Marijuana Decriminalization: A Sketch of the Case in Favor

Fact: a lot of people like to get high. Whatever your position on the issue of Marijuana Decriminalization, I think we can start from a place of agreement on that basic premise: yes, Virginia, a lot of people like to get high. But here's another fact that may be a bit more controversial: Marijuana is good medicine for a lot of people. You may not know this, but this is a fact that's been recognized by the federal courts. There are a couple of people with serious degenerative diseases in America for whom the most effective treatment with the least damaging side effects is smoking marijuana. There aren't a lot of those folks, but there are some, and because of their situation as a result of a court settlement, a couple of people (I think the actual number is four), get regular shipments of Marijuana cigarettes from federal labs that grow pot for them.

Ok, so stipulate to that fact: for some limited, small number of people at least, Marijuana is extremely valuable as medicine. We can have a debate about the numbers, sure, but accept that there are at least a couple and we can have an important conversation.

And that conversation is about what do you do about the intersection of those two uses of Marijuana, on the one hand purely recreational and on the other objectively medically valuable.

How a person participates in that conversation, I would argue, has to do with their answer to a couple of fundamental questions: first, is there something wrong with getting high, and second based on the answer to that question, what do you do about the problems created by a particular subgroup of the folks who like to get high?

Personally, I don't see anything wrong with liking to get high. I've never been a huge fan of Marijuana, myself. I've never purchased it, never gone out of my way to get some of it, and maybe 99 times out of a hundred if its offered to me, I'll probably politely decline. It's just not something I like very much. But this isn't about me not liking to get high, nor is about you liking to get high if you are such a person. It's about what we as a society ought to do about the fact that some people do like to get high and some times that causes problems. Both of these things are facts.

The position of Marijuana Decriminalization is that whatever the response ought to be, the solution is not to be found in the criminal justice system. Let's think about about what it is that makes something a crime. A crime, in general, is an act that a government will punish in some way. In a perfect world democratic governments, where government is by a representation of the popular will, criminalize acts that the popular will views as a threat or a detriment to the public good. What this has usually meant in our common law system is that it's an act that does harm to the legitimacy of the state and which was done deliberately, with malicious intention. I say that it does harm to the legitimacy of the state because there are some harms in the common law system of justice which are not addressed so much through the criminal as the civil legal system. This is the whole area of tort law, which provides judicial remedies for harms which the state, for whatever reason, does not see fit to redress on its own initiative. The distinction between crimes and torts is an admittedly fuzzy one, but just go with me on this for a second and ask yourself what kinds of acts threaten the legitimacy of the state. I think here the classic crimes like murder, theft, rape, and so forth really come into focus, because in fact the legitimacy of the state and a government in a large part depends on its ability to protect those within its border from such attacks on the body or personal property. If, for example, a government can't in some real measure prevent the wanton slaughter of its citizens, we would not be inclined to think it was a very legitimate government after all.

It stands to reason, therefore, that if the criminalization of Marijuana is justified, then the use, possession, manufacture, and distribution of marijuana must in some way threaten the legitimacy of the state. Frankly, I can't see how that argument gets made. The classic arguments here for prohibition are based on the social ill effects produced by drug abusers. And those are real problems. Stoned idiots who are such fiends that they aren't able to support themselves or their offspring are a burden on society who make the world a slightly less pleasant place to live. This is also a fact. But this is the fact that focusses the inquiry because again, the question has to become given that social ill, is the best way to address it to levy criminal sanctions tied to the abused substance or the substance abuser? The answer to that question, discovered after many years of extremely unsuccessful alcohol prohibition I think has to be a rather emphatic no. And the reason is that it doesn't actually address the issue while at the same time punishing behavior that doesn't in fact contribute to the social ill at all. Prohibition is at once both overly narrow in its ability to deal with the real problem it is intended to address, and overly broad in that it makes problematic behavior that without criminal sanctions attached is completely innocuous. This is the negative argument for Marijuana decriminalization, the point, more or less indisputable, that the criminal justice approach just doesn't get it done.

There are positive arguments, too, however, that can be drawn on analogy to other sanctioned vices. First there is the revenue model. Criminal punishment attached to Marijuana creates two problems for the state financially. The first problem is that law enforcement and incarceration is expensive. Without the criminalization of Marijuana, that money could be better spent elsewhere. This is the truce that has been reached over alcohol, for example. Drinking alcohol, selling alcohol, being drunk, making alcohol, none of these things are absolutely forbidden by criminal law for the most part. What this does is allow Law Enforcement to direct limited resources at a narrower set of "alcohol related" crimes like selling to minors, public intoxication, and drunk driving. Rather than ban alcohol completely, the criminal code instead focuses narrowly on those specific social ills that arise when some people drink. THis makes the expenditure of limited law enforcement dollars more efficient because it has less to do with a tighter focus and it allows a wide range of behavior that if criminalized would lead to a heavy state burden in paying for the incarceration of, well, almost everybody.

