When voters in Washington and Colorado approved state ballots legalizing marijuana on November 6, they put the states' lawmakers in the uncomfortable position of having to navigate a new gap between local and federal drug laws.
Many of the questions faced by local law enforcement were only hypothetical when criminologist Mark Kleiman's latest book, Marijuana Legalization: What Everyone Needs to Know, was published in July (with co-authors Angela Hawken and Beau Kilmer). Now, the UCLA professor is following every legal development in these “laboratories for democracy” to assess their impact on criminal justice policy.
Kleiman talked with TCR's Deputy Editor Graham Kates about the new laws and whether the states can learn from the mistakes of California's medical marijuana system.
The Crime Report: Why do so few politicians from either party support pot legalization, even though increasing numbers of voters seem willing to legalize it outright or for medical purposes?
Kleiman: My belief is that the politicians are not fools. They know how voters react, and it's entirely possible that a voter who would himself vote for legalizing marijuana would not vote for a legislator he was told was soft on drugs.
That's true with me and the death penalty. If you ask me as an abstract question, 'Are you for the death penalty.' I'd say, 'Yeah.' But if a legislator votes for the death penalty, I would definitely vote for the other guy. I would just assume he's a scoundrel. It's been regarded as a moral issue and, in particular, that your position on marijuana is a measure of your own moral standing.
TCR: Opponents of Colorado's version of outright legalization worry that the state will be inundated with pot tourists; do you expect that to happen?
Kleiman: No, the people aren't going to go to the pot. It's just not that hard to get pot wherever you are. I can, however, imagine the pot going to the people. I can imagine massive exports from Colorado.
TCR: One of the interesting details of the Colorado law is that it allows for a few plants to be grown inside the home. Is there any precedent for that kind of controlled substance market?
Kleiman: No and that detail is crucial, because there's no way the feds can shut it down. The regulated grow-and-store system is easy for the feds to shut down, but with homegrown, nobody's registering, nobody's licensed — that's the one with the ability to crash the entire national cannabis market.
TCR: Is that a good thing?
Kleiman: Probably not. My view is that as an illegal drug, cannabis is already cheap enough. It's probably cheaper per hour of intoxication than beer. I don't want to make it any cheaper than that. But certainly, if you're going to take the cost from health and whatever other damage there is from pot, then you might as well not have it be criminal.
To have an entire criminal market of cheap pot really seems like the worst of both worlds.
TCR: Are pot-based businesses in Colorado going to be able to get loans from federally insured banks?
Kleiman: It's going to be harder to get financed; it may be harder to get rented space. If the IRS wants to play hardball, they can decide that your costs of goods are not legitimate business expenses, so they can end up taxing you on your gross. There are a lot of things that can be done to make this uncomfortable; that's the reason home growing is so important.
TCR: The federal government has waffled a bit in how strictly marijuana laws are enforced in California: do you expect similar uncertainty in Colorado and Washington?
Kleiman: They're unsure at the moment what to expect from the federal government. I actually think there was some deliberate misunderstanding by marijuana advocates of what was in the Holder memo. If you read that memo carefully, it does not say, 'Go ahead guys, run a billion-dollar dope racket claiming it's medical and I'm going to leave you alone.' It says basically, that we will not give high enforcement priority to interfering with the needs of legitimate patients in an activity that's in accordance with state law — I'm not quoting this exactly here — we're going to go after large for-profit dope dealers.
TCR: Is that what California has?
Kleiman: Yes. Almost nothing in California is actually in accordance with state law, which specifies collectives. All the stores are actually sole-proprietorships. They're for-profit enterprises.
We had more dispensaries than The Netherlands had coffee shops. The medical veneer was extremely thin. I went into a dispensary in Westwood — where UCLA is — because I wanted to learn about prices. To be fair to them, they said, 'If you don't have a card, we don't want to talk to you… but, here's the contact information for our doctor.” And they handed me a laminated card with lots of paisleys and stuff on it, for the doctor they worked with. It said among other things, 'If we do not give you a recommendation, your visit is free.'
There's another doctor in Westwood that has on the storefront a double column list of symptoms for which he will recommend cannabis, just in case you're too stoned to remember what you're supposed to be pretending to have.
TCR: Why is it up to the federal government to crack down in California, instead of state law enforcement?
Kleiman: Nobody, as far as I know, has been prosecuted for not being a collective.
The law is called SB-420. Starting with 420, the whole thing is a wink and a nudge. And the justification for not messing with what was, after all, against federal law was that this was medical practice—and medical practices are regulated by the states, not the federal government.
TCR: Questions of legality aside, is there anything bad about the fact that it's a 'wink and a nudge'?
Kleiman: It seems to me that subterfuge is generally bad. The voters were told that they would be taking care of people with AIDS and cancer and that's simply not a description of the actual customers. If you go to the dispensary website, you won't see anything that's medical. One of the websites — Harborside (which the U.S. Department of Justice is attempting to close) — actually did have the chemical content of their products, but the rest of them just have poetic trade names. Purple Hindu Kush, Green Dragon, Couchlock.
TCR: Why is marijuana classified by the FDA as a drug with no accepted medical use?
Kleiman: The Controlled Substances Act sets out the criteria for five schedules. Schedule 1 is 'No accepted medical use.” Schedule 2 is “Accepted medical use and potential for abuse.” Then there are lower levels of risk: three, four and five. There's no place in the federal law for a moderately risky non-medical drug. The law just doesn't imagine that such a thing exists.
There are all these petitions to reschedule it, but the courts have said it doesn't have accepted medical use unless there have been the two controlled trials needed for FDA approval, and nobody's done that.
Even if they made it a Schedule 2 drug, you still couldn't get it without a prescription, and you can't get a prescription for something the FDA hasn't approved. So all roads here lead to the FDA. Somebody's got to do the work and bring the FDA two well-controlled clinical trials showing the safety and efficacy of some very well defined cannabis product produced under good manufacturing practices, which means you can get the same material for every dose.
Now, the feds have been unreasonable in not letting somebody set up a production facility for that and I think that's unconscionable.
TCR: In a column you wrote for TCR you mentioned using Washington and Colorado as 'laboratories for democracy,' what does that mean?
Kleiman: A lot of voters obviously want to legalize marijuana, but they're often not very well informed, because we have no idea what the consequences are. There's only so much you can know about the consequences of legality if all you can study is illegality.
Given that it's likely we're going to be changing our policies, it would be nice to know in advance what the consequences are, but it's hard to do that without actually trying it.
We don't want to try it at a national level, because that would be very hard to undo if it went wrong. So the place to try is in some district or territory and the whole world can learn a lot from letting Colorado and Washington play their game.
TCR: If tomorrow a legislator proposed a law making pot legal federally, would you be in favor?
Kleiman: If we were to do this federally, my personal preference would be for grow-your-own rather than having a commercial market.
If I had to choose between the current prohibition and some sort of legal commercial availability, I'd choose legal availability. But then the question is: how can you design that to minimize drug abuse? I guess if I had to do it myself, I'd do state stores.
Graham Kates is deputy editor of The Crime Report. He welcomes comments from readers.