Is The Pot Experiment Failing?

As a criminal defense lawyer, I’ve known my share of people who used drugs. Because of this, I’ve been ambivalent about the legalization of marijuana. While it’s use in the Drug War has been a disaster, bad enough to trump whatever other concerns may arise, that doesn’t mean there aren’t other concerns, and they too aren’t working out very well.

Ross Douthat raises some of the reasons why, he contends, the legalization of weed is a failure.

Of all the ways to win a culture war, the smoothest is to just make the other side seem hopelessly uncool. So it’s been with the march of marijuana legalization: There have been moral arguments about the excesses of the drug war and medical arguments about the potential benefits of pot, but the vibe of the whole debate has pitted the chill against the uptight, the cool against the square, the relaxed future against the Principal Skinners of the past.

This is hardly a reason, but it is an undeniable influence. Raise any doubts or ask unpleasant questions and you’re immediately the enemy, both uncool (which is likely true, at least in my case) and tool of the carceral badgelickers. Utter a negative word about weed in public and get ready to be ratioed. Supporters are no more willing to discuss pot than activists about the sex of a trans woman. If you’re not for it, you’re against it, and if you’re against it, you’re the enemy.

The best version of the square’s case is an essay by Charles Fain Lehman of the Manhattan Institute explaining his own evolution from youthful libertarian to grown-up prohibitionist.

But Lehman explains in detail why the second-order effects of marijuana legalization have mostly vindicated the pessimists and skeptics. First, on the criminal justice front, the expectation that legalizing pot would help reduce America’s prison population by clearing out nonviolent offenders was always overdrawn, since marijuana convictions made up a small share of the incarceration rate even at its height. But Lehman argues that there is also no good evidence so far that legalization reduces racially discriminatory patterns of policing and arrests. In his view cops often use marijuana as a pretext to search someone they suspect of a more serious crime, and they simply substitute some other pretext when the law changes, leaving arrest rates basically unchanged.

The mythos about the defendant doing life for simple pot possession is largely false. To the extent people are imprisoned for weed, it’s either a product of possession of substantial sale weight or a consequence of such bad and simplistic fixes as “three strikes” laws. It’s almost never “simple possession” as decried. although it does happen on rare occassion.

So legalization isn’t necessarily striking a great blow against mass incarceration or for racial justice. Nor is it doing great things for public health. There was hope, and some early evidence, that legal pot might substitute for opioid use, but some of the more recent data cuts the other way: A new paper published in the Journal of Health Economics finds that “legal medical marijuana, particularly when available through retail dispensaries, is associated with higher opioid mortality.” There are therapeutic benefits to cannabis that justify its availability for prescription, but the evidence for its risks keeps increasing: This month brought a new paper strengthening the link between heavy pot use and the onset of schizophrenia in young men.

Another argument in favor of legalization is that it’s benign. But as empirical studies of the affects of marijuana legalization are done, it appears that it may not be quite as benign as believed. This is not to say that it’s any more dangerous than alcohol, but the fact that alcohol has significant public health problems does not mean that pot doesn’t.

And the broad downside risks of marijuana, beyond extreme dangers like schizophrenia, remain as evident as ever: A form of personal degradation, of lost attention and performance and motivation, that isn’t mortally dangerous in the way of heroin but that can damage or derail an awful lot of human lives. Most casual pot smokers won’t have this experience, but the legalization era has seen a dramatic increase the number of non-casual users. Occasional use has risen substantially since 2008, but daily or near-daily use is up much more, with around 1‌‌6 million Americans, out of ‌more than 50 million users, now suffering from what ‌‌is termed “marijuana use disorder.”

It’s bad enough that many suffer from alcoholism, which results in “personal degradation, of lost attention and performance and motivation.” Is it any better for society to add “marijuana use disorder” to the mix?

What’s missing from Douthat’s litany of reefer madness is that, while pot use is pretty much the same for white as black people, black people were overwhelmingly arrest for it, and having criminal convictions, even for misdemeanor marijuana possession, has a deleterious impact on everything from education to employment to housing. This is a huge factor that has extreme implications. Yet, it goes unmentioned in Douthat’s column.

That there are problems with marijuana legalization that raise serious issues and should be given consideration so as not to trade one disaster for another. That said, the most pervasive problem with the drug war approach to weed is sufficient to offset many of these other problems. In other words, if the only option was legalization or drug war, legalization is by far the better option.

Then again, legalization while addressing the problems, rather than returning to a criminal regime, would be the most socially useful approach. Except that would require we engage in a serious, nuanced discussion of what those problems are and how best to address them. As of now, neither advocates for or against are willing to engage in such a discussion. Douthat is right to raise questions, but it would be more useful if his analysis didn’t omit the worst aspects of pot criminalization. Then again, that’s just, like, his opinion, man.