Legalizing Marijuana Is a Big Mistake

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.

As support for legalization has climbed, commanding a two-thirds majority in recent polling, any contrary argument has come to feel a bit futile, and even modest cavils are couched in an apologetic and defensive style. Of course I don’t question the right to get high, but perhaps the pervasive smell of weed in our cities is a bit unfortunate …? I’m not a narc or anything, but maybe New York City doesn’t need quite so many unlicensed pot dealers …?

All of this means that it will take a long time for conventional wisdom to acknowledge the truth that seems readily apparent to squares like me: Marijuana legalization as we’ve done it so far has been a policy failure, a potential social disaster, a clear and evident mistake.

The best version of the square’s case is an essay by Charles Fain Lehman of the Manhattan Institute explaining his evolution from youthful libertarian to grown-up prohibitionist. It will not convince readers who come in with stringently libertarian presuppositions — who believe on high principle that consenting adults should be able to purchase, sell and enjoy almost any substance short of fentanyl and that no second-order social consequence can justify infringing on this right.

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.

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 found 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 of 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.

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 sharp increase in the number of noncasual 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.

In theory, there are technocratic responses to these unfortunate trends. In its ideal form, legalization would be accompanied by effective regulation and taxation, and as Lehman notes, on paper it should be possible to discourage addiction by raising taxes in the legal market, effectively nudging users toward more casual consumption.

In practice, it hasn’t worked that way. Because of all the years of prohibition, a mature and supple illegal marketplace already exists, ready to undercut whatever prices the legal market charges. So to make the legal marketplace successful and amenable to regulation, you would probably need much more enforcement against the illegal marketplace — which is difficult and expensive and, again, obviously uncool, in conflict with the good-vibrations spirit of the legalizers.

Then you have the extreme case of New York, where legal permitting has lagged while untold numbers of illegal shops are doing business unmolested by the police. But even in less-incompetent-seeming states and localities, a similar pattern persists. Lehman cites (and has reviewed) the recent book “Can Legal Weed Win? The Blunt Realities of Cannabis Economics,” by Robin Goldstein and Daniel Sumner, which shows that unlicensed weed can cost as much as 50 percent less than the licensed variety. So the more you tax and regulate legal pot sales, the more you run the risk of having users just switch to the black market — and if you want the licensed market to crowd out the black market instead, you probably need to make legal pot as cheap as possible, which in turn undermines any effort to discourage chronic, life-altering abuse.

Thus policymakers who don’t want so much chronic use and personal degradation have two options. They can set out to design a much more effective (but necessarily expensive, complex and sometimes punitive) system of regulation and enforcement than what exists so far. Or they can reach for the blunt instrument of recriminalization, which Lehman prefers for its simplicity — with medical exceptions still carved out and with the possibility that possession could remain legal and that only production and distribution be prohibited.

I expect legalization to advance much further before either of these alternatives builds significant support. But eventually the culture will recognize that under the banner of personal choice, we’re running a general experiment in exploitation — addicting our more vulnerable neighbors to myriad pleasant-seeming vices, handing our children over to the social media dopamine machine and spreading degradation wherever casinos spring up and weed shops flourish.

With that realization, and only with that realization, will the squares get the hearing they deserve.