Against the Ban on Cannabis Smoking; for the Ban on Cannabis Commerce

To be justified, a law needs to be beneficial in its results — net of the costs of enforcement — and a reasonable restriction on liberty. Compared to a law that allowed individuals to grow their own cannabis for personal consumption or gratis distribution, the current cannabis laws probably have quite modest impacts on the level of cannabis abuse. Yet they make tens of millions of otherwise law-abiding citizens into lawbreakers, and subject hundreds of thousands of them to arrest each year. The vast bulk of the damage from cannabis abuse rests on the abusers; pot smokers aren’t noticeably violent or accident-prone, and the healthcare costs of their habit aren’t very heavy. Moreover, those health costs could be made much smaller by encouraging means of breathing cannabis vapors other than combustion of the plant matrix, for example by the use of vaporizers or nasal inhalers, both of them blocked by current law.

So Jon’s comparison of cannabis smoking with drunken driving seems to me as off-point as Jacob’s earlier comparison of those killed as a result of other people’s drinking with those killed as a result of their own driving or sexual activity.

The mere cultural prejudice of a majority of voters against the cannabis consumption of the minority does not, in my view, constitute sufficient justification for the costs imposed on that minority. The fact that millions of non-addicted pot-smokers keep right on smoking despite not only the laws but the arrests suggests to me, by the canons of revealed preference, that smoking pot is a practice that those people value, and that other people might value were they allowed to pursue it within the law. Their lost consumers’ surplus ought to count as a cost of the law, and I see no countervailing benefit of comparable magnitude. In addition, by banning a practice that poses little social risk, we waste enforcement resources and encourage disrespect for the law.

So I conclude that the ban on cannabis smoking — as opposed to cannabis commerce — cannot be justified, and that the majority in this instance acts wrongfully in restricting the liberty of the minority for no particular public purpose. That does not shake my conviction that allowing commercial marketing of cannabis along the lines currently permitted for alcohol would risk a very substantial increase in the level of abuse, as the legalization of the old “numbers game” led to the substantial prevalence of problem lottery gambling we now observe.

Therefore I favor non-commercial legalization as the ethically and practically appropriate approach to the most widely used illicit drug.

Also from this issue

Lead Essay

  • In their lead essay, Earth and Fire Erowid stress the importance of developing responsible, fully informed relationships toward psychoactive drugs. Although drug prohibition has persisted for decades, the overwhelming majority of adults have tried at least one illegal drug, and these substances aren’t going away any time soon. Sadly, prohibition itself has stunted our knowledge of these substances, and, as in so many things, ignorance is both dangerous and irresponsible. Provocatively, they criticize even the word “drugs” as a tag for illegal psychoactives: Lumping them all together, they write, betrays a lack of understanding of their vastly different effects, risk profiles and — yes — benefits.

Response Essays

  • Jonathan Caulkins argues that the responsible use of psychoactive drugs is an overstretched concept, if by “psychoactive drugs” we mean everything from caffeine to heroin. In many cases, he argues, temperance may be the only responsible “use” of a given substance.

    Further, state prohibitions on pleasurable but risky acts are hardly confined to this area of law; their violation is not a genuine form of civil disobedience as long as pleasure itself is the real goal of the act. And the risks remain regardless. Duly enacted laws in a democracy deserve far more respect than this, and following the law is a part of the responsibility of all citizens.

  • Jacob Sullum notes that temperance and abstinence have been wrongly conflated, and that the Aristotelian view of temperance encompassed all of the moderate, reasoned, and honorable pleasures of life. He reiterates that virtually everyone uses psychoactive drugs of one kind or another, and that the overwhelming majority of use is responsible. He challenges the notion that the state has any interest in the private actions of individuals that do not harm anyone else, and he terms the impulse to protect people from themselves “unethical” and “an open-ended rationale for government intervention that logically leads to totalitarianism.”

  • Mark Kleiman takes up a theme already addressed by the other participants, namely the distinctions to be found within the catchall category “illegal drugs.” He notes that the risk profiles, motivations for use, and public health considerations of these substances are so far removed from one another that it may make no sense to continue to treat them as similar in public policy. Given the choice between full legalization and the status quo, he would choose the status quo, but, he argues, these alternatives should not be the only ones we consider.