Legalization isn’t the question

Unfortunately, most drug policy discussions today revolve around imagined potential gains or problems resulting from legalization of certain drugs. And because of the politics involved, we often really have no choice but to play these ridiculous games. But, in fact, it’s very much the wrong question.

The actual question is criminalization. And the answer is “no.”

When you look at the issue properly, you see that what we need to discuss is correcting the massive wrongness of criminalization.

Those who support prohibition have never been required to actually put forth coherent and defendable justifications for criminalization. Instead, they get to claim criminalization as the status quo and merely object to minor details or uncertainties regarding “legalization.” They actually act as if prohibition is the default in our country, which is far from the truth.

And so we get caught up in completely bizarre and meaningless disputes. I was struck, for example, by the utter glee with which Mark Kleiman gloats over his group’s dismantling of the claim that marijuana is the number one cash crop in the U.S. Turns out, according to their calculations, that it’s merely in the top 15.

Other than from a purely academic perspective, who the hell cares? It’s presented as if that is somehow some kind of big blow to legalization, which makes very little sense, but fits within the “gotcha” approach to protecting the status quo, where unless the absolute furthest value of each and every argument mentioned by some legalization activist somewhere is 100% verifiable, then legalization must be flawed.

The better question is: What does the overall cash value of marijuana in the country have to do with the decision to put people in jail for using it?

And so, we’re mired down in arguments over how much tax revenue will come from future drug sales, what percentage of income the cartels get from a particular drug, or what kind of advertising will be allowed, rather than asking why the hell we’re putting people in jail for this.

So, let’s take a look at the right question.

Should drugs be criminalized?

It’s a five-part question.

Step 1: Does the government have the authority to criminalize drugs?

This is not as obvious as some may think, particularly if you look at history.

The Constitution of the United States specifically does not give police powers to the federal government. That kind of power was considered a state function. However, there is one clause in the constitution which gives the government the following “limited” power…

to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

This is generally known as the commerce clause. As intended, in the early years of this country’s history, the commerce clause allowed only minimal instrusion on the activities within states. For example, federal alcohol prohibition was not considered constitutionally possible without an amendment because of the commerce clause, and judges also regularly placed the tenth amendment in the path of congressional regulation of “local” affairs. [1]

So, even though the Supreme Court has, in modern day, given the federal government extraordinarily wide-reaching powers, there is historical precedent for denying it.

But there is also current Supreme Court jurisprudence that could argue against government prohibition, particularly when you think about cases like Lawrence v. Texas and Roe v. Wade.

If the government doesn’t have the authority to interfere with someone killing a fetus, or with someone sticking a penis into someone else’s anus in the privacy of their own bedroom, it’s not that hard to imagine that maybe the government shouldn’t be able to prevent one from eating a marijuana brownie. If pregnant women and homosexuals have autonomy over their own bodies, then why not drug users?

Is cognitive liberty not a protected right?

So, if you agree that the government has no authority to ban liberty, it’s simple. Criminalization of drug use is wrong.

However, if this doesn’t sway you, and you think that “life, liberty, and the pursuit of happiness” are just some pretty words used for poetic license, and not something real, then you may decide that the government is fully in the right in their authority to ban drugs, and you can continue to step 2.

Step 2: Are drugs dangerous?

It would seem that you’d need to determine that a particular drug is dangerous if you’re going to ban it, unless you’re just doing it because Mexicans or Negro jazz musicians or dirty hippies use it, or because you can make a buck off of criminalization.

And if you’re going to ban something for being dangerous, you should know something about the dangers — unlike our drug system which clearly has no rhyme or reason or qualified analysis of the comparative dangers (both to individuals and to society) of various drugs.

Of course, our legislators can’t be bothered by such basic matters of common sense. They’d gladly pass criminal penalties for the possession of dihydrogen monoxide, if they thought they could get credit for sponsoring the bill.

So let’s say that you think government should be given the authority to criminally prohibit drug use and that a particular drug is dangerous. That leads to step 3.

Step 3: Will criminalization significantly reduce the danger?

This is the most important question that is never asked.

