Pot Legalization Is a 'Big Mistake' Only If You Ignore the Value of Freedom and the Injustice of Prohibition

The harm caused by marijuana abuse does not justify reverting to an oppressive policy that criminalized peaceful conduct.


New York Times columnist Ross Douthat thinks "legalizing marijuana is a big mistake." His argument, which draws heavily on a longer Substack essay by the Manhattan Institute's Charles Fain Lehman, is unabashedly consequentialist, purporting to weigh the collective benefits of repealing prohibition against the costs. It therefore will not persuade anyone who believes, as a matter of principle, that people should be free to decide for themselves what goes into their bodies.

Douthat recognizes that his case against legalization "will not convince readers who come in with stringently libertarian presuppositions." Lehman, a self-described "teenage libertarian" who has thought better of that position now that he is in his 20s, likewise makes no attempt to argue that the government is morally justified in arresting and punishing people for peaceful conduct that violates no one's rights. They nevertheless make some valid points about the challenges of legalization while demonstrating the pitfalls of a utilitarian analysis that ignores the value of individual freedom and the injustice of restricting it to protect people from themselves.

Douthat and Lehman are right that legalization advocates, who at this point include roughly two-thirds of American adults, sometimes exaggerate its impact on criminal justice. All drug offenders combined "account for just 16.7 percent" of people in state and federal prisons, Lehman notes, and perhaps one-tenth of those drug war prisoners (based on an estimate by Fordham law professor John Pfaff) were convicted of marijuana offenses. People arrested for violating pot prohibition usually are not charged with production or distribution and typically do not spend much, if any, time behind bars.

Still, those arrests are not without consequences. In addition to the indignity, embarrassment, inconvenience, legal costs, and penalties they impose, the long-term consequences of a misdemeanor record include barriers to employment, housing, and education. Those burdens are bigger and more extensive than Douthat and Lehman are willing to acknowledge.

Since the 1970s, police in the United States have made hundreds of thousands of marijuana arrests every year, the vast majority for simple possession. The number of arrests peaked at nearly 873,000 in 2007 and had fallen to about 350,000 by 2020. The cumulative total since the early 1990s exceeds 20 million.

That is not a small problem, although Douthat and Lehman glide over its significance. Yes, Lehman concedes, "arrests for marijuana-related offenses—possession and sales—plummet" after legalization. But based on a "rough and dirty" analysis, he finds that "marijuana legalization has no statistically significant effect on total arrests."

Is that the relevant question? If police stop arresting people for conduct that never should have been treated as a crime, that seems like an unalloyed good, regardless of what happens with total arrests.

Lehman thinks the results of his analysis make sense. "Marijuana possession (and the smell of pot) is a pretext for cops to stop and search people they think may have committed other crimes, and marijuana possession similarly [is] a pretext to arrest someone," he writes. "If marijuana arrests are mostly about pretext, then it would make sense that cops simply substitute to other kinds of arrest in their absence, netting no real change in the arrest rate."

Again, unless you trust the police enough to think they are always protecting public safety when they search or arrest people based on "a pretext," eliminating a common excuse for hassling individuals whom cops view as suspicious looks like an improvement. Lehman seems to be suggesting that most people arrested for pot possession are predatory criminals, so it's a good thing that police have a pretext to bust them. But when millions of people are charged with nothing but marijuana possession, that assumption seems highly dubious.

Douthat and Lehman's main concern about legalization is that it encourages heavy use. The result, Douthat says, is "a form of personal degradation, of lost attention and performance and motivation, that isn't mortally dangerous" but "can damage or derail an awful lot of human lives." Citing the 2021 National Survey on Drug Use and Health (NSDUH), he says "around 1‌‌6 million Americans, out of ‌more than 50 million users" are "now suffering from what ‌‌is termed marijuana use disorder."

That estimate should be viewed with caution for a couple of reasons. First, the term cannabis use disorder encompasses a wide range of problems, only some of which resemble the life-derailing "personal degradation" that Douthat describes. Second, while the American Psychiatric Association's definition requires "a problematic pattern of cannabis use leading to clinically significant impairment or distress," the NSDUH numbers are based on a questionnaire that asks about specific indicators but does not measure clinical significance.

In addition to that requirement, the official definition lists 11 criteria. Any two of them, combined with "clinically significant impairment or distress," are enough for a diagnosis.

If you experience "a strong urge to use marijuana" and "spend a great deal of your time" doing so or find that "the same amount of marijuana" has "much less effect on you than it used to," for example, you qualify for the diagnosis, provided you are experiencing "clinically significant impairment or distress"—which, again, the NSDUH questionnaire is not designed to measure. The upshot is that people with mild or transitory marijuana problems, or even people who smoke a lot of pot but do not necessarily suffer as a result, get lumped in with cannabis consumers who flunk school, lose their jobs, neglect their spouses and children, or engage in physically hazardous activities.

