Let’s start with Mark Kleiman’s new OpEd in the Los Angeles Times:
There’s one problem with legalizing, taxing and regulating cannabis at the state level: It can’t be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can’t legalize a federal felony.
Well, duh. Thanks for letting us know that marijuana would still be illegal at the federal level. There’s a newsbreak.
When California passed medical marijuana, it was illegal at the federal level as well. That didn’t stop them from actually, relatively successfully (despite the challenges of federal government intrusion), implementing a licensed medical marijuana system.
But Mark helpfully explains why that could work, while recreational marijuana wouldn’t…
True, Atty. Gen. Eric H. Holder Jr. has announced that the Justice Department will not prosecute people who are selling medical marijuana in compliance with California’s law. But that’s an entirely different matter. The attorney general could cite good legal and constitutional reasons for that policy, because the regulation of medical practice is a state and not a federal responsibility. And if the medical justification for most of the pot sold through dispensaries is sketchy at best? Well, that too is a state problem.
This is just a bizarre statement. Maybe the Attorney General “could cite good legal and constitutional reasons for that policy,” but he didn’t â€” he merely said that prosecuting medical marijuana in compliance with state law was not a particularly good use of limited resources. How would that be different from prosecuting millions of recreational users?
And “because the regulation of medical practice is a state and not a federal responsibility”? More bizarreness. Yes, under today’s fatally strained Supreme Court interpretation of the Commerce Clause, medical “practice” is mostly a state function, but the drugs used in medical practice (including marijuana) are considered to be under federal control (re-read Raich). The implication that somehow medical drugs are constitutionally the domain of the states (don’t I wish), but recreational drugs are not is an even more unusual Constitutional notion (I’m imagining a bizarro-land Kleiman version of the 10th Amendment reading “The powers not delegated to the States, or to the people, are reserved to the United States”).
Note: it is interesting that I don’t recall Mark mentioning this point about the regulation of medical practice being the domain of the states when it came to discussions about federal health care.
But Mark goes on to give a reason why the federal government could not sit by with legalization of recreational marijuana in California â€” treaties.
For one thing, allowing Californians to openly grow cannabis for non-medical purposes would be a clear violation of international law; that’s why the Netherlands, which tolerates retail cannabis sales through “coffee shops,” still bans marijuana production.
So, apparently, the United States government would be willing to undertake a massive military action against the entire population of its largest state, in order to avoid looking bad to other countries?
[Side Query: Just what has been the U.S. track record at obeying all international treaties and laws?]
Now if the Netherlands broke the treaty, they’d be in for some international problems (mostly from the U.S. â€” the country most heavily pushing the drug treaties). What would happen if the U.S. broke the treaty? Would the United Nations expel us? Make us pay our dues? Issue a resolution? Decertify us in some kind of international report of countries that play ball regarding drug policy, and give us less foreign aid?
The point is that the federal government has to be pushed into doing the right thing, and merely writing your Congresscritter ain’t going to do it. It takes pressure from a lot of directions, and California passing legalization is one of those directions that could have a lot of push.
The final reason that Kleiman says the feds can’t allow California legalization (and apparently therefore will commit its entire national resources to busting people for possession of cannabis) is… the black market.
… the legal California product would still be a screaming bargain by national standards, at less than one-third of current black-market prices.
As a result, pot dealers nationwide â€” and from Canada, for that matter â€” would flock to California to stock up. There’s no way on earth the federal government is going to tolerate that.
So… the federal government, unhappy that marijuana profits have stopped going to murderous Mexican drug cartels, and instead are going to California citizens, will start cracking down on marijuana trafficking?
Of course, the “statistics” about what the price of cannabis would be in legalized California are from his friends with the infamous RAND report.
He then finishes his OpEd with the statement that he’d support marijuana legalization… as long as it’s done his way.
It’s an odd OpEd, but nothing really that we aren’t used to from Mark Kleiman.
