Colorado's Governor Sets Jeff Sessions Straight on Marijuana Legalization

It has not been the disaster portrayed by the prohibitionists whose numbers the attorney general likes to cite.



Yesterday Colorado's governor responded to Attorney General Jeff Sessions' concerns about the consequences of marijuana legalization in that state, showing once again that the devastation perceived by prohibitionists has little basis in reality. If Sessions is serious about collaborating with state officials in addressing federal priorities such as underage consumption, stoned driving, and interstate smuggling, he will have to recognize the difference between what scaremongers claim and what the data actually show.

In his July 24 letter to Colorado Gov. John Hickenlooper, for instance, Sessions worried about a 20 percent increase in adolescent marijuana use "after Colorado enacted 'recreational marijuana' laws." That number comes from a regional anti-drug task force known as the Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA), which calculated, based on data from the National Survey on Drug Use and Health (NSDUH), that the incidence of past-month marijuana use among 12-to-17-year-olds in Colorado rose from 10.5 percent in 2011-12, before legalization, to 12.6 percent in 2013-14, after legalization began to take effect. The difference is indeed 20 percent, but it is not statistically significant—a point that RMHIDTA, which is committed to building a case against legalization rather than objectively assessing its results, neglected to mention.

As Hickenlooper and Colorado Attorney General Cynthia Coffman note in their August 24 reply to Sessions, the Healthy Kids Colorado Survey (HKCS), which has a much larger sample of Colorado teenagers than NSDUH does, likewise "found no statistically significant change in youth marijuana use rates following legalization." Even after state-licensed marijuana merchants began serving recreational consumers in 2014, according to a recently published analysis of HKCS data, cannabis consumption by teenagers was "unchanged." And as Hickenlooper and Coffman point out, "the most recent NSDUH report indicates that between 2013-14 and 2015-16—the period in which adult-use marijuana businesses opened their doors—youth marijuana use [in Colorado] declined by 12 percent."

Sessions also quoted RMHIDTA's claim that "marijuana-related traffic deaths increased 48 percent in the three-year average (2013-2015) since Colorado legalized recreational marijuana compared to the three-year average (2010-2012) prior to legalization." But as the fine print of the RMHIDTA report acknowledges, "marijuana-related traffic deaths" are not necessarily traffic deaths related to marijuana. Rather, they are "fatalities involving operators testing positive for marijuana," which does not show that they were impaired by marijuana at the time of the crash, let alone that marijuana caused the crash.

"A subject might have a positive test result when either active THC—which produces marijuana's psychoactive effect—or one of its inactive metabolites are present in the subject's blood," Hickenlooper and Coffman note. Even when active THC is detected, the level may not be high enough to affect driving ability. It is therefore impossible to tell from the data cited by Sessions whether stoned drivers are actually causing more crashes than they did before legalization.

Today The Denver Post reported that the number of drivers involved in fatal crashes who tested postive for THC or an inactive metabolite rose again last year in Colorado, from 88 to 115. But it remains unclear how many of these crashes were caused by marijuana intoxication. The Post says 71 drivers tested positive for active THC, including 45 who had THC blood concentrations higher than five nanograms per milliliter, the level at which Colorado law allows juries to infer impairment. But that presumption is rebuttable in court, and in reality many drivers who exceed the five-nanogram cutoff are not impaired.

It would help to know whether THC-positive drivers were deemed to be at fault, but the data cited by the Post do not answer that question. Making it even more difficult to entangle marijuana's contribution to the fatal crashes, last year most of the "marijuana-positive" drivers (about 55 percent) also tested positive for alcohol or other drugs.

According to the Post, "Colorado transportation and public safety officials…say the rising number of pot-related traffic fatalities cannot be definitively linked to legalized marijuana." But since "positive test results…do not indicate whether a driver was high at the time of the crash," we also don't know how many "pot-related traffic fatalities" are in fact related to pot.

There is stronger evidence that two other problems mentioned by Sessions, marijuana-related hospital visits and calls to the Rocky Mountain Poison and Drug Center, have become more common since legalization. But as Hickenlooper and Coffman point out, those increases may be partly due to "a greater willingness, post legalization, among health professionals to inquire about marijuana use and among individuals to report it." They add that "marijuana-related emergency department visits fell from 1,309 per 100,000 in 2014 to 704 per 100,000 in 2015," while "marijuana exposure calls declined from a peak of 229 in 2015 to 201 in 2016." Hickenlooper and Coffman credit stricter state regulation of marijuana edibles, including dose limits and labeling requirements. But the reversals also may reflect a learning curve as consumers figure out how to avoid unpleasant experiences and accidental exposures.

Hickenlooper and Coffman promise to continue enforcement efforts aimed at preventing interstate smuggling, which they say is due primarily to "abusive residential marijuana cultivation activities that take place under the guise of lawful medical marijuana production," as opposed to diversion from state-licensed growers and retailers serving the recreational market. "Earlier this year," they note, "federal, state, and local authorities executed the largest marijuana-related enforcement action since legalization, indicting 74 people for violating state drug laws."

Unlike pot-smoking teenagers, stoned drivers, and people who freak out after eating too much THC-infused chocolate, entrepreneurs who bring Colorado marijuana to places where its is still illegal are at least engaged in an activity that crosses state lines, making the federal concern more constitutionally plausible. But it is not as if no one was smoking pot in Kansas, Oklahoma, or Nebraska before Colorado legalized the stuff, and that decision does not seem to have had a noticeable impact on cannabis consumption in other states, which was already rising.

In any case, if Sessions wants Colorado's help in busting marijuana exporters, he will have to accept the state's decision not to bust growers and sellers serving adults in Colorado (as long as they comply with state regulations). The same goes for cooperation on the other issues that worry Sessions and for all eight states that have legalized marijuana. So far Sessions has asked four of those states how they plan to address the federal government's enforcement priorities, and now all four have replied that they plan to help him by enforcing their own laws. Sessions says "the federal and state governments should work together to address our country's concerns with marijuana." That will not happen if he tries to reimpose prohibition on states that have rejected it.

[This post has been updated with numbers for fatal crashes in 2016.]