Fear v. Foresight

Fear v. Foresight

 

The only thing we have to fear is fear itself.

F. D. Roosevelt, First Inaugural address

 

President Obama, echoing FDR in a recent address, declared that foreign policy must be based on foresight, not fear.  The same reasoning applies to drug policy as well.  But from the earliest days in the nineteenth century, fear has been the driving force behind American drug laws.

Fear of the “invading” Irish and German immigrants and their social drinking drove the early alcohol Prohibition movement (and Italians with their wine soon joined the growing hordes).  The Californians distrusted their Chinese newcomers and feared the opium dens were luring their daughters into lives of sin.  Cocained Black men, lusting after Southern women were so strengthened by their drugs that normal police bullets would not stop them.  Greasy Mexicans crazed by their “locoweed” would ravage Western farm wives.  In the 1930s, Drug Fear broadened from its xenophobic roots.  Any teenager could be turned into a raging homicidal maniac by one puff of the demon weed, although (as Anslinger told Congress) only 200,000 people, mainly Negro (sic) musicians, used it.  By the 1970s, every suburban parent knew marijuana would make their perfect suburban kids run away from home and become unwashed hippies.  Even today, anything can be done to “protect the children.”

Any politician knows that fear is a great motivator; and since it acts only on emotion, it needs no facts to energize it.  Fear is totally reactive and acts strictly in the present.  When presented with a rattlesnake or a burning house, one must either fight or flee, with no time to look for alternatives or weigh the costs.

Foresight, on the other hand, is proactive and deliberative.  It requires the time and effort to assess the situation, enumerate the possible alternatives, balance their costs against the probable outcomes.  When an action is chosen, a plan for implementation must be developed and the necessary resources must be marshalled.  Simply yelling “snake!” and running away is simpler – until you trip on a rock, breaking your leg and falling face-down into a cactus.

However, foresight rarely leads to the answer.  Most of the time no the answer exists.  Many answers, some more complete than others, exist; and all come with different costs.  Whichever solutions is chosen will also bring with it unintended consequences, which must, in turn, be dealt with.  All solutions bring new problems – and that’s a good thing.

The seduction of a fear reaction is that, at the time, it feels like a permanent solution.  But since it was done reflexively, it was not carefully chosen from all of the possible solutions; and chances are that fear will choose whatever is closest, not what is most effective and least costly.  The fear reaction is reflexive and stereotypical.  When it is not totally effective, the fear situation will recur.  When it does, the new reaction will be the same stereotype, leading to a vicious cycle fear-response, repeated fear followed by repeated response, with no way to end the repeating.

For over one hundred fifty years Prohibitionists have been reacting to drugs (including alcohol) and their users from motives of fear and with stereotypical reflex actions.  First, they try to smash the drug itself with organizations like the Anti-Saloon League and then they try to destroy the users, first with compulsory sanitaria then with prisons and ultimately the gallows.   When these fear reflexes have not worked, they have simply gotten scared again and tried to repeat them – but more violently with each repeat.

Fear of drugs has dug this country into a hole so deep that climbing out of it will be a massive task.  Now is the time to move past fear and start employing foresight.  The first step is to recognize that most of the current problem is not caused by drugs but by the fear-generated response to them.  Many solutions has been proposed, and a large number of those have at least some merit.  The task is to weigh them objectively, calculate both the gains offered and the costs imposed.  More important is to realize that no one of the proposals will solve all the problems, and all will call for additional actions even if they are effective.

The time to start working on them is now.  A voyage of a thousand miles begins with a single step.  Don’t be afraid, just put that first foot forward and begin the trip.

 

Slippery Slopes

Slippery Slopes

 

Governor Christie of New Jersey recently objected to extending minors’ access to medical marijuana, claiming it would be a slippery slope to widespread abuse by minors.  He is not alone; slippery slope arguments have frequently been used by opponents to reforming the drug laws.  In its most extreme form, this argument claims that any relaxation of the drug laws will inevitably lead to a nation of violent, homeless drug addicts with everyone threatened by ruthless cartels.  What is this argument and how does it work?

First year law students fall in love with it because it is easy to make, but they quickly become disenchanted because it is not effective.  It falls in the third part of the old trial lawyer’s advice to novices: “When the law is against you, pound the facts; when the facts are against you, pound the law; when both the law and the facts are against you, pound the table.”  A slippery slope argument is nothing more than pounding on the table while shouting doom and destruction.

The problem is that life itself is a slippery slope.  A baby emerges from the birth canal unto a slope where merely standing is a perilous adventure, and a life-long struggle follows.  Civilization is even riskier: imagine trying to support the population of Los Angeles or Mumbai using only the tools and techniques of humanity’s distant past – or of trying to feed New York if the electricity failed for a month.  As the Red Queen told Alice, here you have to run as fast as you can to stay in the same place.

