War on Drugs

11.10.12

Legal Marijuana in Two States: What Happens Next?

Colorado and Washington now have legal marijuana. At least until the feds start cracking down.

A few months back, I saw a terrific presentation at AEI on what marijuana legalization in a couple of states might mean.  The first, most obvious result: cheaper marijuana in other states.  If it's possible to buy cheap, legal pot in one place, then it's pretty easy to take a vacation to Colorado, hop on the internet, and bring the party home with you.  And for, um, informal pharmaceutical marketing firms to do the same thing on a larger scale.  Pot in other states will not be as cheap as it is expected to become in Colorado, but it will be cheaper than it is now.  

. . . that is, provided that the feds do not crack down.  Marijuana is still very much illegal at the federal level, and if you get arrested by the feds in Colorado, you are going to do federal time, not a month in the local pokey.  And the feds have in fact been cracking down on dispensaries that are legal under state law.  Apparently, Obama wants to ensure that no more American teens waste precious years and brain cells doing roof hits before going on to become president of the United States.  

That substantially complicates matters.  We could end up with marijuana nominally legal for the majority of the population under state law, but still practically unavailable.  

. . . or not.  Mark Kleiman, one of the people giving that AEI presentation, parses the possibilities:  

Despite what the voters in Washington and Colorado did, growing and selling marijuana will remain federal felonies. The federal reaction is crucial, and at the moment unpredictable. We probably won’t know until a new attorney general takes office.

The Colorado measure is much more radical than the Washington measure. Both intend to establish regulated markets on the alcohol model, something the federal government could probably shut down with relatively modest effort if it decided to. But Colorado also legalizes every resident to grow his or her own marijuana, and to give away as much as an ounce at a time to others. “Give away” is an interesting category; an informal market is likely to emerge, on a “Pay me $20 for this zip-lock baggie and I’ll give you the green stuff inside” basis.

While the feds could easily identify a limited number of state-licensed growers and retail outlets and shut them down with injunctions or with threats of arrest and property confiscation, identifying and cracking down on an unknown number of unlicensed home-growers would be next to impossible. So Colorado’s voters may well have let the genie out of the bottle in a way that no federal action can now reverse.

A “grow-your-own” system with an unregulated market of small-scale producers has some attractive features, compared to the alcohol model: There won’t be any marketing executives using their ingenuity to create as many as possible of the chronic stoners who represent a small minority of marijuana users but account for most of the volume of marijuana consumed. (Just as the minority of problem drinkers accounts for most of the alcohol consumed.) On the other hand, there also wouldn’t be any revenue for the states.   

As someone who broadly favors drug legalization, I hope that the Obama administration will de-prioritize enforcement of federal laws against cannabis distribution, rendering all this moot.  But if they don't, it looks like I'll at least have a cool public policy experiment to watch.