The Moderation Conversation: Debating Marijuana Legalization

This is the third installment of “The Moderation Conversation,” an RM feature in which Matt and Chris get together for a live chat and then heavily edit the subsequent transcript.  The conversation topic for this edition was marijuana legalization.  As you prepare to watch the so-called Super Oobie Doobie Bowl on February 2, why not take a minute to read our debate about the future of licit Jolly Green in the United States?

Legalization vs. Decriminalization

Chris: Alright, so this conversation is going to be about marijuana legalization.

Matt: Or decriminalization, as it were.

C: Ooh!  Or decriminalization, whichever. Well, which one… I guess that’s important.  Which one are we talking about here? 

M: Well, what inspired this conversation was a really interesting Bloggingheads episode that we both watched recently, featuring Andrew Sullivan from The Dish and David Frum from The Daily Beast.   And that episode was ostensibly focused on the issue of marijuana decriminalization.  Well, actually, I guess it was focused on legalization.

C: It touched on both. 

M: But they are separate issues, and we should probably discuss that a little bit.

C: Okay. I guess we could start there. 

M: So my view is that the decriminalization position makes a lot more sense than the legalization position.

C: Okay.

M: But I’ve sort of changed my mind about this over time.  I think I used to be a lot more supportive of the idea of legalizing marijuana, and the reason was that I think we’ve been much more effective at controlling the use of tobacco and alcohol by having a regime where those things are legal but regulated and taxed than a regime where they are banned outright.  And I assumed that the same thing could apply to marijuana.  What changed my mind was a lot of discussions that I had with my roommate in college, who was opposed to the idea of marijuana legalization. I remember talking to him about a group at Haverford called the Cannabis Law Reform Club.  And when I made this argument to him about how legal marijuana would be more easily controllable marijuana, his reply was that “these people are not trying to legalize marijuana so that people will use less of it”.  And that really got me thinking about whether the actual motivations of pro-marijuana activists are in sync with my own. 

C: Okay. But you would say that decriminalization is a proper step?

M: I think so.  I agree with the argument that the enforcement of marijuana laws has had a disproportionately negative impact on poor and minority individuals. Given the fact that marijuana doesn’t seem to have very serious negative effects on behavior and doesn’t seem to lead to egregious criminal activity, I think there are strong arguments in favor of directing our law enforcement resources to better uses.

C: So my question, then, is that if we’re both willing to say that decriminalization is probably a social good, why not take that extra step and make marijuana legal?  If you decriminalize it, you have to assume that most people will be able to gain even easier access to it than now.  I mean, you’re essentially just going to have people paying fines for trying to acquire marijuana.  

M: Well, I think this is where we need to define our terms a little more precisely. I think by decriminalization we mean removing or reducing criminal penalties for people possessing or using marijuana, whereas by legalization we mean permitting in addition to that the production and sale of marijuana or marijuana products.  And what worries me about outright legalization is the fact that, once we take that step, we will have a marijuana industry with an economic interest in making marijuana more available and in lobbying against any restrictions or regulations on it that we might want to pass in the future.

C: I don’t know if that constitutes enough of a reason to prohibit the legalization of marijuana, especially if its impact on health is equivalent to or less than that of alcohol, tobacco, or even something like junk food. I agree with you that it would be much more difficult to have any sort of meaningful, extensive rollback of them, and like alcohol it could certainly become something that people can abuse.  But marijuana essentially has the same type of effect as those other substances.  For the most part we don’t think it’s addictive.  No scientific studies have shown it to be strongly addictive. 

M: There is evidence that it’s harmful to at least certain populations.  My understanding is that marijuana has negative effects on cognition and learning ability in young people and adolescents. 

C: I mean, I assume any sort of legalization would only be for people 21 or older.

M: Well sure, but in the grand scheme of things, marijuana hasn’t been studied scientifically for that long.  And given that we know that there are at least some harms to at least some people, if future research on the long term effects of marijuana use shows there are other harms that we didn’t know about, then we’re going to want to react to those harms by introducing new regulations.  And my fear is that that future debate will be distorted by the influence of an industry that has an interest in spreading misinformation about the harms of its product and in lobbying against sensible public policies.

