Sunday, April 28, 2013

Marijuana and the Young

Marijuana and the Young


When marijuana is legalized, how should use by young people be managed?  Almost all would agree that eight-year olds should not wander around smoking a joint, but finding additional points of agreement and working out the details are more difficult.  The threshold age for use is the first problem, and once this issue is resolved, enforcement methods have to be developed.

Threshold Age: Every statute proposed or adopted so far as simply copied the twenty-one year old age imposed for alcohol purchase or possession, but the twenty-one limit is neither well-established nor supported by any kind of objective evidence.

First, age limits on alcohol first became common after Prohibition repeal in 1933.  When they did appear, they simply copied the traditional age of majority from civil law.  But no one bothered to ask how the capacity to marry or make a contract related to the physiological or psychological capability to metabolize alcohol.  The Viet Nam War brought up the question of why an eighteen-year old could be drafted to be killed in the army but could not vote.  The constitution was amended to allow eighteen-year olds to vote, and many (but not all) states changed their laws to allow them to drink.  This disparity created a major drunk driving hazard when teens drove from restrictive states to road houses and package stores in lenient states.  High school principals complained that their eighteen-year old seniors were providing bad examples – and even liquor to their younger classmates.  In response to these complaints and an organized drive from MADD, the federal government required the states to raise their drinking age to twenty-one in order to receive federal highway funds.  The uniform twenty-one drinking age is, thus, only about forty years old.

New marijuana laws provide an opportunity to avoid, or even ameliorate, the problems caused by the age limit for alcohol.  Eighteen to twenty year-olds drink at about the same rate as those just a few years longer, and with the same pattern of binge drinking.  The consequences of binges include acute overdose deaths, drunk driving, violence, and reckless or non-consensual sex (which, in turn, can result in sexually transmitted diseases and unwanted pregnancies).  Recently, a consortium of over one hundred college presidents and administrators called for lowering the drinking age to eighteen.  They argued that, while drinking by their students was illegal, it was forced undercover on and around their campuses, denying them the ability to control and regulate it.  They claimed that if drinking by their students were legal, they could mitigate the bad effects and teach young people how to be responsible in their use of alcohol.

New marijuana statutes provide an opportunity to do better.  While eighteen is almost as arbitrary as twenty-one, it does have several advantages (but see the “outrageous proposal” below).  First, it is consistent with the age of majority and voting age.  It is the age at which most youths graduate from high school.

More important, legal marijuana at eighteen should greatly reduce the harm done by under-age drinking.  Marijuana users tend to drink less when they are smoking than when they are not, marijuana use does not result in bingeing and does not lead to aggressive or violent behavior and has small effects on driving ability.  Marijuana-smoking college students would be safer than their drinking colleagues.  As the college administrators pointed out with alcohol, they could regulate and supervise legal use, and even teach responsible use to their charges.

Problems of Enforcement:  Actually legalization itself will do a large part of limiting access to marijuana by the young.  As the Monitoring the Future data have consistently shown, underage users report that (illegal) marijuana is much easier for them to obtain than are (legal for adults) alcohol and tobacco.  Street-corner dealers don’t check IDs; retail store owners do.

Delivery by adults to underage consumers (whether for money or not) should remain illegal.  One possible regulation would make delivery of less than an ounce to a buyer over sixteen a misdemeanor and delivery of an ounce or more to any underage consumer or any amount to a child under sixteen a felony.

A major consideration should be to prevent any minor from being subject to the criminal justice system, including arrest as well as trial, sentencing, and a criminal record.  If a minor delivers marijuana (in any amount) to an underage consumer, the matter should be handled administratively, with a non-criminal process used to impose community service or educational requirements on the offending youth.  School supervision of the offender may be necessary, but suspension or exclusion from public schools should never be used.

