It’s not about "legalizing marijuana"

The recent votes in Washington and Colorado are a big deal.

There is one point I wish to make regarding terminology.

I found extremely helpful a publication called “After the War on Drugs: Blueprint for Regulation” by Steve Rolles at the UK’s Transform Drug Policy Foundation.  The central concept in this truly innovative document is that of a “regulated market.” The name of the game in drug policy reform – which means legal reform – is the creation of a regulated market for psychoactive substances.

All markets are regulated. There are regulated markets for firearms, alcohol, automobiles, candy and spray paint. The practical question is the degree of regulation. There may be regulations on the supply side, regulations on the demand side, both or neither. Some states require background checks to purchase firearms. Many consumer products require disclosure of ingredients. Users of automobiles require pre-licensing by the state before they can use automobiles. All product advertising is regulated the Federal Trade Commission; advertising of pharmaceuticals is also regulated by the FDA. The tobacco industry self-regulates with regard to advertising. Pharmacies are subject to regulations as to their layout – i.e. what products must be locked up “behind the counter” as opposed to stocked on the shelves where the consumers wander about. There are regulations governing establishments that permit onsite consumption of alcohol, i.e. “bars” and “restaurants.” In New York the “regulation” of tobacco includes a ban on smoking in public parks. Some states allow sale of liquor only through government stores (“state stores”). The market for rental properties is regulated by affirmative legal obligations on landlords to provide heat and to eradicate vermin.

The point in practice then is that the reforms in cannabis law, whether affirmative defenses to criminal prosecution in “medical marijuana” states or in Washington State the directive to the liquor control board to formulate rules for sale of cannabis, is that we are not talking about legalizing a drug (or, more accurately, a botanical) – we are talking about legalizing a market.

Lawyers know from their first-year contracts class that it is not possible to enforce an illegal contract. As my professor said “no sale of babies!” That is the law that currently governs “drugs” – it is an illegal market and therefore all transactions therein are illegal, except as narrowly permitted under the federal Controlled Substances Act and to varying degrees under state law. Cocaine is not an “illegal drug” – since cocaine is in Schedule II of the CSA, it is the market for cocaine that is illegal except as permitted narrowly by the law (that being a physician’s prescription of cocaine – the validity of which the DEA can second-guess). Legal reform would expand the scope of the legal market and allow participants in the market to use the courts to enforce their contracts.

In New York State, the market for cannabis is legal only to the extent that a consumer may possess a small amount of cannabis not in plain view; the market for the cultivation and sale of cannabis, i.e. “the supply side,” is illegal. The medical cannabis bill drafted by Assembly Member Richard Gottfried would specify six types of entities that may apply to the state for permission to enter the supply side of the market, i.e. it would legalize a form of supply.

It is a little bit of a word game I am playing here but it is a significant word game: if the question is how to regulate a market, then the task at hand is easy. We are all familiar with regulated markets. There is a regulated market for nuclear power plants and one for medical devices. It is within the scope of possibility to legalize the market for cannabis and other psychedelics.

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4 thoughts on “It’s not about "legalizing marijuana"

  1. It strikes me that the bigger “win” on election day was ending the criminalization and penalization of adult possession of cannabis. We've already seen hundreds of cases dismissed – hundreds of people who won't have to worry about a cannabis conviction on their record in the future, when they want to do things like take out next semester's college loans, join the military, or become law enforcement officers. This isn't a “market”-oriented change in any sense. There's nothing commercial about it (ditto possession not in plain view in New York – not really a “market” issue).

    I agree that creating state and local regulations for commercial production and sales makes sense as a long-term goal, and it will be interesting to see how Washington and Colorado fare in their efforts (although they're operating in an inefficient context – they have to design regulations with an eye toward federal interference, which, I expect, will stop being a factor at some point down the road). But respecting the rights and humanity of cannabis consumers was, by far, the bigger win.

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  2. I saw a story recently that the Seattle police department has issued a policy as to how comply with Washington's new law but I have not had a chance to check it out. If you want to write something about it we can post it here.

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