C: That presupposes that any sort of product that might have a detrimental effect on its users should not be legalized. I don’t know if that’s justifiable.

M: I would argue that in the case of marijuana, we have more than ample reason to suspect that more harms might become clear to us in the future.  I don’t think I’m just shooting in the dark here by saying that other harms might become apparent over time.

C: That’s fair.

M: Especially given the fact that we haven’t yet experienced a legal regime where many people are engaged in using marijuana on a regular basis.

C: So you’d say, use Colorado as a test case?  See how that has an impact on the community, on users, over the course of a year, two years, however long?

M: Sure.  And if Coloradan society collapses, then I guess we’ll know not to go ahead with this on a nationwide basis.

C: [Laughs]


The Tobacco and Alcohol Analogies

C: At the same time, though, it seems hypocritical then for us to permit legal use and distribution of alcohol and tobacco, which are arguably more harmful.  We don’t see any type of initiative to push back against those things.

M: I agree, though I would make two points here.  One is that in the Bloggingheads episode with Frum and Sullivan, Frum makes the point that if someone invented tobacco or nicotine today and wanted to get FDA approval to sell that as a recreational drug, there is no way that it would be legal.  And I think that the only reason that cigarettes are still widely available is because of accidents of history.  We’ve known for some time that it’s not really something that is good for people.

C: Tobacco has addictive qualities and no redeeming value.  And it’s clearly shown to cause cancer.  There’s no evidence to show that marijuana is nearly as harmful.

M: Well, leaving that aside for a minute – I just wanted to respond to your point about how there really is no political movement afoot today to introduce significant restrictions on tobacco and alcohol use.  That may be true, but there is some movement to try to restrict those things.  There have been efforts in the past few years to try to put more graphic warning labels on packages of cigarettes, or to restrict where cigarettes can be sold, or to restrict smoking in public places. Or even to ban certain kinds of alcohol.  I read recently about an initiative somewhere in the Midwest to ban certain high-proof kinds of alcohol like Everclear.

C: Oh, yeah. No, that’s certainly justified.

M: But I think the reason that those movements haven’t been more successful is because of the fact that they’ve had to go up against an organized lobby, an organized tobacco industry that has fairly deep pockets that it can dip into to spend fighting these measures.  And I worry about the same thing happening with marijuana.

C: Is that enough of a justification to not allow individual use of the drug?  Because it seems like you’re focusing on the greater social harms that will come from these corporations instead of the actual use by people, which… we can say that using marijuana is perhaps not an optimal use of their time, but I don’t think it’s guaranteed to be harmful.

M: I agree, which is part of the reason I support decriminalization. I think that we should be focused on the power of the hypothetical marijuana industry – well, I guess in some states now, the not-so-hypothetical marijuana industry – and less on the clearly relatively harmless teenager who’s smoking pot in his basement. 

I also just wanted to make another point about the Bloggingheads episode. I have a lot of respect for both Andrew Sullivan and David Frum, and that’s why I thought this episode was really interesting to watch, but I thought that Andrew Sullivan relied very heavily on emotional arguments.  He repeatedly made the point that marijuana has helped some of his personal friends deal with illness and deal with suffering, and David Frum agreed with him that marijuana should be investigated for medical applications. But those personal appeals don’t necessarily mean that we need to move to outright legalization.

C: That’s true.  I mean, I think the other arguments Sullivan made, the arguments we’ve been discussing so far, I think they hold up without that type of emotional appeal.

M: Mhm.

C: We had talked earlier about how you were concerned that Sullivan almost seemed to be advocating a pro-marijuana position.   And I agree with you that that’s definitely problematic.

M: Pro-marijuana in that he was…?

C: Advocating the benefits of smoking.  You know, he cited personal experiences with friends to show that marijuana can be good in social settings, like the equivalent of having a glass of wine.

