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Should California Legalize Marijuana?

A former police chief and a former White House drug policy adviser weed out the arguments on Prop 19.

Courtesy Hoover Institution; Courtesy Stanford School of Medicine

TWO VIEWS: Former San Jose police chief Joseph McNamara (left), now a Hoover fellow, says legalizing marijuana will reduce crime and weaken drug cartels. Former Obama drug policy adviser Keith Humphreys (right), a professor at the Medical School, worries that tobacco companies will develop new marijuana products that could lead to more health problems.

By Paul Rogers

California voters will have a wide range of issues to consider on November 2 when they go to the polls, from choosing a new governor to deciding the fate of the state's global warming law. But perhaps no election contest on the state ballot has gained more national attention than Proposition 19, a measure that would make California the first state in the nation to legalize marijuana.

If approved by a majority of voters, the Regulate, Control and Tax Cannabis Act of 2010 would allow anyone 21 or older to possess up to 1 ounce of marijuana for personal consumption. Cities and counties would be allowed to authorize, regulate and tax the commercial cultivation and sale of marijuana. And residents could grow marijuana gardens of up to 25 square feet for personal use.

Supporters, led by marijuana advocate Richard Lee, who founded Oaksterdam University in Oakland, say prohibition didn't work for alcohol and isn't working for marijuana. They contend that legalizing it would create jobs, reduce prison costs and generate $1.4 billion a year in new tax revenue with a $50-per-ounce tax, citing a State Board of Equalization estimate. The measure has been endorsed by the NAACP, the ACLU, Bay Area congressional representatives Barbara Lee, George Miller and Pete Stark, and former U.S. Surgeon General Jocelyn Elders.

Opponents say alcohol and tobacco already cause enough problems in society, and that legalizing marijuana would lead to lost productivity, health problems and more auto accidents. Among the opponents are Sen. Dianne Feinstein, '55, gubernatorial nominees Jerry Brown and Meg Whitman, the California Police Chiefs Association and Mothers Against Drunk Driving.

A Field Poll released September 26 showed Proposition 19 had growing support, with 49 percent of respondents favoring the measure and 42 percent opposing it.

We asked two Stanford scholars active in the debate for their views. Joseph McNamara is a research fellow at the Hoover Institution, and former chief of police of Kansas City and San Jose. He supports Proposition 19.

Keith Humphreys is a professor of psychiatry and behavioral sciences at the School of Medicine, specializing in addictive disorders. He recently spent a sabbatical year as senior policy adviser in the White House Office of National Drug Control Policy. He opposes Proposition 19.

Q: What are the key points that you want California voters to be aware of when they vote on Proposition 19?

KH: Number one, this is about the business side, rather than the user side. The legislature has already decriminalized marijuana, so it's going to be like a parking ticket in California.

(The California legislature and Gov. Arnold Schwarzenegger recently approved SB 1449, by State Sen. Mark Leno, D-San Francisco. The bill reduces possession of less than an ounce of marijuana from a misdemeanor to an infraction, meaning those in violation of the law will not be arrested, booked or forced to appear in court. They will continue to pay a $100 fine.)

So you should really be voting on this based on whether you want an industry that delivers marijuana. Because what will be legal, which is legal in no other part of the world for marijuana, will be marketing, lobbying, sports endorsements, celebrity endorsements, labs that spend all day trying to figure out how to make the product more flavorful and addictive. And if it sounds like I am describing the tobacco companies, I am. But that's the question that's really before us. Do you want that industry? What's been our experience with tobacco, and are we satisfied with that experience such that we want to repeat it with cannabis?

Q: Your thoughts, chief?

JM: The industry is already here. The industry as it is now produces incredible amounts of crime and violence. The estimates are that between 10 percent and 30 percent of Californians use marijuana. So the obvious social costs of criminalizing a segment of the population that's that large are very difficult to bear. The DEA estimates that 60 percent of the funding for Mexican drug cartels comes from marijuana trade in the United States. That spills over into the criminal gangs which also derive a great deal of funding from the illegal black market marijuana industry in California. The violence flowing from the marijuana trade is not related to the drug use itself. It's the black market that creates this. The profits help buy weapons and create a gangster culture. And just about everyone concedes alcohol and tobacco are more dangerous drugs than marijuana.

Q: So you think that some of that criminalized gang activity would decrease if marijuana was legalized?

