding any severability provision to the contrary, that entire proposed constitutional amendment [meaning Issue 3] shall not take effect." If this is correct, then supporters of Issue 3 may have to oppose Issue 2, even though its anti-monopoly provisions are, generally speaking, a good idea. It is unfortunate that Issue 2 was drafted in such a way that it would likely negate the entirety of Issue 3, and not just the monopoly provision.