M: Yeah, it wasn’t just an argument that it should be tolerated, it was an argument that people should use it.

C: Yeah, and I don’t think that’s the correct argument that people in support of marijuana legalization should be making. 


What Should a Legal Marijuana Regime Look Like?

M: So I would ask you then – in light of the concerns I’ve raised – what would you envision as the basic contours of an ideal legal marijuana regime?

C: I certainly think you need to start with an age restriction, so 21 and over makes sense.

M: Okay.

C: I know that’s not going to be effective in combatting people smoking underage, but I would imagine that right now it’s relatively, perhaps not as easy as Sullivan cites in the Bloggingheads video with Frum – he says it’s very easy for teenagers to get pot.  I imagine that it’s more difficult than Sullivan suggests, but not terribly difficult if you were seriously interested.

M: Well, neither of us really has any experience with how easy or difficult it is to get pot, so I don’t think we’re the best experts on this.

C: [Laughs] That’s true.

M: One thing I think we should note is that our positions on this issue do not in any way reflect our personal consumption patterns. 

C: Yeah, I’ve not smoked.

M: I haven’t either. But many of my best friends use marijuana.

C: [Laughs] Yeah, so we’d probably start with an age restriction.  My concern would be driving while high.  That’s something we’d have to have some sort of very strict policy on, that if you’re caught… although I know there’s no good way to measure when someone has smoked.

M: Right, that’s one of the things Frum brought up. That because marijuana stays in your system for so long, there’s no way to determine whether someone’s currently high in a rigorous way.

C: That’s a very valid concern.  I think we’d have to have some sort of technology that allows officers to at least get a general idea of when you’re smoking, and I think, as harsh penalties as possible for people who do drive while stoned. 

M: Although Andrew Sullivan at one point came dangerously close to making the argument…

C: Yeah, he did…

M: …that people are actually better drivers while stoned.  [Laughs]

C: I totally disagree with that.  I do not know why he was on the verge of making that case.  He said that it’s nowhere near as bad as driving while drunk, but that does not mean it’s okay.

M: Exactly.

C: So you had suggested before the possibility of making it so that people can purchase marijuana but not allowing any sort of large-scale manufacturing of marijuana.  I’d wonder if there would be a way to implement a type of policy that would allow either marijuana growers or sellers to have only a certain capacity for expansion to reduce the risks of what you’re talking about.

M: Well, I think it would be difficult to have those types of restrictions, which is one of the reasons why I oppose legalization. I think it’s difficult to create a legal regime that has effective safeguards against the kind of things that I worry about.  So, yeah, I would say I think we should do whatever we can, if we do legalize marijuana, to limit the concentration of power in the marijuana industry. But I don’t see how you can easily do that.

C: I still don’t know if fear of this type of – maybe not monopolistic but certainly large-scale – corporate behavior is enough to preclude legalization.  I don’t think that’s enough of a basis. But I agree with you that it would be worth making sure there are policies in place that don’t allow for a repetition of what happens with big alcohol or tobacco.

M: Yeah.  You mentioned having a legal marijuana age.  I would add that I think it’s very important to do what we’ve done with cigarettes and make it illegal to try to market to young people.

C: Definitely, yeah.

M: One of the things Frum was most concerned about was that marijuana – people who want marijuana to be legal say that marijuana enforcement disproportionately affects the poor and minorities.  But he believes that if there’s a legal marijuana industry, that industry itself will target the poor and minorities because historically those communities have been targeted by the cigarette industry and alcohol industry, and there’s no reason to think things would be different with a new legal substance.

C: Mhm. I agree with you.

M: So, you know, no Joe the Camel smoking joints.

C: [Laughs]


Paternalism and Laissez-Faire

C: I wonder if we were to initiate some sort of legalization measure, if there would be an avenue for getting people to really consider how they’re using it.

M: Yeah. I mean, I think we should be encouraging moderate use, but I also think it’s naïve to suggest that if marijuana is legalized then there will not be a significant incidence of irresponsible use.