JM: Oh absolutely. When was the last time a Budweiser dealer was gunned down in a drive-by shooting? How much money did the Mexican cartels make last year on Corona or other alcohol? We have this army of police with helicopters . . . but no one says we are winning the marijuana drug war, or that we can win it, because we recognize that no matter what we have said or how we personally feel about it, there's a market for these drugs and millions of Americans are willing to spend billions of dollars regardless of how we think it affects their health.

Q: Let's jump off on that point: Doctor, you have some health concerns about what the passage of Prop 19 would mean. Can you talk a little bit about those?

KH: Let me agree, by the way, with the chief on the violence question. Some people say you should vote against this because it will cause an uptick in violence in California. I think that's completely implausible. There may be a little violence in Mexico because this will affect their business and sometimes when you perturb the economics of gangs they do shoot it out over what's left. So that could happen, but in California I don't anticipate it. But I would say there are different ways to think about violence. The horrible [gang] violence in Mexico has killed probably 30,000 people in Mexico in the last six years. But 40,000 Mexicans a year die from smoking, according to the Mexican Department of Health. In the United States, tobacco products kill 400,000 people a year. So if you look at who is going to end up in the grave prematurely, it's wrong to think that if we move from an illegal market to a corporation we will reduce death. We won't. In a lot of the world people smoke cannabis and tobacco together. What do you think will happen to health when there are products that are cannabis-tobacco mix products like they have in Europe? When Madison Avenue is cut loose on cannabis? When you have marketing to kids?

Q: What types of health problems are you talking about specifically with marijuana? Car accidents? Lung problems?

KH: If you get mixed products, which appear to be more addictive than either one individually, you will get all the problems you have with tobacco and you'll probably get an increase from the cannabis. Cannabis in its current raw form is not going to be as dangerous as the future product. How many people do you know who are addicted to raw tobacco leaves? I don't know any. They are addicted to a product that has been refined by excellent scientists to be highly addictive. So you have to speculate about a product that's more potent and more addictive. And that will be the biggest cost. You are just going to have a lot more people addicted. Right now about 1 in 10 people who use marijuana become dependent on it. I think that could easily go up to 1 in 5. There will probably be some increase in accidents, but the thing I worry about the most would be things like academic achievement. When prices drop in a commodity, and they will drop if we make this legal, the people who tend to buy the product are those with the least disposable income. We know this very well from the alcohol taxation literature. Those are young people. If teenagers in California increase their marijuana use 20, 30, 40 percent, what's that going to do to academic achievement, particularly since a lot of those kids may be poor?

JM: You've changed the focus of the argument to what may happen instead of focusing on what we know. We know what we have now. We have a thriving black market industry. If you look at the statistics from the California Attorney General's office, this is a war in California mostly, disproportionately, against minorities. Unlike other crimes such as burglary, rape, assault, murder and so on, the use of marijuana is a consensual transaction. You don't have a complainant, a victim or witnesses who bring the crime to the attention of the police. So police have to use techniques that are creating understandable complaints of racial profiling and discriminatory enforcement. Stops for suspected drug possession are disproportionately young minority males. Convictions are disproportionately young minority males. Incarcerations are disproportionately young minority males. We pump them into a criminal justice system with a 77 percent recidivism rate. It affects their employment, their education. I know a great many cops that would not have been cops if they had been busted [for marijuana use] and that would have affected our ability to hire a police force that was representative of the different groups in the community.

KH: I agree completely. I've been an inspector in California prisons. I've worked with law enforcement extensively. Only a fool would say that if you have an encounter with the criminal justice system you really want to be a minority young male. Everything goes against you. But the things that Joe is talking about have already been changed. The legislature passed a bill that says there is no arrest for marijuana possession in California. There is no arrest, there is no court appearance. I want to go back to something that Joe said about the drug cartels. What I didn't hear him mention is tobacco companies. It's not speculation to say "maybe if there was a plant people liked to smoke an industry might market it brilliantly and lobby legislatures and get their way." That's been our history as long as we've had a history with tobacco. If you want to deal with reality you have to deal with all of it, and deal with the tobacco industry as a model. We know this will happen. It's not speculation. We see it in our face every day.

JM: We know what alcohol and tobacco dangers are. But they are certainly a lot less because these products are regulated. People today who want marijuana have to deal with criminals. And that will continue under Leno's bill. Once you start fingerprinting people, pushing them into incarceration and so on, you are already creating the possibility of career criminals in young people, which I think is a hell of a lot more dangerous than the amount of damage that might occur from people smoking and having their grades go down. Prescription drugs are by far the most harmful drugs today. Are we going to make aspirin a crime?