Again, unfortunately, there is a tendency to legislate based on the assumption that outright prohibition will solve perceived dangers, while that is often (perhaps usually) not the case.

We have, tragically, decades of proof that criminalization will not only not reduce any dangers of drug use, but, in fact, will make drug use significantly more dangerous. Uncertain dosage and purity, lack of practical education, and so much more.

However, if you’ve given up on liberty, are convinced that drugs are dangerous, and actually think that prohibition reduces the danger, despite basic common sense and years of evidence, then you’re ready to proceed to step 4.

Step 4: Is criminalization the best way to reduce the danger?

Another important calculation that is too often ignored.

We don’t eliminate speech because some speech is dangerous when used in a particular way. There are thousands of human activities which can be dangerous when abused, yet we don’t criminalize all who participate. We deal with these things through education, through regulation, through helping those people who can’t handle the activity.

The worst possible option would be to criminalize (with jail time, even) millions of people who are not causing any harm, because of a tiny minority who abuse drugs. It would be a complete failure of imagination and intelligence to be unable to craft legislation that targets the problem user without dragging everyone else in with it.

However, if you’re anti-freedom, think drugs are dangerous, lack the common sense to realize that criminalization won’t make them less dangerous, and don’t care about criminalizing millions of innocents because of your pathetic inability to craft targeted policy, then yes, you’re ready to move on to step 5.

Step 5: Are the advantages of criminalization worth the destructive elements of prohibition?

Let’s assume that you’ve gotten this far, and actually believe there to be dangers of drugs that can be solved appropriately by criminalization. You then must weigh that slight good with all the destructive negatives of prohibition. Such as:

… and the list goes on.

That’s the five-part question that really needs to be answered. And it takes quite a bit of self-delusion to get through that exercise and still support criminalization.

No, legalization really isnt the question. But it sure is the answer.

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54 Responses to Legalization isn’t the question

  1. claygooding says:

    This has to be one of your best Pete.

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  4. Peter says:

    yes great job pete. not that i have much faith in the scalia supreme court to decide antything
    based on logic as opposed to prejudice but why has this argument not been tested in court?

  5. Duncan20903 says:


    We often complain about the parasitic perpetrators of propaganda in this column but I don’t think that anyone can argue against the assertion that the American producers of hysterical rhetoric have elevated its production to an elite level art form. I think that the U.S. produces the most sophisticated propaganda in the world. You can tell the difference at a glance with cheap, knock off propaganda produced in foreign countries. Take this example from Mumbai:

    Students blow dough on dope
    Aug 19, 2012
    By Kishore Rathod

    The consumption of drugs like marijuana and hashish (charas) has risen sharply among city students in the past couple of years, with regulars blowing up thousands of rupees on the habit every month and risking their young lives in the bargain.

    If they tried to palm off that nonsense in the U.S. they’d get laughed off of the dias. But I must admit I find the concept of blowing dough on dope to be intriguing.

    BTW 1000 Rupees is worth USD $17.95.

  6. CJ says:

    YES!!!!!!!!!!!!!!!! that WAS F’N EXCELLENT!!!!!!!!!!!!!!! the new 5 steps program of LEGALIZATION SYNONYMOUS !!!

  7. Francis says:

    Excellent post! I was struck by your use of the phrase cognitive liberty. In George Orwell’s 1984, the idea of “thoughtcrime” is introduced to illustrate the totalitarian state taken to its logical extreme. Individuals are not even allowed freedom in their own minds. It was intended as a shocking vision of a dystopian future. But that’s exactly what prohibition represents right now. Of course, the laws criminalize the conduct of possessing and selling certain psychoactive substances, but that’s merely a concession to practical realities. The target of these laws is unmistakably human consciousness. Your citation to Lawrence and Roe is also spot-on. The idea that sovereignty over one’s body and consciousness is not a “fundamental right” is absurd. It’s arguably THE fundamental right. And as I’ve argued before, there’s simply no way that criminal prohibition could survive the appropriate strict scrutiny challenge — assuming the Supreme Court actually did its job. (Unfortunately, that’s a huge assumption.)

  8. notjonathon says:

    Of course, everything you say is true. Unfortunately, the status quo you outlined in Step 5 is a feature, not a bug.