C: Mhm.  I appreciate Frum’s admission in the video that his arguments are somewhat paternalistic.

M: Yeah, Sullivan asked if he would concede that they’re paternalistic, and he said that he would not just concede it, but proclaim it.

C: [Laughs] I sympathize with him over his point that any sort of legalization initiative or decriminalization initiative presents just another barrier for people to spend their money and time in productive ways.

M: Mhm.  It puts a lot of temptations in their path that wouldn’t have otherwise been there.

C: Right. Again, I don’t know if that’s enough of a justification to avoid legalization.  I don’t quite buy that.

M: I’m very sympathetic to Frum’s position, so I guess I’m okay with being somewhat paternalistic, but I was a little bit worried by some of the arguments that Sullivan was making at one point about how it is entirely normal and appropriate to want to have a release from the – his phrasing was something like “a release from the daily ordeal of existence.”

C: Yeah.

M: And I agree with him that harmless pleasures are an important part of life, but I think that it’s very easy to see – as Frum sees it – the concept of release or escape from the ordeal of life shading into a sort of escapism or use of substances as a way to not engage with the real world.

C: Would marijuana necessarily result in a higher incidence of that type of escapism?  Because you already have people – Frum was making the case that this disproportionately affects low-income people, those who are currently most disadvantaged.

M: Sure.  They would be the most tempted to –

C: Right.  But you could say right now that people use alcohol or other drugs as a kind of escapism. That’s something they’re currently doing, so why would marijuana –

M: I think that’s problematic.

C: It is. But would marijuana necessarily increase that?

M: Well, I don’t know.  Sullivan seems to think that to some extent people will be substituting the use of marijuana for alcohol, so legal marijuana might lead to less drinking.  I don’t know about that.  I think it’s hard to say that the aggregate use of substances wouldn’t just increase.

C: I don’t know how we’d really determine that.

M: We’d have to do studies.  We’d have to look at those Colorado guinea pigs.

C: [Laughs]


Finding Common Ground

M: I take the point that many people can use marijuana and not really be harmed by it.  In fact, as Sullivan seems to believe, maybe even benefit from it.  But the reason I’m generally opposed to marijuana legalization is not because I think each and every person that uses it will be harmed by it, but because I think the regime that would need to be created in order for people to have access to it would necessarily have costs that I’m uncomfortable with.

C: Okay. That’s understandable. I share many of your concerns.

M: I think it will be interesting to see how this whole issue develops over the next several years.

C: I assume that more states will attempt to pass laws similar to Colorado’s.  If we keep getting more of that, we should have a pretty good sample population to work with in the future.  It will be interesting to see if somewhere like California expands beyond just medical marijuana, because that would be a huge population.

M: What’s most fascinating at this point is that marijuana is still illegal in the United States.

C: Right!

M: I read an article recently pointing out that in Colorado, when the state issues licenses to people to sell marijuana it’s essentially issuing licenses to commit a felony.

C: [Laughs] How do you think that will play on the federal level going forward?

M: It seems at this point like the federal government is willing to take a pretty hands-off approach provided people are following state law.  And so I think we’re nearing the point of de facto federal legalization of marijuana, if we haven’t already reached it.

C: Or at least decriminalization?

M: Or, sure, decriminalization, because the laws aren’t being aggressively enforced.

C: I think it’s worth noting that regardless of our different positions on the issue, we certainly don’t think the constant use of marijuana is a social good, so we’re not advocating that.

M: Sure. The Frum-Sullivan video is part of a new video series at Bloggingheads called “The Good Fight,” which is supposedly going to host debates that not only highlight disagreement but work towards productive areas of consensus, and so I think in many ways the goal of that video and that series is very similar to what we’re trying to do here.

C: Yeah. We both agree that decriminalization is worthwhile.

M: Sure, and we both agree that the immoderate use of marijuana is not good for the individual or the society, as is the case for comparable substances like alcohol. 

C: Sounds like our work is done.

M: [Laughs]