KH: To say that a legal industry will make the product safer, then you have to say that the tobacco leaf is more dangerous than a Marlboro. It is the legal industry that makes that raw tobacco leaf into a deadly product.

JM: That's not a good comparison.

KH: It's a very good comparison. It's the one we have.

JM: I'm sorry, it's not, because when you look at the overdose deaths, there's never been one for marijuana but deaths frequently occur with other drugs because the purity of the drug is not regulated. If we're really concerned about people dying then the idea is to regulate [the product].

KH: The increase in overdose deaths in the United States has been in the legally produced pharma, like Oxycontin, not heroin. Those have been flat, which again refutes the idea that if it's legal, it's safe.

Q: Mother's Against Drunk Driving opposes Prop 19. Is highway safety an issue?

KH: The National Highway Traffic Safety Administration did a roadside survey and showed on a weekend evening something like one in six people had a legal or illegal substance in their system. At least some of them are going to be high. When you are driving down the road, are you happy that one in six people have a drug in their system? I'm certainly not.

Q: And you think that incidence would go up?

KH: I think that use would go up, yes, so presumably driving under the influence would go up.

JM: I think [MADD] deserves credit for bringing to our attention the lack of enforcement against really dangerous drivers, but they see it as an end-all, when it's not. If I had my choice, for a driving situation, or even as I had during my first 10 years in Harlem as a policeman, of dealing with someone who is intoxicated on alcohol or on pot, I would prefer pot anytime. There is some research that indicates that they probably compensate better, that they don't speed as much as some people with alcohol problems. With tweeting and texting and cell phones, there are more impairments than we can talk about.

Q: A central argument of those who support Prop 19 is that Prohibition didn't work in the 1920s and that the prohibition of marijuana hasn't worked. How do you respond?

KH: However you respond to addictive substances there will be costs. You can't make tobacco illegal. You can't go back. But I could say "400,000 dead a year." Is that working? I don't think that's working. There are definite costs to prohibition, and there will be costs to this, too. No matter what we do, we are going to have a drug problem. We choose what kind of drug problem we want. You do the best you can.

Q: Doesn't California need the money that would be derived from taxing marijuana use?

KH: I don't think there will be any money, actually. The price will fall. Because cocaine is illegal, moving a kilo of it from Bogota to New York costs something like $20,000. If you could ship it FedEx, it would be $200. Making things illegal raises the cost. So when the price drops, the amount of taxation drops. And the tax evasion will be huge. People are not going to pay a $100 or a $50 tax on a $38 product. Why would they bother?

Q: Joe, won't marijuana growing still be illegal under federal law, even if this passes?

JM: That's not what is at issue in this election. That argument was used against medical marijuana. All the dire predictions that California would fall off into the ocean have not come true. In fact, the Obama administration, to their credit, announced that they were not going to be prosecuting many cases that were prosecuted previously. But there's something trivializing about this when you say "Oh we're going to have a drug problem no matter what." We're not just talking about the drug problem, we're talking about the violence, corruption and the crime that flows from establishing a black market for a product that a very large segment of the population wants to use. You've gotten into an ugly situation here where one of the leading politicians in our state, when he was asked about Proposition 19, said "we have to compete with the Chinese, and if we are all stoned we won't be able to do it." To my astonishment, that passes without comment.

Q: What's wrong with that comment?

JM: What about the wine industry? We have a very robust wine industry that we love. We enjoy the product and encourage more widespread use. But you don't have the violence spilling over, and criminalization of a large segment of the population. We aren't a state full of drunks who can't compete with the Chinese because of our robust wine industry. The people opposing this have totally skipped over the enormous savings that will exist if we tell the cops "You do not have the responsibility for enforcing marijuana laws." There are some 78,000 arrests for marijuana in California each year. All the state's police departments are acknowledging they must cut services and set priorities [because of budget cuts]. Here's a gift. The priority has changed. The voters are going to tell you "we aren't terrified of pot smokers in our neighborhoods. We are concerned about home invasion robberies, rape, guys stalking women, a whole bunch of things you aren't solving now."

Q: Joe's point has been that there's a lot of violence associated with illegal traffic. Keith, what do you think about that? Will it go down?

