Voting for change was the easy part

As state regulation of cannabis moves forward in several US states, it’s too early to say how the legalisative experiments will turn out. Professor Mark AR Kleiman, who visited New Zealand as a guest of the Drug Foundation last November, brings a blindingly clear angle to the public policy conundrums that arise. Cameron Price delves into what happens after the votes are counted.

The global trend towards a more liberal approach to cannabis is accelerating. In America, in particular, the landscape is changing rapidly. Four states and the District of Columbia have legalised, and another 14 states have decriminalised. The US territory of Guam has decriminalised medical cannabis, and President Obama recently announced that he would no longer enforce federal cannabis law on Indian Reservation land. More states are in line for changes to their drug laws, with ballot measures due to be voted on in 2016.

Early indications are that reform has diminished the burden of drug harm in liberalising jurisdictions. More people are seeking treatment, governments are receiving millions in tax dollars and saving money that was previously spent on enforcement and gangs have lost a major revenue stream.

And popular feeling towards cannabis is softening. Polling has shown a generational shift in attitudes surrounding cannabis law – 52 percent of Americans now believe pot should be legal compared to just 16 percent in 1990. When broken down by age, 70 percent of those born after 1980 support legalisation.

All of this adds to the impression that a wave of cannabis liberalisation is inevitable. The question, then, is what we do when it hits our shores.

The end or the beginning?

The view that legalisation is the end of decades of debate is alluring but false. As the biggest change in drug policy since the end of alcohol prohibition, it’s the beginning of a new one. As Mark Kleiman puts it, “Debating whether to legalise pot is increasingly pointless. Unless there’s an unexpected shock to public opinion, it’s going to happen, and sooner rather than later. The important debate now is how to legalise it.”

All of this adds to the impression that a wave of cannabis liberalisation is inevitable. The question, then, is what we do when it hits our shores.

There is a dangerous tendency among the uninitiated (read: general populace) to think of cannabis law as a simple dichotomy: it’s either legal or illegal. This is in part because discourse about pot is dominated by two diametrically opposed camps. Ardent legalisers want a free-for-all system while puritanical prohibitionists want the drug eliminated.

However, the reality is that neither side’s ideal system will be implemented. Instead, the regimes that will be put in place are likely to be nuanced, incorporating features of both sides. While the talk is focused on the two extremes, the policy will encompass everything in the middle.

“Despite the simple-minded sloganeering on both sides, the question of creating a legal cannabis market is about as technical as they come, with equally valid public goals in sharp conflict, many unknowns, a variety of tricky design issues and some big risks,” Kleiman says.

The accidental drug tsar

Mark Kleiman is Professor of Public Policy at UCLA but is better known in the United States as the Washington State Hemperor. The consulting firm he heads advised the state government on the implementation of its legal pot regime. He was chosen as a result of his extensive experience in drug policy, which includes co-editing The Encyclopaedia of Drug Policy and writing Drugs and Drug Policy: What Everyone Needs to Know.

Kleiman didn’t start out with a passion for drugs. He had his start in the public corruption team in the criminal division of the US Department of Justice but was asked to join the narcotics section by a professor who he had admired while studying at Harvard. As a result of being an ‘accidental’ drugs expert, Kleiman says he approaches the drug policy debate without the baggage of preconceived notions about drugs and instead approaches it as you would any other policy question.

Pragmatic is Kleiman’s style. He feels that “the penalty for using a drug should not be more damaging than the use of the drug itself”. He doesn’t believe in the libertarian argument that people should be free to ingest any substance that they want. Instead, he focuses on the context of the drug in question.

According to Kleiman, practical considerations should outweigh principled ones.

“Can we pick alternative policies for some or all of the currently banned drugs that would get us better social outcomes? I don’t think there’s a principled answer to that question, and I don’t think the answer will be the same in all countries,” he says.

A good example of this style is his stance on cocaine. He believes it could be made legal in the US, as there is a high prevalence of use and heavy enforcement harms people dependent on cocaine. However, because New Zealand doesn’t have a high prevalence of cocaine, he thinks it should remain illegal here.

“You want a cocaine problem? Go ahead and legalise it,” he says. “Why import a problem?”

The least bad option

So, when should drugs be legalised according to Kleiman?

“Where the costs of maintaining illegality are simply too high,” he says, “or where the potential benefits in controlled use are high enough such that current laws cost us a lot in foregone benefit.” Importantly, Kleiman acknowledges there will be drug harm in any scenario, regardless of legality. The key to good policy, in his view, is to minimise that harm.

To do that, costs and benefits must be traded off against each other. On the right side of the ledger, Kleiman says, “The undeniable gains from legalisation consist mostly of getting rid of the damage done by prohibition. Right now, Americans spend about $35 billion a year on illegal cannabis. That money goes untaxed. The people working in the industry aren’t gaining legitimate job experience, and some of them spend time behind bars and wind up with felony criminal records. About 650,000 users a year get arrested for possession, something much more likely to happen to a black user than a white one.”