    Nixon created his war on drugs largely to drive the little guys out of business; his kitchen cabinet buddy, Bebe Rebozo, was a pioneer in the now-common practice of laundering drug money by US and European banks.

    Now drug enforcement is a growth industry that encompasses everything from military equipment manufacturers to private prison companies.

    They will fight tooth and nail. We can only hope that state after state will legalize, jury after jury will acquit, and police force after police force will refuse to arrest, for if Colorado or Washington votes to legalize, expect appeals all the way to the Supreme Court. SCOTUS, unfortunately, only asserts States’ rights when they support less freedom and greater corporatization.

    SCOTUS may well rule Colorado’s legalization null and void, but if twenty states vote to legalize, their position will no longer be tenable. If juries refuse to convict (jury nullification in cases in Virginia and Kansas), eventually prosecutors will give up trying to prosecute.

    Local governments in CA are also busy trying to undercut the will of the people. I suspect pressure from law enforcemnet agencies as the primary cause.

    For real hope of legalization, more and more states have to legalize, until pressure on the federal government becomes too great to withstand.

  9. Cold Blooded says:

    Unfortunately most people, conservative or liberal, don’t even bother with question 1. They don’t consult the federalist papers to see if a proposed law is constitutionally-valid, they just say “Hey, that sounds like a good idea, let’s do it.”

  10. Common Science says:

    Pete – this brilliant deductive offering of yours has to go national. At least garner exposure in the news outlets of Colorado, Washington and Oregon.

    It would make Kevin Sabet and Mark Kleiman go Waco on their respective hotel rooms.

  11. DonDig says:

    Brilliantly decoded Pete!
    You’ve nailed it. Criminalization is of course the point, and yet unfortunately, most never drill down that far. The cornerstone was laid in the wrong place entirely.
    When something goes totally awry it can make sense to abandon it and start over. Generally we prefer to start from where we are, which sounds practical enough, until you realize that may well mean we are simply building upon our mistakes, without correcting them, making the mistake pile impenetrable. I think you’re right that we have to go back to where we were, before prohibition, and start from there.
    I hope there is a precedent here somewhere for completely throwing out a legal concept and starting over with something that makes sense, (decriminalization in Portugal comes to mind, although I don’t know if there is such a case here in the States anywhere).
    Certainly criminalization is one of the larger piles of mistakes ever to need unraveling: however it seems like the correct point to drive the wedge to deconstruct prohibition.
    Again, brilliant work!

  12. darkcycle says:

    One more for the chorus: Pete. That was extraordinary, you are in rare form. That’s the type of post that got me stuck here on the couch! You’re gonna hafta get a bigger virtual couch, because I’m linking this everywhere!

    • claygooding says:

      The reason my first post was so short was because I was trying to type it and share at the same time,,,,

  13. stlgonzo says:

    Great post. It is posts like this that keep me checking this site every day.I know others out their cover some of the same material, but this is my favorite site for drug war info.

    p.s. The Glenn Greenwald link needs to be fixed to the Guardian

    • Pete says:

      Thanks. I read Greenwald daily, but don’t usually go from the links here. Appreciate the heads up.

      • stlgonzo says:

        I figured that was the case. I have made a morning ritual of reading your site and then hitting the link to read Glenn. Thanks.

  14. pfroehlich2004 says:

    Room for Debate at NYT has plea-bargaining (and the concomitant decline in jury trials) as its topic today:

  15. FiddleMan says:

    Wow! This is indeed a great post, Pete!

  16. Hope says:

    “Those who support prohibition have never been required to actually put forth coherent and defendable justifications for criminalization.”

    That’s so right, Pete. And it has angered me so much for so long. It’s truly an outrage.

    How do they keep getting away with it?

    Do we have to keep waiting for this gigantic none sense to end?

    Must we, as those who long for the freedom of the people from such a government intrusion , endure another death? Another pet killing? Another confiscation situation? Another imprisonment? Another armed home invasion by the government? Another terror event visited on citizens and often, and often hideously, their children, by the government?

    Every day it lasts another of these things will happen.