He’s convinced that prohibition (as it has been practiced in every way to date) is a failure, and he thinks marijuana should be “legal” in some way, but there’s no way he’ll ever support “legalization,” partly because he ironically wants to be recognized and accepted as a “Villager,” and partly because of his ingrained prejudices.
Kleiman has worked hard to establish himself as the go-to academic on drug policy, along with the almost incestuous group of think-tank folks whose name appears on every drug policy paper that comes along (and of course, on his list of favorite books on drug policy). Well, if you want to be in the inner circle, it just won’t do to promote legalization publicly. If you want to be invited to chat with the drug czar, you can criticize prohibition, but you can’t suggest that there should be an alternative.
This puts Kleiman in the rather ridiculous position of opposing every aspect of prohibition, yet still looking around for some way to make it work better (like doing it “less”). Or, instead of really dealing with the whole problem, picking one tiny aspect and focusing totally on it (like his promotion of the HOPE program â€” a worthwhile program that should be promoted, but which has as much likelihood of solving prohibition’s destruction as increasing the budget for the USO would have in instituting world peace).
Regarding his prejudices… the biggest one is against the people who are for legalization.
Let’s take a look at his post promoting the OpEd:
…I may vote for the proposition anyway, just as a protest against the current laws. Too bad the California ballot initiatives donâ€™t permit you to vote for â€œa pox on both your houses.”
Ignore the strange juxtaposition that it’s a crock and then saying he may vote for it anyway… Let’s look at his desire to vote for “a pox on both your houses.” This is a recurrent theme. He doesn’t support the results of the prohibitionists, but he doesn’t like the legalizers. It’s not that he wants to vote against legalization; he wants to vote against the legalizers.
And yes, he’s done this before. In a piece where he clearly dismantled the prohibitionists’ arguments against medical marijuana, he concludes:
If you guessed from the above that neither side of the drug-policy debate actually gives a ratâ€™s ass about sick people, youâ€™re a remarkably good guesser.
No evidence that our side didn’t give a rat’s ass about sick people; he just wanted to slam both sides.
It’s really got to bug him every time that NORML, LEAP, MPP, SSDP and others get press (and it’s happening more and more), because he and his friends have worked so hard to be the voice of proper drug policy.
But quite frankly, by being intellectually dishonest in order to be “politically” acceptable and ignoring the facts of drug policy in order to push personal pet views, he is ironically proving himself to be irrelevant to the real and dynamic conversation that’s going on now regarding drug policy.
I am saddened that we lack a true drug policy think tank here in the United States anywhere near the caliber of Transform Drug Policy Foundation in England, where real research and concrete proposals are being put forward, instead of our academics’ pathetically intellectually empty efforts to “fix” prohibition and sabotage reform.
And that’s the real reason I care enough about what Mark Kleiman says to write such a long post.
Oh, by the way, guess who else suddenly discovered the black market? The drug czar.
Mr. KERLIKOWSKE: Well, we know that certainly California is poised to and will be voting on legalizing small amounts of marijuana. And that vote is scheduled for November of this year.
There are a number of studies and a number of pieces of information that really throw that into the light of saying that, look, California is not going to solve its budget problems, that they have more increase or availability if drugs were, or marijuana, was to become legalized. That in fact you would see more use. That you would also see a black market that would come into play. Because why wouldn’t in heaven’s name would somebody want to spend money on tax money for marijuana when they could either use the underground market or they could in fact grow their own.
Wow. A “black market” would come into play. Who knew? Did any of you imagine that conditions could ever occur where there would be a black market in marijuana? Good thing we’ve got criminalization, where you don’t have black markets.
And that whole business about who would want to buy marijuana legally if they could get it on the black market? That must be why everyone grows their own tobacco and brews their own beer, and why nobody ever buys tomatoes in the stores, because they can grow their own without taxes.
A reminder to the drug czar…
Despite the fact that a lot of places have ridiculously stupid high taxes on cigarette packs (like New York City’s $4.25 per pack tax), somehow enough people actually buy them to generate billions in tax revenue.