The only choices are to scramble upward as fast as possible or to slide down to oblivion.  Even if one found a flat spot upon which to stand, it would soon erode out from under him.  And no safety net is waiting.  Change is inevitable, but one can choose between up or down.

If someone presents a slippery slope argument, gently suggest that he is already on a slippery slope and that standing still is not an option.  Drug policy is already on a downward slope.  If nothing is done – or if only more of the same is done, the slide will accelerate into more deaths and disease, more and fuller and more brutal prisons, more people made derelict by unnecessary criminal records, more corruption, and more violent gangs.  More and more money will be spent to accomplish less good.  The only route out of this precarious position is to brave the slope and find a better route leading up the slope of progress.

Progress up the slope will not be easy.  Some parts of the path will be more slippery than others – even scary.  Patches will be slick or composed of loose, rolling rocks, steep cliffs will interpose themselves.  But all of these obstacles can be overcome.  But the alternative is even worse.  Society cannot be allowed to fall into the abyss simply because leaders are afraid to face the future.  If leaders will not lead, then they must be pushed from behind.  The future is open, but only to those daring and willing to climb to reach it.

(May 27 – Happy Birthday to me!)

Smoking Opium Exclusion Act

Smoking Opium Exclusion Act

 

When did American drug Prohibition start?  Most would place the starting date at the passage of the Harrison Narcotic Act in1914, but a better choice would be the passage of the Smoking Opium Exclusion Act of 1909.

The Smoking Opium Exclusion Act was the first federal statute to prohibit the importation or sale of any specific drug and was the only one until the Volstead Act prohibited alcohol in 1919.  This Act prohibited opium in the form prepared for inhalation through smoking although importation and sale of other opium preparations and derivatives, including morphine and heroin, was still allowed.

Like most statutes, the Exclusion Act arose from a mixed heritage.  It came from Manifest Destiny and American Imperialism, from growing international trade, from Xenophobia, and from the Puritanism of the growing Prohibition movement.

By the end of the Civil War the United States reached from coast to coast and then rapidly filled in the intervening empty spaces.  The urge to expand – known as “Manifest Destiny” -- began looking overseas.  The Kingdom of Hawai’i was annexed, and the Spanish-American War added Puerto Rico and the Philippine Islands,  As American control expanded, so did American commerce; and both soon collided with the British Empire.  The focus of this conflict was China, up until that time, firmly under Britain’s thumb.

Administering the Philippines presented a new problem.  Spanish rule had allowed licensed opium shops to sell to Chinese immigrants, and the new U. S. authorities had to decide whether to continue the operation of those shops.  The governor’s advisor charged with deciding this question was an Episcopalian bishop who was a leader in the Prohibitionist movement.  Part of his investigation was to look at opium use in Hong Kong.  He called for a conference to look into the opium issue worldwide to meet in Hong Kong in 1907.  Representatives from many of the leading nations attended.

The timing and subject of the conference were timely and auspicious.  China was undergoing a civil war (known as the Boxer Rebellion) that had unseated the emperor and had seriously weakened British power in China.  The remaining British influence was largely based on its militarily-maintained control of the Chinese opium trade (at least twenty-five per cent of Chinese men were estimated to be habitual smokers).  If that monopoly could be broken, entry by the U. S. and others into Chinese trade would be opened.  The conference called for a formal convention of all major powers to control the opium trade to meet in 1911.  All of the 1907 parties agreed to participate.

America had to figure out how to take advantage of this opportunity to move to the front internationally.  All the facts pointed to the need for some effort of internal opium control to show leadership on the issue.  Constitutional interpretation at that time allowed for little scope of action on the criminal or medical fronts.  The situation in California provided a way to act.

Californians had hated and feared their Chinese immigrants at least since the Gold Rush of 1849.  One of the major focuses of this xenophobia was the opium den, frequently the social center of the Chinese enclaves in Californian towns.  One wide-spread fear was that the opium dens served as lures to draw innocent white girls into lives of depravity.

In the early years of the twentieth century, smoking opium had leaked from the Chinatowns to the liberated youth (of both sexes) who had fled the stifling aura of small towns and rural countrysides for the economic and social freedom of the great cities.  Opium and cocaine, dancehalls and theaters were part of the new society that built away from the censoring eye of families and neighbors.

Smoking opium, all of which entered across the national border, was something within the federal power to control; and that control would position the U. S. as a leader in the fight to limit the opium trade, embarrass the British, help the Californians against the Chinese invaders, and throw a sop to the Prohibitionists.  The Act was passed, forbidding the import of opium prepared for smoking.  Ironically, while mild smoking opium (about seven per cent morphine) was banned, the stronger medicinal opium (around ten percent) was still freely imported and sold, as were the full-strength opiates, morphine and heroin.