    How can anyone think that is inconsequential or not of the first order of business for the President and the Congress? How is anything the government is doing more important than that?

  17. Freeman says:

    Excellent post!

    You wisely avoided getting side-tracked by the glaring intellectual dishonesties which Kilmer presented in Kleiman’s posted video (which Scott G and Kym Kemp addressed quite well in the comments over there) by recognizing that it is inconsequential to the crux of the issue, and getting right to that point.

    I would love to see Kilmer, Kleiman, et al, answer your 5-part challenge point by point, but since they didn’t even bother to defend the shaky “facts” they seem so sure of when challenged by those with their boots on the ground in the post you linked to, I don’t hold out much hope.

    Of course, when Kilmer is willing to spew something like “to believe those numbers, it suggests that everyone who admitted smoking pot in the past month, had to smoke approximately 12 joints a day every day for the past year”, and when Kleiman is willing to further spin that into “to believe Gettman’s numbers, you’d have to believe that the average person who smokes pot at all smokes twelve joints a day”, I don’t hold out much hope for honest debate from their side in any case. Beau could just as honestly have stated “to believe our government’s homicide numbers, it suggests that everyone who admitted to killing someone in the past month, had to kill approximately X persons a day every day for the past year”, and Mark could just as honestly have spun that into “to believe the government’s numbers, you’d have to believe that the average murderer who kills at all kills X people per day.”

    Thanks for keeping it real, Pete.

    • Duncan20903 says:


      A couple of months ago I read some government estimate for the amount of pot consumed in the US annually, divided it by 310 million and came up with 40 grams for every man, woman, and child in the US. (13,700 tons)

      Looking at the amount of sales tax collected in California and considering how most people enjoy voluntarily paying tax also tells me that my fellow Americans choose to enjoy cannabis or use it for its medicinal utility combined with the reported imported quantities at rates orders of magnitude higher than even people inclined to think that the numbers are understated would believe possible.

    • darkcycle says:

      How did that get by me? I had a question or two I’d like Kev to address. Oh well. And in Seattle too. there’s a nice little readers poll attached, it’s 81% for I502. Yes.

  18. Mooky says:

    Just echoing whats already been said.

    Excellent post, I’m certainly going to share with with others. Thanks Pete! Your great! :).

  19. N.T. Greene says:

    You mind if I show this to everyone I know?

    Gold star stuff, Pete. I have to say: this post is a real ace. Blows right by the opposition and leaves them looking absolutely dumb.

  20. Servetus says:

    Legalization v. criminalization. Freedom v. slavery. Enlightenment v. ignorance.

    Determining if a particular drug is dangerous, (Step-2), would be easier had the alleged dangers not been certified in the first half of the 20th century, and coddled thereafter by reactionaries.

    Up until about 1930, with the exception of arterial ligations, medical science was as up-to-date as it had been in India in the year 1000 B.C.E. After the 30s, the job of the physician expanded beyond comforting the sick and dying because of new medical discoveries. Prohibitionism was on the verge of extinction. Racism saved it.

    Prohibition wasn’t just racism, however, but like most things, a combination of bizarre inanities that included know-nothingness and later an overall rejection of science as if science were a competing culture or religion.

    Today, we know the science on marijuana and other illegal drugs, or at least a good part of it, and the prohibitionists don’t give a damn. Rhetoric is the devil’s snare. To the prohibs, drugs are an emotional reaction to fears unknown, and the fears remain unknown because to know them might cause fear.

    Options for dialogue on the drug issue include improving public education, and delving into some deeper issues related to the basics of the human species based on a backdrop of science and history. It is a curious nut we are meant to crack.

    Otherwise it’s going to take decisive action to loosen the grip of the parasitic prohibitionists. The prohibs have power, and like fleas on a cat, few will give up without a fight.

  21. touches earth says:

    I can not be a lurker on this post i have to stand with it and also say Pete you ARE a DRUG WARRIOR. Aho!