The same principle of avoiding additional harm should also govern possessory offenses by those under the threshold.  Those sixteen or older should be subject to non-criminal fines without arrest or detention.  For these older offenders, repeat violations might be treated as more serious juvenile offenses, but the violators should never be incarcerated with adults.  Possessors under sixteen should be referred to mandatory counseling, preferably under the control of the school attended, but in the case of a first offense, that counseling should consist of only one mandatory session, with any follow-ups being within the discretion of the counselor.

These two proposals taken together should prevent most of the harms done to young people both by marijuana misuse and by overly aggressive law enforcement.  However, to make the system even more effective, they should be combined with the following…

Outrageous Proposal:  Just like teenagers learning to drive automobiles (much, much more dangerous than marijuana), teens should be allowed to have marijuana learner’s permits.  Society needs to help them prepare to be responsible adults.

A sixteen-year old, with permission of a parent or guardian, should be allowed to qualify for a limited marijuana license.  In order to qualify, the applicant must complete a training course (much like the one-day defensive driving courses now used) and pass an exam on the materials.  The license would be non-transferable, and would be cancelled if used by anyone other than the holder.

Once the license is issued, the holder would be allowed to purchase no more than one-eighth of an ounce on either Friday or Saturday each week.  Smart card technology would make these limitations easy to enforce.  Use of the marijuana in a public place or at a school function would lead to forfeiture.

This license would limit the possibilities of irresponsible use and could lead to the detection of any tendency to compulsive use before habits develop.

Legalization is coming.  But thought, planning, and effort are needed to do it in a way most protective of young people.  Maybe these proposals will encourage that process.

Monday, April 15, 2013

Prohibition and Taxes

Prohibition and Taxes


The Ides of April is the ideal time to look at the relationship between Prohibition and Taxes.  The place to start is to look at the relationship between the XVIth and XVIIIth Amendments.  The untold story is that Prohibition would not have been possible without the income tax.

By 1915, around half the states had enacted some kind of alcohol prohibition law, and groups like the Anti-saloon League and the WCTU were thriving.  But congressmen were giving no serious consideration to national Prohibition.  They couldn’t afford to.  With no income tax, the federal government depended on excise taxes for over eighty per cent of its income, and the vast majority of those came from alcohol.  Prohibition would literally shut the government down.

The Income Tax amendment provided fiscal detox – it enabled the Treasury to break its dependence on alcohol.  A World War intervened, allowing near-prohibition through the subterfuge of war-time rationing; and as soon as the war was over, the Prohibition amendment raced through congress and the state legislatures.

Opposition to Prohibition grew during the twenties, but political support was strong and repeal looked unlikely.  However, by 1930 repeal began rapidly gathering strength.  The election of 1932 swept repeal to an unlikely victory.

(An interesting side note is that maps showing states still supporting Prohibition in 1930, states that have not yet adopted either marijuana decriminalization or medical marijuana, and current “red states” (those voting Republican in the last presidential election) are remarkably similar.)

One important factor in the Repeal victory of 1932, although not the controlling one, was the effect of the Great Depression on taxes.  As unemployment grew and businesses closed, governments – local, state, and federal – found their revenues from both income and sales taxes shrinking just at a time when the need for government expenditures grew.  The return of alcohol excises, while they would not solve the revenue problem completely, would provide a substantial source of new revenues.  Many politicians, even if they did not become public supporters of Repeal, silenced their vocal support of Prohibition.

Does this tale have any meaning for today?  The current Great Recession is mild compared to the Great Depression of the 1930s, but today’s governments at all levels are feeling the crunch on both the revenue and expense sides.  Employment and sales are down, both reducing income tax revenue.  Property prices have plummeted, reducing the property taxes that local governments depend on.  On the other hand, expenses are up: unemployment benefits, uninsured health costs, welfare and subsistence needs.  Governments need money today.

Would excises on marijuana solve these fiscal crises?  No, they would not.  But a ten- to fifteen- percent tax (or even twenty) on a multiple bullion industry would provide some relief.  Surely, reasonable legislators should see that the repeal of marijuana Prohibition is a reasonable trade for this much tax relief.