Taken at face value, the NSDUH numbers indicate that 31 percent of Americans who used marijuana in 2021 experienced a "cannabis use disorder" at some point during that year. By comparison, about 17 percent of drinkers experienced an "alcohol use disorder," according to the same survey. The criteria for the latter are similar to the criteria for the former, and in both cases problems range from mild to severe.

Does that mean marijuana is nearly twice as addictive as alcohol? Other estimates tell a different story. A 1994 study based on the National Comorbidity Survey put the lifetime risk of "dependence" at 15.4 percent for drinkers and 9.1 percent for cannabis consumers. A 2010 assessment in The Lancet gave alcohol and marijuana similar scores for "dependence" risk.

Even previous iterations of the NSDUH indicate much lower rates of cannabis use disorder than the 2021 numbers suggest. In 2019, for example, 17.5 percent of respondents reported marijuana use, while 1.8 percent were identified as experiencing a cannabis use disorder. That 10 percent rate is one-third as high as the rate reported for 2021.

The measured increase in the rate of cannabis use disorder among users might seem consistent with the story that Douthat and Lehman are telling, in which legalization made potent pot readily available, leading to more marijuana-related problems. But it is unlikely that such an effect would suddenly show up in the two years between the 2019 and 2021 surveys. Another reason to doubt that hypothesis: The rate of alcohol use disorders among drinkers also jumped, from about 8 percent to about 17 percent, during the same period. Both increases seem to reflect the rise in substance abuse associated with the pandemic.

Another consideration in comparing marijuana with alcohol is the consequences of heavy use, which are far more serious in the latter case. The Lancet analysis rated alcohol substantially higher than cannabis for "harm to users" and "harm to others" and as the most dangerous drug overall by a large margin. Alcohol's score was 72, compared to 20 for cannabis.

Even among heavy users, in other words, alcohol is apt to cause more serious problems than marijuana. Yet neither Douthat nor Lehman discusses the potential benefits of substituting marijuana for alcohol. In fact, they do not mention alcohol at all, perhaps because that would raise the question of whether it is sensible to ban marijuana while tolerating a drug that is more hazardous by several measures, including acute toxicity, long-term health problems, and road safety.

While Douthat and Lehman blame legalization for fostering marijuana abuse, they contradictorily note that cannabis consumed in several states that allow recreational use still comes mainly from the black market. Both cite economists Robin Goldstein and Daniel Sumner, who estimate in their book Can Legal Weed Win? that unlicensed dealers account for three-quarters of the marijuana supply in California, where voters approved legalization in 2016. The difficulty that states like California have faced in displacing the black market, Goldstein and Sumner argue, shows the perils of high taxes and heavy regulation, which make it hard for licensed marijuana merchants to compete.

Douthat and Lehman draw a different lesson. Given the hazards of marijuana abuse, they think, high taxes and heavy regulation are appropriate to deter excessive consumption. Yet those policies, they say, help preserve a black market that could be suppressed only by harsh measures that are not feasible in the current political environment. Since "we have spent the past several decades contending that marijuana enforcement is racist, evil, and pointless," Lehman says, "there is little appetite for doing more of it."

That situation creates a dilemma for technocrats who think they can fine-tune the marijuana market to minimize the harm it causes. "On the one hand, a harm-minimizing marijuana market entails high taxation and strict regulation," Lehman writes. "On the other, it also needs to be cheap enough to outcompete the illicit producers who will otherwise swoop in to provide where the licit market does not—thereby producing the same harms the licit market is meant to obviate. In optimizing between these two extremes, we get the worst of both worlds: a thriving illicit market, and also weed widely available enough to harm millions of heavy users."

The only logical solution, Lehman thinks, is returning to the "big, dumb policy" of prohibition. Douthat seems inclined to agree. "Eventually," he says, "the culture will recognize that under the banner of personal choice, we're running a general experiment in exploitation—addicting our more vulnerable neighbors to myriad pleasant-seeming vices, handing our children over to the social media dopamine machine and spreading degradation wherever casinos spring up and weed shops flourish."

Respect for individual autonomy, of course, has always entailed the risk that people will make bad choices. That is true of everything that people enjoy, whether it's alcohol, marijuana, social media, video games, gambling, shopping, sex, eating, or exercise. Even when most people manage to enjoy these things without ruining their lives, a minority inevitably will take them to excess. The question is whether that risk justifies coercive intervention, which is also dangerous and costly.

Answering that question requires more than weighing measurable costs and benefits. It requires value judgments that Douthat and Lehman make without acknowledging them. When you start with the assumption that government policy should be based on a collectivist calculus that assigns little or no weight to "personal choice," which Douthat dismisses as a mere "banner," you can rationalize nearly any paternalistic scheme, no matter how oppressive or unjust.