KH: When I say there will always be a drug problem, I'm including violence and corruption. Alcohol prohibition is a really good example. That drove gangs shooting each other in the street. That created violence. However, domestic violence almost certainly went down. The evidence we have is that when alcohol dries up, there's far less violence toward women and children in the home. It's not as visible, but it's still violence. We made a choice. We decided we didn't want the violence in the streets. Fine, that's the choice we made. But the point is that there wasn't a choice where you could have no problems. You are always going to have some. It's all about trade-offs. Violence associated with marijuana is nowhere near that produced by alcohol abuse—100,000 deaths a year from alcohol.

Q: Prop 19 makes it illegal for people under 21 to buy marijuana and makes it illegal for people to sell to them. But kids have always smoked marijuana, so won't there still be either Mexican drug cartels or somebody to provide that to them?

JM: There might be some small residue. But the black market is not going to be significant. There are very dire penalties for selling to minors. Some kids are going to do it no matter what you do. Remember that cannabis was in use for centuries before there were any police departments.

Q: Why do you think most of the state's political leaders—including both senators and both candidates for governor—are against Prop 19?

JM: Well, because when you are dealing with an issue like this, you are looking to frame the debate and when you don't have the facts on your side you try to get the emotions. They try to make this a fight of good against evil. A great student of government, Niccolo Machiavelli, said that when you are a reformer you have to win at every step of the way, where people arguing for the status quo only need to win once. The other fact is that law enforcement people in service have both legal and ethical constraints on what they can say. I don't think I could say what I'm saying now when I was actually a police chief sworn to enforce all the laws, not just the ones I agreed with, and also sworn to follow the policies of elected officials. Politicians are human beings, and they succeed by getting elected.

Q: Keith, Joe mentioned that in his view, the solution to drug abuse has been worse than the problem. What do you think about that?

KH: I feel in drug policy generally—and this is why I was motivated to go work at the drug office under Obama—that drug policy in the late 1980s got into a hysteria. We passed a lot of policies that are substantially worse than the problems they were designed to address. Some of those things have to do with race and stigmatization, the very things Joe was talking about. So I'm sympathetic. We changed needle exchange, we expanded treatment. And there are many more things to do. But to say that parts of drug policy need to be fixed seems to me a bit different than throwing away the whole enterprise. So you can count me as a reformer, and not a radical, I suppose. Mend it, don't end it.

Q: If I'm a regular voter looking at my absentee ballot on my kitchen table, or getting ready to go into the voting booth, what main takeaway points do you want me to know?

JM: When I speak to PTA groups, I've had people say "I agree with everything you say, but come back when my kids are 25." And so I've become convinced you need to deal with the youth problem right away. The fears have been stoked for many many years, of having your kids get messed up on drugs. I've raised three kids and had the same fears of any parent, maybe a little more, being a policeman. But would you rather have those kids treated in a therapeutic session, or in jail, which is where they might end up if they are in the wrong place at the wrong time. Then their career, their whole future, is endangered. If you think you can trust the government to keep your kids from being exposed to drugs, then there's no use talking to you, because your view is totally unrealistic given the enormous profits in the system. That's an important fact. People have a legitimate fear that their children are going to get messed up. The answer is to talk to your kids, give them attention, know what they're doing. Point out the dangers of this drug. But I have said this as a policeman and I say it now as strongly as possible. Whatever you do, don't lose your patience and say "The hell with them. I want my kid arrested and put into the system." Do not do that. Do not put them into the juvenile justice system. Secondly, the enormous appeal in just one election of being able to reduce crime so significantly and violence by a yes vote for 19 is a golden opportunity. It's not going to be one of these vast, new expensive programs. In fact, you will make it mandatory for police departments to better use their discretion in enforcing the laws that the people want, as opposed to this kind of crusade against pot smokers. And thirdly, maybe the revenue won't amount to all that much, but when you combine it with the fact that you've reduced the cost of the criminal justice system very significantly, that, plus any additional revenue, is something to take seriously. And the overwhelming thing is that we avoid seeing the disintegration of government as we are seeing in Mexico. If the Mexican government fails—and it's close to failure now because of the violence from United States drug policies, especially marijuana—then it's far more dangerous to us in California and to us in the United States than what's happening in Iran.

Q: Keith, your main takeaway points?

KH: Number one, the California Legislature has already decriminalized marijuana. It is going to be handled like a parking ticket. You don't need to vote for Proposition 19 [to produce the effects Joe describes]. Number two, the price of marijuana will fall dramatically and people will buy more of it, as they do with any commodity that drops in price. And number three, if you like the tobacco companies, if you think they have been good for public health, here's your chance to create another such company. Vote yes if you want that, vote no if you don't.



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