However, Kleiman also agrees with anti-pot campaigners that ending the war on drugs will lead to higher prevalence and problem use, particularly among teenagers.

“The losses from legalisation would mainly accrue to the minority of consumers who lose control of their cannabis use,” he says.

“While a bad cannabis habit usually isn’t nearly as destructive as a bad alcohol habit, it’s plenty bad enough if it happens to you or to your child or your sibling or your spouse or your parent.”

On balance then, Kleiman is in the ‘legalise’ camp, with reservations. Commercial sale, low taxes and loose regulation are cited by Kleiman as reasons to be wary of free-market-style legalisation of cannabis.

“Continued prohibition is probably the worst thing we could do about cannabis right now. Alcohol-style legalisation, which is where we are headed, is probably the second worst.”

Kleiman is wary of giving free rein to corporations, partly because it will likely result in a commercial lobby not unlike Big Tobacco. But his greater concern is that the logic of the free market creates a financial incentive on companies to promote problem use.

“It’s not just that the problem users are profitable; it’s that nobody else is profitable. More than 80 percent of what you sell is going to be to people who smoke too much. It’s true of alcohol today – responsible drinkers don’t build breweries, alcoholics do.”

Instead, Kleiman supports a ‘temperate’ cannabis policy.

“That would give us the benefits of legalisation without an upsurge in heavy use and use by juveniles,” he says. This sounds like the perfect compromise, but what exactly would temperance entail?

Novel problems, novel solutions

Mind-altering substances do not have the same properties as other goods that are legal to buy and sell. What works in the market for food, say, or clothing will not work in the market for a potentially dependence-forming substance such as cannabis. The aim of the game shouldn’t be to maximise the sales or profit of the supplier, it should be to maximise the wellbeing of the consumer. There will be times where the public health interest is at odds with the financial incentive of companies. This clash should be confronted head on by a regulatory regime that follows a mantra of harm minimisation.

Bad reform will leave us in a worse place than we are in now, so failure to actively prepare for the eventuality of drug reform now is reckless.

Production will have to be monitored. Kleiman says a free market could be replaced by “such interesting ideas as just letting consumers grow their own or requiring that growers and retailers be not-for-profit co-ops or public-benefit corporations, as well as the alternative of state-monopoly retailing”.

Another of his ideas is to give the regulators explicit authority to restrict the amount of cannabis that can legally be grown.

On the demand side, Kleiman believes the key to mitigating the potential for increased uptake lies in the price that people have to pay for pot.

“The basic fact about a legal cannabis market is that the product will be remarkably cheap to grow. Once competition and industrial-style production have taken effect, a legal joint would cost about what a tea-bag costs, rather than the illegal price, which is 100 times as high.”

In implementing the legal regime in Washington State, Kleiman focused on imposing an excise tax such that legal cannabis costs only slightly less than its street equivalent.

“My belief is that, if you can keep the legal prices close to the illicit prices, you won’t get a big upsurge in heavy users.”

Other possible policy options discussed by Kleiman include a requirement that retail clerks at dispensaries have training in pharmacology and substance use disorder to discourage dangerous consumption. Another is for buyers to set a self-imposed weekly or monthly quota. That way, they will be confronted by their actual use and may change their habits as a result. Banning the use of brand names and advertising and instead presenting the drug in a plain package labelled with the dosage and scientific name of the particular strain being sold may produce a psychological effect in people that curbs their use.

The half-opened can of worms that is cannabis law reform seems to produce more questions than answers. Will the law allow smoking in public? Will it treat cannabis leaf differently to hash oil? Will it focus on potency or weight? Will it ban smoking the leaf and instead insist on vapourising? What amount of cannabis, if any, will a user be allowed to ingest before they drive? What will become of drug testing in the workplace? What will happen to patterns of alcohol and other drug use? What changes in the social fibre of the nation will legalised pot result in? These are all obstacles that will have to be navigated on the way to good cannabis policy.

Lessons to be learned

Public support can evaporate in an instant. It may be that there is a coming backlash to the reforms currently taking place. Voters might lose their appetite for change. As it stands though, reform does seem likely.

But not all reform is good. Bad reform will leave us in a worse place than we are in now, so failure to actively prepare for the eventuality of drug reform now is reckless. Discussions need to happen now to decide what a law change will look like. We have the benefit of learning from the experiments currently taking place in America and the rest of the world. Not everything that works there will work here though, so it is also important to think about what legal or decriminalised weed would look like in Aotearoa. Neither of the extreme sides will ever see eye to eye, but perhaps both could agree with Mark Kleiman when he says that we should “recognise preventing adult substance use disorder among the goals of the law”.

USA state regulation of cannabis - state of the play infographic