SHOULD MARIJUANA BE LEGAL?

Timing is everything and, no doubt, Assemblyman Tom Ammiano hopes
that in economically hard times Californians will be receptive to his
legislation allowing marijuana to be sold and taxed.

Ammiano's proponents claim that taxing sales of cannabis will add
more than a billion dollars to the state's revenues and that his
legislation, Assembly Bill 390, will reduce the prison population and
the cost of prosecuting marijuana offenders, saving an additional
billion dollars. With his legislation, the San Francisco Democrat may
hope to bring together a coalition of those eager to decriminalize
marijuana, members of the public eager for a fix to California's
budgetary crisis, and prison reformers.

Despite what seem like powerful arguments in its favor, Ammiano's
bill has produced sharp criticisms. Critics argue that illegal drugs
will always be cheaper than legal drugs because of a $50-an-ounce
surcharge Ammiano proposes. He also wants to charge wholesalers
$5,000 initially and $2,500 annually for the right to sell cannabis.
Also, critics counter that the bill would not decrease California's
overpopulated prisons because there are not that many imprisoned
whose crimes are for marijuana possession, and that it would increase
marijuana use among adults and children.

While adding a potentially large, new source of state revenue -
especially if it does not come with the increased harm to public
health - and substantially reducing prison costs are worthwhile
goals, claims by those on both sides of the debate fail to win over
those who have no strong opinion about the evils or benefits of
marijuana. And, given the weaknesses of the arguments on both sides,
it's difficult to say whether AB 390 will become law.

But airing the arguments for and against decriminalizing marijuana is
worthwhile.

Ammiano's chief reason for legalizing and regulating marijuana is for
the revenue it would generate for the state. According to Board of
Equalization estimates, regulating marijuana could bring in about
$1.3 billion a year in taxes and fees. Proponents of the bill are
probably overstating the potential revenue. They analogize
legalization of marijuana to legalization of alcohol and tobacco,
which are easily regulated and taxed. Marijuana is different from
good whiskey, wine and tobacco. Making good whiskey and wine and
growing one's own tobacco are difficult. By comparison, marijuana is
easy to grow, which would make it harder to regulate.

Critics of legalization contend that illegal marijuana will be
cheaper than legal marijuana because of the taxes and fees. That
ignores basic market principles: The price of illegal marijuana
reflects the cost of doing business and the risk of being caught.
Further, many buyers would be willing to pay a premium to deal with a
legitimate business person, to know the quality of the marijuana and
to avoid the hassle and danger of the illegal trade.

But, while legalizing alcohol drove bootleggers out of the business
when Prohibition was lifted, illegal marijuana dealers would probably
maintain some of their clientele, even if they had to reduce their
prices. Unless the state creates a way to identify legal vs. illegal
marijuana, the cost of doing business for illegal growers may come
down as well because law enforcement may change priorities in light
of legalization. Thus, California voters motivated by the hopes of a
cash cow may be disappointed with the results of revenue generated by
a legal marijuana crop.

The Policing Argument

Ammiano's argument that AB 390 would free police to pursue more
serious crime has more merit. Laws against marijuana use seem
especially troubling, given the large number of Americans who admit
marijuana use, including two presidents and one U.S. Supreme Court
justice. So, less-punitive attitudes toward drug offenders are
favorable for several reasons. Long prison sentences for those
involved with drugs have contributed to the bloated prison
population, which is overwhelming the state budget. Drug penalties,
for example, for possession with the intent to distribute may rival
penalties for crimes that involve far greater risk to personal
safety. Unlike alcohol use, marijuana use is not associated with violent crime.

Also, prosecution and sentencing for drug possession is not levied
equally across ethnic lines and is heavily skewed against minority
offenders. While about the same percentage of whites, African
Americans and Hispanics use illegal drugs, far more minorities are
prosecuted for drug offenses. Decriminalizing marijuana would reduce
the devastating effects on minority youths sentenced for violating
marijuana laws.

