Pubdate: Mon, 20 May 2013
Source: New York Times (NY)
Copyright: 2013 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Bill Keller

HOW TO LEGALIZE POT

THE first time I talked to Mark Kleiman, a drug policy expert at 
U.C.L.A., was in 2002, and he explained why legalization of marijuana 
was a bad idea. Sure, he said, the government should remove penalties 
for possession, use and cultivation of small amounts.

He did not favor making outlaws of people for enjoying a drug that is 
less injurious than alcohol or tobacco.

But he worried that a robust commercial marketplace would inevitably 
lead to much more consumption. You don't have to be a prohibitionist 
to recognize that pot, especially in adolescents and very heavy 
users, can seriously mess with your brain.

So I was interested to learn, 11 years later, that Kleiman is leading 
the team hired to advise Washington State as it designs something the 
modern world has never seen: a fully legal commercial market in 
cannabis. Washington is one of the first two states (Colorado is the 
other) to legalize the production, sale and consumption of marijuana 
as a recreational drug for consumers 21 and over. The marijuana 
debate has entered a new stage.

Today the most interesting and important question is no longer 
whether marijuana will be legalized - eventually, bit by bit, it will 
be - but how.

"At some point you have to say, a law that people don't obey is a bad 
law," Kleiman told me when I asked how his views had evolved.

He has not come to believe marijuana is harmless, but he suspects 
that the best hope of minimizing its harm may be a well-regulated market.

Ah, but what does that look like? A few places, like the Netherlands, 
have had limited legalization; many jurisdictions have decriminalized 
personal use; and 18 states in this country have approved the drug 
for medical use. (Twelve others, including New York, are considering 
it.) But Washington and Colorado have set out to invent a whole 
industry from scratch and, in theory, to avoid the shortcomings of 
other markets in legal vices - tobacco, alcohol, gambling - that 
lurched into being without much forethought, and have supplied, along 
with much pleasure, much misery.

The biggest shadow hanging over this project is the Department of 
Justice. Federal law still makes felons of anyone who trades in 
cannabis. Despite the tolerant drift of the polls, despite evidence 
indicating that states with medical marijuana programs have not, as 
opponents feared, experienced an increase in use by teenagers, 
despite new moves toward legalization in Latin America, no one 
expects Congress to remove cannabis from the list of criminal 
substances any time soon. ("Not until the second Hillary Clinton 
administration," Kleiman says.) But federal authorities have always 
left a lot of room for local discretion on marijuana enforcement. 
They could, for example, declare that they will prosecute only drug 
producers who grow more than a certain amount, and those who traffic 
across state lines.

Attorney General Eric Holder, perhaps preoccupied with scandal 
management, has been slow to come up with enforcement guidelines that 
could give the states a comfort zone in which to experiment.

One practical challenge facing the legalization pioneers is how to 
keep the marijuana market from being swallowed by a few big 
profiteers - the pot equivalent of Big Tobacco, or even the actual 
tobacco industry - a powerful oligopoly with every incentive to turn 
us into a nation of stoners.

There is nothing inherently evil about the profit motive, but there 
is evidence that pot dealers, like purveyors of alcohol, get the bulk 
of their profit from those who use the product to excess. "When you 
get a for-profit producer or distributor industry going, their 
incentives are to increase sales," said Jonathan Caulkins of Carnegie 
Mellon, another member of the Washington consulting team. "And the 
vast majority of sales go to people who are daily or near-daily consumers."

What Kleiman and his colleagues (speaking for themselves, not 
Washington State) imagine as the likely best model is something 
resembling the wine industry - a fragmented market, many producers, 
none dominant.

This could be done by limiting the size of licensed purveyors. It 
would help, too, to let individuals grow a few plants at home - 
something Colorado's new law permits but Washington's does not, 
because polling showed Washingtonians didn't want that.

If you read the proposal Kleiman's team submitted to Washington 
State, you may be a little boggled by the complexities of turning an 
illicit herb into a regulated, safe, consumer-friendly business. 
Among the things on the to-do list: certifying labs to test for 
potency and contamination. (Pot can contain, among other nasty 
things, pesticides, molds and salmonella.) Devising rules on 
labeling, so users know what they're getting.

Hiring inspectors, to make sure the sellers comply.

Establishing limits on advertising, because you don't want allowing 
to become promoting.

And all these rules must account not just for smoking but for pot 
pastries, pot candies, pot-infused beverages, pot lozenges, pot ice 
cream, pot vapor inhalers.

One of the selling points of legalization is that states can take a 
cut of what will be, according to estimates, a $35 billion to $45 
billion industry and earmark some of these new tax revenues for good 
causes. It's the same tactic used to win public approval of lotteries 
- - and with the same danger: that some worthy government function 
comes to depend on creating more addicts.

And how do you divvy up the revenues? How much goes to offset health 
consequences? How much goes to enforcement? How do you calibrate 
taxes so the price of pot is high enough to discourage excessive use, 
but not so high that a cheap black market arises?

All this regulating is almost enough to take the fun out of drugs.

And then there is the issue of drugged driving.

Much about the chemistry of marijuana in human beings remains 
uncertain, in part because the government has not supported much research.

So no one has come up with a pot version of the breathalyzer to 
determine quickly whether a driver is impaired.

In the absence of solid research, some legalization advocates insist 
stoned drivers are more cautious, and thus safer. (Hands up if you 
want Harold and Kumar driving your taxi. Or piloting your airplane.) 
On this and much else, Washington and Colorado will probably be 
making it up as they go, waiting for science to catch up.

And experience tells us they are sure to get some things wrong.

New York decriminalized possession of small amounts of pot way back 
in 1977, with the condition that there be no "public display." The 
lawmakers meant to assure that you partied at home, not in the parks 
or on the sidewalks.

They did not envision that this provision would create a pretext for 
throwing young black and Latino men in jail. When police in New York 
City stop and frisk, which they do a lot in rougher neighborhoods, 
they order their targets to turn out their pockets and - whoa, public 
display, come with us, son! Gov. Andrew Cuomo is promoting an 
amendment to curb that abuse of power.

On the opposite coast, California demonstrates a different kind of 
unintended consequences. The state's medical marijuana law is such a 
free-for-all that in Los Angeles there are now said to be more pot 
dispensaries than Starbucks outlets.

Even advocates of full legalization say things have gotten out of hand.

"It's a bit of a farce when you can watch people come out of a 
dispensary, go around the corner and resell their drugs," said Gavin 
Newsom, the lieutenant governor and former San Francisco mayor, who 
favors legalization. "If we can't get our medical marijuana house in 
order, how do we expect voters to deal with legalization?" He is now 
part of a group discussing how to impose more order on California's 
medical marijuana market, with an eye to offering broader 
legalization in 2016. And, he told me, his state will be paying close 
attention to Washington and Colorado, hoping somebody can, as Mark 
Kleiman puts it, "design a system that gets us to 'orderly' without 
getting us to 'way too stoned.' "
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MAP posted-by: Jay Bergstrom