Enforcement of the act began almost immediately.  A smuggler moving smoking opium from Mexico into El Paso was arrested and sentenced to federal prison in 1910.  This incident opened a dreary history in Mexican-American relations.  The smuggling moved from opium in 1910 to booze in the 1920s, to heroin during WWII when shipping from overseas was stopped, to marijuana starting in the 1970s, and then adding cocaine and methamphetamine – and continuing today.

Unintended consequences also followed the act.  The price of opium soared almost at once, and availability became problematic.  Users soon found that they could simply step into the drugstore and legally buy heroin for much less than opium cost.  As a result, when the Harrison Narcotic Tax Act made morphine harder to obtain, the street trade was ready to supply heroin to the users.  As the older medical opium and morphine habitués dwindled away, the urban heroin users became the most visible narcotic users; and they provided the image of the addict that developed in the 1920s and is still dominant today.

Next year marks the centenary of the Harrison Act.  But before we gather to mourn its longevity, we should remind ourselves that drug Prohibition actually started five years earlier – with the Smoking Opium Exclusion Act of 1909.

Six Months -- and Still Waiting

 

Six Months – and Still Waiting

 

The votes to legalize marijuana in Colorado and Washington are now six months old – and everyone is still waiting to see what they mean.

How will the federal government respond?  What will happen in other states?  How will legal marijuana evolve in these states?  What will congress do?  Will Mexico feel the effects?  These are just a few of the questions needing answers.

The federal government has been remarkably silent.  The Attorney General has told congress that he will make a policy statement, but has not done so yet.  The President had a meeting with the governor of Washington, but both have been close-mouthed about it.  The President has said that the government has more important fish to fry than prosecuting possessors of small amounts.  ONDCP (whose budget has shrunk drastically over the last few years) issued it annual strategy statement, saying that the emphasis would be on treatment and rehabilitation, not enforcement.

The feds are also silent about enforcement as well as on policy.  Budgetary Sequestration is imposing non-discretionary five per cent spending cuts across the entire government.  What will happen to enforcement efforts if DEA, ICS, DOJ, and the federal courts all are forced to reduce their spending by five per cent?

State action is moving forward.  At least three, probably four, states are likely to have legalization propositions on their 2014 ballots: California, Oregon, and Alaska are almost definite; and the Maine legislature will probably vote to place the issue on its ballot as well.  Legislatures in the old Midwest – Ohio, Indiana, and Illinois seem to be seriously considering medical marijuana.  Momentum is building quickly at the state level.

Action in congress is unlikely in the near future. But even there, the frozen War on Drugs mentality seems to be thawing.  More and more members are willing to at least discuss the possibility of reform.  The most remarkable event is that no congressional voices have been raised in outrage against state reform efforts; no demands for stricter enforcement have been heard.  At the least, congressional attitudes seem to be that they just hope the issue will go away.  At best, several bills have been introduced proposing several mild reform messages.  One more election may make the difference.

These moves in the states will apply pressure on the Mexican Cartels that now supply a significant part of the American marijuana supply.  These effects will spring from the downward pressures that legalization will impose on prices and from the immunity of American growers from border controls.  As medical marijuana has developed into a quasi-legal market, both of these effects have been demonstrated.

Marijuana, as an easily grown, minimally processed annual plant, should cost no more than broccoli or hot-house tomatoes ($0.99/ pound at a recent supermarket trip).  High quality illegal marijuana a few years ago brought $400/ounce, well over one hundred times what its competitive price should be.  But already in California the price has dropped to around one-quarter of what it was a few years ago.  Even with federal law still looming, state-legal marijuana of reasonable quality will probably drop to under $25 an ounce.  Mexican growers cannot compete at this price.

A grower in Washington or Colorado does not have to pass through national border security when making deliveries to Nebraska or New York.  The shipper’s risk of either confiscation or arrest will be dramatically reduced, cutting the cost of shipment by a factor of at least ten or twenty.

Cartel income will certainly decrease, and with it, the capability to buy guns and gangsters to use them and to bribe officials.  Not only will their capabilities shrink, but, since they will be unable to meet the competition, so will their incentives to remain in the business.

The last six months have been quiet, but it is the quiet before the storm.  The ball may appear to be at rest, but it has received a small nudge – just enough to start it rolling down the hill.  It will pick up speed as it goes.  We’re in for an accelerating and thrilling ride.

 

 

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.

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 XVI^th and XVIII^th 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!

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.