Some of the monetary savings, proponents of the bill claim, would be
based on fewer parolees going back to prison, but that may be
illusory. Many parolees go back to prison because drug tests indicate
marijuana use. But in many instances, prosecutors pursue parole
violations rather than prosecuting other criminal conduct because
parole violations are easier to prove and may provide significant
prison time on the original sentence. Were marijuana no longer the
basis for a parole violation, many of those offenders would end up
back in prison on other charges.

For example, today, if the police suspect a parolee of robbery, the
state may seek revocation of his parole for a failed urine test
rather than pursuing the robbery charge. Parole revocation does not
entail all of the same procedural protections afforded to an offender
charged with a new substantive offense. Were marijuana legalized,
prosecutors would have an increased interest in pursuing the
substantive offense because that would be the only way to take the
parolee off the streets. As a result, some significant number of
parole violators would end up back in prison, cutting into the
proposed billion dollars in savings.

The Lost War on Drugs

Since the beginning of the war on drugs, the United States has spent
billions of dollars in an effort that is, by most accounts, a
failure. Even with significant efforts at the federal level,
marijuana remains widely available to users at all strata of society.

So what then of arguments about increased marijuana use by adults?

Opponents of AB 390 argue that California should not make available
another mind-altering substance. If legalizing marijuana would lead
to a significant increase in marijuana consumption, it would be easy
to side with prohibition. But again, that argument doesn't seem to be
valid. No doubt, legalization would result in a period of
experimentation by some adults who have never tried marijuana. But
most adults who want to try marijuana have done so already: Marijuana
is readily available in California's illegal market and in the gray
market of medical marijuana. The overwhelming majority of those who
sample marijuana do not become frequent users. Brain studies
demonstrate that many substance abusers choose a substance because it
provides a chemical lacking in the brain in sufficient quantity.
Thus, many schizophrenics are heavy smokers because of the effect of
nicotine on their brains. So too, unmedicated depressed individuals
are more likely than their non-depressed peers to be heavy smokers.
Tobacco seems to provide the brain with dopamine and norepinephrine,
neurotransmitters that regulate mood. Marijuana's active ingredients
play a similar role in some of our brains; but the large majority of
the population would segue back to martinis or red wine even if they
were to sample legalized marijuana.

What about children? Opponents of AB 390 argue that legalizing
marijuana sends the message that marijuana use is acceptable and that
its ready availability will lead to increased use among teens. While
there is a deep concern about drug use among teens, it's hard to see
that this argument would hold true. Marijuana is already available to
teens today. Legalizing marijuana would only make it marginally more available.

Even if marijuana were more widely available, teens might not be more
likely to use marijuana. Cigarette consumption provides an
interesting analogy: The amount of money spent on educational
campaigns to curb teen smoking has not correlated to a reduction.
Teens smoke because of image, not because of the threat of wrinkled
skin, lung cancer or heart attacks. Studies show that young people
who smoke emulate "cool" adults who smoke. Shaping the message about
"cool" is difficult, and American society has failed badly to make
marijuana use uncool. At least some in the Netherlands believe that
marijuana usage is lower there than here because its use is legal and uncool.

The Federal Angle

Proponents of AB 390 base their hopes of legalizing marijuana on
statements from U.S. Attorney General Eric Holder that the federal
authorities will not raid state medical cannabis clubs if they are
operating within state law. California needs more than the federal
government's reassurance that it will not raid cannabis clubs before
individuals or businesses can grow and sell marijuana legally. In
effect, the federal government would have to agree never to pursue
federal marijuana law violations against California growers. The
effect would be a de facto legalization of marijuana. Getting federal
approval for such an endeavor is unlikely.

Contrasting the long history of federal law criminalizing marijuana
use with the state's relatively recent approval of medical cannabis,
it's hard to say whether Californians are ready to legalize marijuana
for recreational use. As growers of medical marijuana and cannabis
club operators learned after passage of Proposition 215 in 1996,
state law does not preempt federal law.

It's hard to fault proponents of AB 390 hoping to tax the largest
cash crop in California. Anyone who witnessed the spectacle of the
Legislature's budget morass might hope for a quick fix, marijuana or
stronger! But before the Legislature decides the issue, legislators
should hear from others who are sitting on the fence and haven't made
up their minds whether this is a good idea or not. Thus far, the true
believers have polarized the debate.