  22. Freeman says:

    Sheesh! These parasitic prohibitionists really need to practice coherence. Some excerpts from Newbie’s Seattle Times link:

    The CSA does allow minor variation – that is why today in Seattle and in most localities (NYC is a glaring exception), people are not arrested and locked up for pot.
    by Kevin Sabet

    I didn’t say no one is arrested for marijuana. There is a larger point there.
    by Kevin Sabet

    (in my home state of CA, for example, few people are arrested and jailed for MJ use, and the DEA doesn’t go after them).
    by Kevin Sabet

    So that means we’d have to have more prisons, more police, and more regulation costs under legalization—especially since few people are in prison or jail solely for marijuana use.
    by Kevin Sabet

    Hi Kevin, what is your solution? There were over 8,000 arrest in Washington for possession last year. Do you think it is best for our society to keep putting people in jail for marijuana?
    by Johnny Onthespot

    I am not saying that we should lock up people for solely using marijuana – and that isn’t happening anyway. I think it was Jon Caulkins from Carnegie Mellon who calculated the arrest rate per joint smoked — there is 1 arrest for every 12,000 joints! Furthermore, most arrests are treated like parking or speeding tickets. So it is not fair to assume “society..keep(s)…putting people in jail for marijuana”. By the way, many possession offenses were pled down from sales/trafficking.
    by Kevin Sabet

    I’m going to guess that Kevin is going to say, “no one’s arrested just for marijuana,” which is absolutely false. When Seattle passed Initiative 75 in 2003, it established a Seattle City Council panel that reviewed implementation of the law. Former Seattle City Attorney Tom Carr produced, from 2000 to 2006, the numbers of all marijuana-only arrests and marijuana-only prosecutions. In 2000, they totaled 55% of all marijuana cases. That percentage reduced to 24% by 2006 (after passage of I-75). And remember, this was SEATTLE.
    by Alison Holcomb

    Alison – I think MJ IS a public health issue. That’s why we need to keep it out of the hands of kids and illegal.
    by Kevin Sabet

    Kevin, please explain the rational for treating it as a crime.
    by Alison Holcomb

    Alison — I’m not saying people should be criminals for smoking pot.
    by Kevin Sabet

    The only reason anybody would listen to this incoherence is that it reinforces the prejudices they already hold.

  23. Duncan20903 says:


    From the New Yorker yesterday:

    One of the earliest accounts was by Meyer Berger, whose “Tea for a Viper” described a visit to a marijuana party in Harlem in 1938. (“Viper” was then a common term for a marijuana smoker, and “tea” was one of many slang terms for the drug. Nicknames abounded in this demimonde: the host of the party was a fellow known as Chappy; his customers included a man named Big Boo and woman who called herself Fruits.) Though Berger did not take any hashish himself, he contrasted some of the more extreme claims about the drug with the experiences related by Chappy’s regulars:

    Federal agents told me that vipers are always dangerous; that an overdose of marijuana generates savage and sadistic traits likely to reach a climax in axe and icepick murders… Medical experts seem to agree that marijuana, while no more habit-forming than ordinary cigarette smoking, offers a shorter cut to complete madness than any other drug. They say it causes deterioration of the brain. Chappy’s customers scoffed at this idea. They said reefers only made them happy. They didn’t know a single viper who was vicious or mad…. They say that marijuana makes the blood pound in their veins and gives them the sensation of suspension in mid-air. As they get high, the walls recede, lights back away, and their legs and fingers don’t respond. Reflexes go haywire. They get to giggling. Time and sound and distance seem to stretch like a rubber band.

  24. Freedom says:

    hey Pete and followers
    are you all members of your local drug user organisations? or internationally there is INPUD.
    great post. i like ur style.

  25. TieHash says:

    OT: I have a question someone here might be able to answer. I see in some of the regulation initiatives there is a personal limit of 1 ounce of cannabis. Question is how much does that translate to in terms of use for an average user? For instance would that be equivalent to a six-pack of to a keg? Would it be enough for someone to throw a party?

    • Duncan20903 says:


      It’s an arbitrary amount and can’t be equivalated due to differences in varietals. The limit is adopted because of the stupidity of those on the outside who for some reason think that commerce in cannabis is wrong and those same dimwits want to be able to label someone a dealer without going to the trouble of actually having to prove it. For some reason these people who hate dealers want to force users to engage in a transaction with a dealer every week or even every day, and at the highest price possible. You’re forgiven if you buy an ounce even if you’re going to sell 3/4s to mitigate your cost, but if they find a few plants that would be used for nothing other than for the grower and his loved ones they’re automatically labeled “dealers”.

