POT SHOTS AT PROP 19 FALL FLAT

The Heritage Foundation recently published a legal memorandum that
expresses alarm about the upcoming ballot initiative in California,
Proposition 19, which would basically legalize cannabis. The paper
warns that the measure will bring negative consequences--crime, birth
defects, and social dislocation--so its analysis warrants a close read.

To support its conclusion, the memorandum makes many claims. Let's
examine some of them.

First, the Heritage memorandum claims that "No one knows the specifics
of how marijuana decriminalization would work in practice." This is
wrong. In 2001, Portugal decriminalized not only marijuana but all
drugs. The Cato Institute published a report after the policy had been
in place several years and it turns out that the doomsayers were
wrong. The predicted spike in drug use never happened. Other countries
in Europe are studying Portugal and are moving away from the hard-line
criminal approach to drug use.

The Heritage Memorandum repeats the claim that cannabis is a "gateway
drug" that can lead users "to more dangerous drugs." The gateway
theory has been discredited. It is like saying bicycles are a
"gateway" to motorcycles. Yes, some motorcycle riders had bikes when
they were young, but there is no causal relationship between the two
objects. Same thing with drugs. Millions of people try marijuana and
stop. Millions of other people use marijuana every year and never move
on to other drugs.

The Heritage Memorandum reports that "In 2008, marijuana alone was
involved in 375,000 emergency room visits." This sentence conjures
images of ambulances rushing to hospitals because of marijuana use.
Not true. It is sensible for medical personnel to ask patients about
their bodies, including smoking and drinking practices. Since we know
millions of Americans are using cannabis, it should come as no
surprise that hundreds of thousands of patients confide use to doctors
and nurses.

Next, the Heritage memorandum claims that one should not compare the
drug war with alcohol prohibition. One important difference between
marijuana and alcohol, the memo says, is that liquor is "rarely
consumed to the point of intoxication." Rarely? According to the
Department of Justice, it is not so rare: About 75% of the alcohol
consumed by adults in the United States is in the form of binge
drinks. (It may well be that 20% of the drinkers do 80% of the binge
drinking, but other drinkers frequently get to the point of
intoxication). In any event, the comparison with alcohol prohibition
is on the mark. The goal was to use the criminal law to suppress
alcoholism and problems related to drunkenness. After several years it
became evident to more and more people that prohibition was creating
more problems than it was solving--so the movement for repeal
eventually prevailed.

The Heritage memorandum says that proponents of Prop 19 are "touting
the potential benefit of legalization to the government, in terms of
additional revenues from taxing marijuana and savings from backing
down in the 'war on drugs' ... To date, no such realistic cost-benefit
analysis has been done." Actually, here is a cost-benefit analysis
prepared by Harvard economist Jeff Miron and his research associate
Katherine Waldock. They calculate that California could improve its
fiscal situation by about one billion per year. Heritage analysts
should know that top economists, such as Milton Friedman, Gary Becker,
and Thomas Sowell (among many others) have critiqued the drug war
policy as counterproductive.

The Heritage memorandum claims that if Prop 19 were approved, it would
conflict with the federal criminal statute, the Controlled Substances
Act and thus "invite litigation that would almost certainly result in
[Prop 19] being struck down" as unconstitutional. This legal claim is
dead wrong. While it is true that the supremacy clause of the
Constitution makes it clear that federal law will override a conflicting
state law, that clause simply has no application here. The federal law
on marijuana remains in force, but that does not mean that a state
government is under any obligation to assist the feds. As the Supreme
Court noted in New York v. United States (1992), the state governments
are neither "regional offices nor administrative agencies" of the
federal government. Let's take another example. Suppose Congress were to
criminalize, say, cotton candy--would California be in violation of the
Constitution because its police agents are not now empowered to arrest
people producing and possessing cotton candy? No. Nor could Congress
compel the California legislature to move against cotton candy producers
and consumers. Here again is the Supreme Court: "Even where Congress has
the authority to pass laws requiring or prohibiting certain acts, it
lacks the power directly to compel the States to require or prohibit
those acts." (New York v. United States, 505 U.S. 144, 166 (1992)). Prop
19 is consistent with the constitutional principle of federalism.

The Heritage memorandum concludes its analysis of Prop 19 by saying
the legalization movement is "long on rhetoric but short on facts." In
light of the above scrutiny, the validity of that last claim should be
evident to all fair-minded readers.