Happy Income Tax Day, everyone!

Saturday, April 13, 2013

Regulating Marijuana

Regulating Marijuana


“Tax and Regulate” has become the slogan of the marijuana reform movement, but what does it mean?  The phrase unpacks to three separate questions: how should marijuana-related activities be taxed, at what rates and by whom; how can access by young people be controlled; and what regulations should be imposed on commerce in marijuana and marijuana products?  Each of these questions deserves sober (?!) consideration.  This essay will focus only on the third: regulation of commerce in marijuana.

The problems with regulating marijuana spring from three issues: its psychoactivity, its status as an agricultural ingestible product, and its medical use.

Psychoactivity raises concerns about DUI, access by minors (not discussed here), and workplace use.  The two major issues of psychoactivity are DUI and drug-testing.  In spite of three decades of solid scientific testing showing that marijuana use creates a very small risk, if any, of increased driving dangers, most people equate marijuana-influenced driving with alcohol-impaired driving.  The result looks as if most states will enact draconian impaired driving laws imposing criminal liability either on a absolute liability basis or on unrealistically low blood levels (some current ones impose liability on barely perceptible blood levels of non-impairing metabolites that remain in the body long after any impairment has disappeared).  Unfortunately, these laws will probably have to be attacked piecemeal in the courts on the grounds that they are arbitrary and totally lacking in scientific basis.

Drug-testing is now rampant, but in jurisdictions with legal marijuana, they too will be subject to attack on the lack of any provable connection with impaired performance.  However, businesses are already moving away from these tests because they show no economic return for their costs.


Why should a legal marijuana grower be limited in the size of the crop or be required to have a license?  Both of these regulations assume that use will skyrocket and that illegal gangs will continue to be the suppliers and will persist in their violent, illegal methods.  Neither of those things happened when other Prohibitions were ended.

Quantity limits are not needed.  They spring from fears of escalating demand and widely increased use.  However, the accumulated evidence is that removal of legal penalties does not increase use nor does rather drastic changes in price.  This evidence comes from those states that have decriminalized or allowed medical marijuana and from foreign jurisdictions like the Netherlands, Portugal, and Italy.  Demand will set the limits on both crop size and price.  Although some jurisdictions may try to limit the right to grow, increased pressure from more liberal neighbors will soon remove those limits.

Licensing is also based on the idea of criminal growers and the need for background checks.  But does anyone care if a potato grower has a non-violent felony record?  Retail outlets should be limited no more than those for alcohol or tobacco, and for the same reasons.

Land use regulation will still be needed, but this need is easily met by current zoning and land use powers.  However, in this area, like the others discussed above, fear will probably drive early efforts to be too strict; and time and competition will eventually rein them in.

Public consumption should not be regulated, except for smoking.  Public objection to sidestream smoke will probably lead to bans on indoor smoking in public places.

Since marijuana is ingested, it will need the same kind of regulation imposed on other edible agricultural products.  Production, handling, and storage regulations are necessary to prevent pesticide residue, mold, and chemical contamination.  Labels of origin and organic certification could be useful.  Prepared consumables containing marijuana-derived ingredients should be labeled for their content and a measuring system is needed to label these products’ potency.

Marijuana botanists have performed brilliantly over the last half century, and their works should be protected and extended.  Something like the Plant Patent system to identify and protect the various strains is necessary.  A genetic library and bank to collect, identify, and preserve varietals would be extremely useful.

Medical use of herbal marijuana and extracts require even more control.  A mandatory labeling should be imposed that requires packaging that lists the major medicinal components of the contents, both by name and by quantity.  These labeling criteria will probably expand as research continues into all of the cannabinoids and their synergetic effects.

Both Congress and the state legislatures have their work in front of them even after Prohibition is ended.  But the good news is that the more marijuana is integretated into mainstream commerce, the easier the job will be.