If the polling is right, residents of Washington, D.C., are likely to vote to legalize marijuana Tuesday. But it won’t be the kind of legalization we’ve seen up to now.
As written, D.C.’s Initiative 71 embodies a different—and perhaps better—approach to cannabis legalization than the laws already in effect in Colorado and Washington state, or the similar laws that Oregon and Alaska voters might adopt Tuesday. Those systems involve more or less the same policies that now apply to alcohol: private, for-profit production and sale, regulated and taxed by the state. By contrast, the proposed D.C. law won’t allow any commercial activity. District residents will be able to grow a limited number of plants, possess a limited amount of the resulting cannabis, and give away—but not sell—whatever they don’t want to smoke themselves. The system is called “grow and give.”
If that were the end of the story, Initiative 71 would be great news for people interested in a way forward for cannabis policy, making D.C. the laboratory for an interesting experiment. But passing Initiative 71 will only be the beginning of a complicated political process with an unpredictable outcome.
The path already laid out by Colorado and Washington state is the obvious one. Since alcohol is the only intoxicating and sometimes habit-forming drug now legally available without a prescription, the alcohol system—regulated for-profit commerce—seems like the natural model to adopt when legalizing another intoxicating and sometimes habit-forming drug.
But are we really satisfied with the results of the current alcohol system? Yes, the repeal of alcohol prohibition largely eliminated illicit alcohol production and sale, along with the organized crime, violence, enforcement activity, and corruption that bootlegging generated. What we got instead was the relentless promotion of drinking to excess—from the Super Bowl to spring break—with the result that alcohol now accounts for more substance use disorder, more violence (especially sexual assault and domestic violence), more health damage, more injury, more death, and even more arrests than all illicit drugs combined. About 100,000 Americans each year die of the consequences of their own drinking or someone else’s: from stroke, cancer, liver disease, heart disease, accidents, homicides, and suicides.
Cannabis, which doesn’t generally unleash violence and has less dramatic health risks, is unlikely to generate similar levels of misery, even if we treat it legally the same way we treat alcohol. But the commercial imperative to move the product in volume will give the cannabis industry the same incentive the alcohol industry now has to encourage excessive use. And we can also expect the legal cannabis industry to lobby as fiercely against adequate levels of taxation and regulation as the alcohol lobby does, very successfully, today. In Washington state, where my firm advised the Liquor Control Board on establishing regulations for the new commercial cannabis industry, the unlicensed and unregulated medical marijuana sector has, so far, fought off all legislative attempts to rein it in. The same thing happened this year in California, where a bill to regulate the $1 billion medical marijuana industry died in committee despite the sponsorship of the president of the state Senate and the support of advocates of commercial cannabis legalization.
If the goal is to allow adults to toke up in peace—without the hassle of finding a “420-friendly” physician and pretending to have some ailment—and to stop arresting so many users and low-level cannabis dealers, disproportionately poor and minorities, it can be done without involving the “potrepreneurs” now hoping to cash in on the Green Rush.
D.C. should try “grow and give” and see how it works. It wouldn’t generate any tax revenue, or offer consumers the same convenience or product variety as a commercial system, and of course policing the boundary between “giving” and “selling” would be virtually impossible. But it might be a big improvement on the current prohibition. Eliminating organized marketing would likely lead to a much smaller increase—if any—in cannabis abuse than we would expect if we sell pot the way we now sell beer.
Still, “grow and give” isn’t the only option between full-on prohibition and commercial legalization. We could restrict production and sale to consumer-owned cooperatives, or to not-for-profit enterprises, or to stockholder-owned public-benefit corporations whose chartered purposes include the promotion of moderate consumption and whose boards would include experts in public health, pediatrics, and drug abuse prevention. Unfortunately, we couldn’t imitate another post-Prohibition alcohol strategy adopted by some states and restrict retail sales to government-owned stores, because neither the District nor a state government can tell its employees to violate federal law, as cannabis growing and cannabis sales still do.
Even a commercial market could have more safeguards than the Colorado or Washington state systems feature. States could require that the retail sales force be trained in pharmacology and drug abuse prevention, or create systems of user-set but vendor-enforced personal quotas on weekly or monthly purchase amounts as an aid to people who want help controlling their cannabis use. (One in six people who have used cannabis in the past month reports finding it difficult to avoid going overboard, which is not surprising, given that one in three people who have used pot in the past month reports having lit up on 21 or more of the past 30 days, according to analysis of data from the National Survey on Drug Use and Health by Jonathan Caulkins and Maria Cuellar of Carnegie Mellon University. There are about seven times as many of those heavy users today as there were in 1992.)
States that legalize could at least use production caps or high taxes to prevent the collapse in marijuana prices that will surely result from substituting cheap legal production for expensive illegal production.
D.C. already has a small cannabis industry, including cultivators, thanks to its restricted medical marijuana regime, and advocates for full legalization aren’t satisfied with “grow and give.” Once Initiative 71 has passed, they intend to ask the elected officials of Washington to create a full commercial system; the D.C. Council is already planning to work on it over the next few months, and the two leading candidates for mayor have said they would support such a move.
The wild card in the deck is the possibility that Congress will interfere before D.C. has a chance to implement any cannabis system: If passed, Initiative 71, like all D.C. laws, is subject to a congressional review period. (Republicans failed earlier this year to gut D.C.’s recently passed marijuana-decriminalization legislation.)
Whatever happens on Capitol Hill, here’s hoping the debate on Initiative 71 takes into account the potential losses from full commercialization as well as the potential gains, and that D.C. decides to experiment with something other than the tired commercial formula that serves us so badly when it comes to alcohol. Making mistakes is inevitable; repeating the same mistake seems unnecessary.