      Yes, I realize that the above makes no sense, but that’s how the people outside of our world “think”. At some point will the outside world come to grips with the reality that supply rises to meet demand and not vice versa? I suppose that anything is possible. But it doesn’t seem likely because if these people had any native intelligence in the first place they wouldn’t have come to such spurious conclusions. Regardless, we have to account for the stupidity of these morons beliefs and mitigate their irrational fear in our proposals.

      The correct answer to your question is that 1 ounce is equal to 1/16th of a pound. Nothing more or less. If you want a better explanation you’ll have to ask the lying Sabets of the world to explain themselves but don’t expect their explanations to make any sense.

    • Matthew Meyer says:

      Yes, an ounce of cannabis would be enough for a “tea party.” Maybe a couple dozen good doobies.

    • darkcycle says:

      Went down to Hempfest with two ounces, partied the whole time was there and gave some away, still had a little less than one ounce when I got back after two days of festival.
      But who cares? Presumably every one at that party could possess one. And when you were out, no waiting for that guy named “Shaggy” to return your call. You just go down to the pot store and buy some more.

    • claygooding says:

      There will be very few times that an ounce won’t carry most users until they can make it back for more,,even on a long weekend,,and that is even if it’s brick from Mexico,,but if it happens to be WaterBuffaloStampeding or one of the other strains that run appx $5 per syllable on today’s market,,perhaps 2 weeks.

  26. darkcycle says:

    Ugh. This Via Mike Parent and Facebook (thanks, Mike). Illinois just got a little nastier:

  27. claygooding says:

    About these limit laws and DUI laws legislatures will be passing,as per the request of the drug czar,,,after prohibition ends,,regardless of the hoops thrown up by the prohibs trying to keep their fingers on some kind of control button,,there are no bad laws that marijuana can’t fix,,given time,,because marijuana and knowledge have gotten us this far and I believe it will carry us the rest of the way,,we started at 12>18% support in the 70’s and as the numbers have risen,,the speed of the increased support has been rising and now nearly every poll shows more support.

    What worries me is that the powers running this country are willing to destroy this country before allowing hemp on the open market,,,,

  28. Pete says:

    Thanks, everyone, for the very nice comments on this post, and also especially to those of you who have been sharing it with others. It’s a great community.

    • Plant Down Babylon says:

      Especially you guys that help educate us ‘newbies’ on da couch.

      I try to see the bigger picture re: legalization and everyone here seems to have a grasp of what that is.
      Thanks to all who spend the time explaining/educating that to me!

      I’m amazed by all your posts, Pete. Thanks for the clarity

  29. Jerry Dorey says:

    Superb article, Pete, congratulations!

  30. terpsfan says:

    Long time reader first time writer. This is the best post I have ever seen on your blog. Pete, you and the other regulars are all very informative. Your blog along with a few others really help the movement. I, have been dealing with a rare vascular disease in my leg for 12 years now. It hurts all day everyday, but I do get some relief from cannabis. Then two years ago my wife was diagnosed with MS and she get relief from cannabis (leg pain, headache, numbness, and so on). We should be able to treat our aches and pain any way we see fit. As a father of two wonderful kids, I truly hope they do not have to grow up in a world of prohibition. Your website really does give me good ammo when debating the Klieman’s of the world. Thank you again. I am sorry for lack of punctuation.

    • Pete says:

      Regulars, take note. Your comments here are seen by more people than you realize. Even here on Pete’s couch, you’re making a difference.

      • Duncan20903 says:

        Pete if it wasn’t for this site my interactions with the prohibitionists would certainly have driven me mad months and months ago. Thanks for enabling us!

  31. hal mason says:

    Juicy informaitive useful! Keep pushing the issue !The war is almost out of steam ! The idiots brain-washed in the 30’s and 40’s are dying away ! Leaving a
    fresh mindset in their wake ! GODS GIFT TO MAN should not be used against him!

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