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May 16, 2021

Cannabis is out of the bag

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At the recent Nimbin MardiGrass drug law reform rally, campaigners called for the legalisation of the medical use of cannabis as well as recreational use, with experts there arguing prohibition is costing Australia billions of dollars in enforcement. Photo Luis Feliu

Why prohibitionists have an interest in allowing marijuana legalisation


Jacob Sullum, Reason.com

Last week, the US state of Colorado’s General Assembly put the finishing touches on legislation aimed at taxing and regulating the commercial distribution of marijuana for recreational use.

The process has been haunted by the fear that the federal government will try to quash this momentous experiment in pharmacological tolerance, a fear magnified by the Obama administration’s continuing silence on the subject.

Six months after voters in Colorado and Washington made history by voting to legalise marijuana, federal attorney-general Eric Holder still has not said how the justice department plans to respond. But if the feds are smart, they will not just refrain from interfering; they will work together with state officials to minimise smuggling of newly legal marijuana to jurisdictions that continue to treat it as contraband. A federal crackdown can only make the situation worse, for prohibitionists as well as consumers.

Shutting down state-licensed pot stores probably would not be very hard. A few well-placed letters threatening forfeiture and prosecution would do the trick for all but the bravest cannabis entrepreneurs. But what then?

Under Amendment 64, the Colorado initiative, people 21 or older already are allowed to possess up to an ounce of marijuana, grow up to six plants for personal use, and keep the produce of those plants (potentially a lot more than an ounce) on the premises where they are grown. It is also legal to transfer up to an ounce ‘without remuneration’ and to ‘assist’ others in growing and consuming marijuana.

Put those provisions together, and you have permission for various cooperative arrangements that can serve as alternative sources of marijuana should the feds stop pot stores from operating. The Denver Post reports that ‘an untold number’ of cannabis collectives have formed in Colorado since Amendment 64 passed.

Washington’s initiative, I-502, does not allow home cultivation. But University of California drug policy expert Mark Kleiman, who is advising the Washington Liquor Control Board on how to regulate the cannabis industry, argues that collectives ostensibly organised to serve patients under that state’s medical marijuana law could fill the supply gap if pot stores never open.

It is also possible that Washington’s legislature would respond to federal meddling by letting people grow marijuana for personal use, because otherwise there would be no legal source.

With pot shops offering a decent selection at reasonable prices, these alternative suppliers will account for a tiny share of the marijuana market, just as home brewing accounts for a tiny share of the beer market.

But if federal drug warriors prevent those stores from operating, they will be confronted by myriad unregulated, small-scale growers, who will be a lot harder to identify, let alone control, than a few highly visible, state-licensed businesses.

The feds, who account for only one per cent of marijuana arrests, simply do not have the manpower to go after all those growers. Neither do they have the constitutional authority to demand assistance from state and local law enforcement agencies that no longer treat pot growing as a crime.

Given this reality, legal analyst Stuart Taylor argues in a recent Brookings Institution paper that the Obama administration and officials in Colorado and Washington should ‘hammer out clear, contractual cooperation agreements so that state-regulated marijuana businesses will know what they can and cannot safely do’.

Such enforcement agreements, which are authorised by the Controlled Substances Act, would provide more security than a mere policy statement, although less than congressional legislation.

Taylor, who says he has no firm views on the merits of legalisation, warns that ‘a federal crackdown would backfire by producing an atomised, anarchic, state-legalised but unregulated marijuana market that federal drug enforcers could neither contain nor force the states to contain’.

Noting recent polls finding that 50 per cent or more of Americans favour legalising marijuana, he says the public debate over that issue would benefit from evidence generated by the experiments in Colorado and Washington.

That’s assuming the feds do not go on a senseless rampage through these laboratories of democracy.



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