The other financial issue is the fact that vice has always been a great source of revenue for the state, thereby allowing a lower tax burden on property, income, and sales than would otherwise be possible in order to produce the same state budget. "Sin" taxes on alcohol and tobacco are only the tip of the iceberg, however. In Washington State, the regulation of hard liquor gives the state a monopoly on the sale and distribution of hard liquor within the states borders. As monopoly holders the state can charge a premium for hard liquor while maintaining a significant profit in the bargain due to the lack of competition as a price control. Gambling has seen similar use as a direct revenue stream in many states through the sale of lottery and scratch tickets. This form of the positive argument holds that the sale of decriminalized marijuana could be a similar source of revenue either through a premium tax or through direct state monopolies on licensing, or both.

This then, is the case for Marijuana Decriminalization in its most basic form. THe case is not without it's flaws, but I think that it's strong enough on its own to take on most comers.

Why then is Marijuans still illegal, since after all the whole decriminalization argument is so straightforward and easy to understand?

I'm not sure, really, but I would suggest that at least part of the responsibility lies with the tactics of advocacy groups like NORML and High Times that are overly entrenched in drug culture issues making their presence both odious and credibility damaging as, after all, looking at them it's incredibly easy to dismiss the whole movement as a crazed hippie fringe of the wider culture. Couched in this are generational fears, racist notions that Marijuana is a "negro" drug, and a general paranoia that has been fostered by reactionary political elements that are far too eager to take any advantage to delegitimize the left.

The tide is slowly turning and that's just because people are basically reasonable and when presented with a reasonable argument will concede to the force of clear and irrefutable logic. '

In a sense then, Marijuana decriminalization is inevitable. And this means activists have to be extremely careful about the face they present because tactical errors like Firedoglake.com's can only be a set back.

Comments

Industrial hemp will never

Industrial hemp will never see mainstream use until marijuana is decriminalized. Consider the environmental burden of dairy, paper, oil-based manufactured products, and about 19,997 other things in our society. Corn based ethanol, which comprises 10% of our gasoline if I recall correctly, has a 1-to-1.3 energy ratio. I don't have the time to go searching for the numbers, but hemp is, at minimum, eight times more energy efficient. It is absolutely wonderful for fallowing fields.

Then there's the part where nobody has the right to tell me what I can and can't put in my body. It's mine, and so long as I accept that I am always responsible for my own actions, I'm allowed to do with it what I will.

Oh, and the War on Drugs being quite a large facet of systemic racism.

Whether or not we agree, some use it for spiritual purposes. If smoking some weed makes a person more compassionate, more open-minded, and less likely to be a prick, who cares if they use some hokey language?

I've always been curious

I've always been curious about the industrial hemp argument, mostly because it seems that agribusiness would be more on the ball about it if it was as valuable and useful as all the arguments for it claim. I mean, it's never really made sense to me that the large industrial producers of soy, flax, cotton and corn, which as I understand it are the major alternative crops, would really prefer to grow those things over hemp if hemp is superior and could drive higher prices. Which is not to say I disagree with that argument, I just don't understand the economics of it at all and I don't get why there is a continuing ban on large scale hemp production in the US.

The bodily autonomy argument is less convincing for me, because i think there are some things that there's a legitimate communal interest in prohibiting the consumption of. Granted, I don't think that marijuana is one of those substances, but I think you can make a case that the negative social consequences that unfettered use of say heroin or PCP are significant enough to warrant tight controls on those substances. Again, I don't think that that's a decisive argument and there are good points to be made on both sides, but it makes the appeal to bodily autonomy less of an absolute argument and therefore less useful in the advocacy of marijuana decriminalization specifically.

The political problem of the "war on drugs" is a better case. It's clearly both causing real and pervasive problems in latin america and not accomplishing much for the vast expenditures going into it, which again I think comes back to the overly narrow and overly broad aspects of prohibition as a solution to the social problems of drug use. I think it makes sense, for example, to consider intoxication as an aggravating factor in the punishment of other crimes. Someone who gets high and kills somebody with a car is I think deserving of a harsher punishment than someone who is merely negligent in the operation of a motor vehicle. But again, it's the negligent use of the dangerous instrumentality that's the criminal offense and what's being assessed there is in fact the level of irresponsibility and the punishments are being attached as a variable level of deterrence as much as anything.

The religious freedom argument, too, I think has real teeth but it's less of a pragmatic concern and given the rather touchy nature of current divisions over the establishment clause I don't think it makes sense tactically to foreground that argument, despite the fact that it's absolutely correct.

In any case, good points all and thanks for making them.

Oil, lumber, corn, and dairy

Oil, lumber, corn, and dairy are the biggest blocks. Economies that rely on lumber can't make any such switch without a similar-to-worse impact on the ecosystem; for instance, the damage that small crops have in national parks. Likewise, the business model of oil (and those businesses that use it for manufactures) doesn't allow for any sort of conversion. The industries themselves, and their workers as a result, will suffer for a period of time. Corn brings in more profit than hemp, plain and simple. Its comparatively small output per unit is helpful in the same way that a cure for cancer would be financially disastrous for many.

I'm not an economics expert by any stretch of the imagination (which I imagine is rather obvious), but it's mainly the preference for a familiar state of almost-security over a confusing-as-fuck state of transition into something that will have unintended consequences. It can only be better than what we've got, and I don't give a rat's ass about profit margins, but that's the long and short of it, best as I can figure.

I really should know more about this stuff. I've been recruited into a local hemp advocacy group, and have listened to dozens of flowery speeches on the philosophical and spiritual whatever the hell.