One morning in August, Mark
Kleiman, a professor of public policy at U.C.L.A., addressed the Seattle
city council on the subject of marijuana. Kleiman is one of the
country’s most prominent and outspoken analysts of drug policy, and for
three decades he has argued that America’s cannabis laws must be
liberalized. Kleiman’s campaign used to seem quixotic, but in November,
2012, voters in Washington and Colorado passed initiatives legalizing
the use and commercial sale of marijuana. Immediately afterward, the
State of Washington decided that it needed help setting up a pot
economy. State bureaucrats don’t generally sit around pondering the
improbable, so they had made no contingency plans. A call for proposals
was issued. Kleiman assembled a team that beat out more than a hundred
other contenders for the job. He calls himself a “policy entrepreneur,”
and offers advice through a consultancy that he runs, BOTEC Analysis Corp. In a nod to the ambiguity inherent in studying illicit economies, BOTEC stands for Back of the Envelope Calculation.
Washington
and Colorado have launched a singular experiment. The Netherlands
tolerates personal use of marijuana, but growing or selling the drug is
still illegal. Portugal has eliminated criminal sanctions on all forms
of drug use, but selling narcotics remains a crime. Washington and
Colorado are not merely decriminalizing adult possession and use of
cannabis; they are creating a legal market for the drug that will be
overseen by the state. In a further complication, the marijuana that is
legal in these states will remain illegal in the eyes of the federal
government, because the Controlled Substances Act of 1970 forbids the
growing and selling of cannabis. “What the state is doing, in actuality,
is issuing licenses to commit a felony,” Kleiman says. In late August,
after months of silence, the Department of Justice announced that it
will not intervene to halt the initiatives in Washington and Colorado.
Instead, it will adopt a “trust but verify” approach, permitting the
states to police the new market for the drug. Many other states appear
poised to introduce legalization measures, and the Obama
Administration’s apparent acquiescence surely will hasten this
development.
Washington’s initiative, called I-502, received
fifty-six per cent of the vote, with especially strong support in
western Washington, around Seattle. Voters saw a lot to like: the end of
prohibition of a drug that many people enjoy and consider harmless; a
fresh source of tax revenue; an end to the punitive, and racially
discriminatory, enforcement of marijuana laws. Each year, U.S.
authorities make more than three-quarters of a million arrests for
marijuana offenses. Blacks are more than three times as likely to be
arrested for such offenses as whites are, though they are no more likely
to use the drug. Pete Holmes, the city attorney of Seattle, told me
that state prosecutors had stopped indicting people for marijuana
possession, because local jurors found the prohibition so objectionable
that they tended to acquit on principle. A few years ago, Holmes stopped
prosecuting misdemeanor marijuana-possession cases. He then publicly
endorsed I-502.
The
law, which was sixty-four pages long and contained hundreds of specific
provisions, assigned the liquor-control board the role of regulating
the pot market. Yet many difficult questions remained: Who would be
allowed to grow legal marijuana? Who would be allowed to sell it? How
much would an ounce of legal pot cost? The legislation gave Washington
officials only a year to come up with answers. Randy Simmons, the
state’s project manager for I-502, says, “From the week after the
initiative passed, it’s been about a hundred and fifty miles an hour.”
The liquor-control board instructed Kleiman and his associates at
BOTEC
to submit research papers outlining the advantages and disadvantages of
rival approaches to legalization. They were to be paid two hundred and
ninety-two dollars an hour. In the spring and summer, Kleiman’s team
engaged in the often surreal enterprise of conducting market research on
a black market: producing reports on the number of active marijuana
users in each county; estimating how many retail cannabis outlets would
be needed to serve that population; assessing how various tax schemes
might affect the price of the drug. They also investigated protocols for
“product quality standards and testing.” Kleiman’s mandate was to offer
officials options, rather than prescriptions. But he has a lot of
opinions, and does not excel at hiding them.
If Seattle has
welcomed the legalization of marijuana with utopian optimism—a
conviction that Washington’s experiment will eventually sweep the
nation—then Kleiman can seem like a total downer. Allergic to cant, he
speaks with the bracing candor of a scientist in a disaster movie, and
appears to derive grim pleasure from informing politicians that they
have underestimated the complexity of a problem.
The council
meeting took place at City Hall, a glass-and-steel building overlooking
Puget Sound. Council members sat around a long table, looking scrubbed
and upbeat, as Kleiman—a large man of sixty-two, with a lumbering gait
and an unruly gray beard—took a seat before a microphone. “One of the
ideas that has actuated the cannabis-legalization movement is that law
enforcement really has bigger fish to fry,” he said. “We’d rather have
cops chasing burglars than pot sellers. And that’s a reasonable
viewpoint.” He paused. “But the implication of . . . a legal commercial
market is
not that you need less enforcement.” The city
councillors looked anxious. “That’ll be true in the long run,” Kleiman
allowed. “In the long run, there shouldn’t be much of an illegal
business. . . . In the short run, though, the answer is just the
opposite.”
When legal marijuana goes on sale, sometime next
spring, the black market will not simply vanish; over-the-counter pot
will have to compete with illicit pot. To support the legal market,
Kleiman argued, the state must intensify law-enforcement pressure on
people who refuse to play by the new rules. A street dealer will have to
be arrested in the hope that “you will migrate that dealer’s customers
into the taxed-and-regulated market.”
Officials in Washington
had been expecting a peace dividend, yet Kleiman was calling for a
crackdown. It was the kind of logical argument that nobody wants to
hear. Not even law enforcement: to a narcotics detective, pot
legalization can feel like an existential affront. As if to deepen the
insult, tax revenue from the sale of legal cannabis will be devoted to
substance-abuse prevention and research—not to police or prosecutors.
Who, then, was going to pay for such a crackdown? Although Kleiman urged
state officials to set aside funds for increased law enforcement, he
can get impatient with such complaints. He likes to say, “You don’t get
any of the revenue for arresting
robbers, either.”
He
left the city councillors with a warning: without intensified law
enforcement, pot legalization might not succeed. “The illicit market is a
paper tiger,” he concluded. “But a paper tiger doesn’t fall over until
you push it.”
As an undergraduate at
Haverford, Kleiman was a triple major in political science, economics,
and philosophy, and he readily concedes that he analyzes things to
death. His friend Phil Heymann, a professor at Harvard Law School,
recalls having lunch with Kleiman at a university cafeteria. Kleiman
launched into an impromptu analysis of the arrangement of the buffet
tables and the traffic patterns of his fellow-diners, riffing on the
optimal layout for the efficient allocation and consumption of lunch.
“There’s a puzzle-solving quality to Mark,” Heymann says. “He loves to
think through the decision theory of everything.”
Jonathan
Caulkins, a professor at Carnegie Mellon, worked with Kleiman in
Washington. In drug-policy circles, he says, Kleiman is known as a
prodigious generator of unorthodox solutions: “Not all of these ideas
turn out to work in practice, but a lot of what happens in the whole
field is Mark throws out an idea and then we all investigate it, check
it, respond to it.” Kleiman has never been married and has no children,
which allows him to crisscross the country, bestowing policy advice,
most often on matters of criminal justice. This year, he is on track to
hit a hundred thousand miles.
Kleiman prides himself on being
unconstrained by fixed ideas, and tends to discuss policy as if it were
an engineering problem—a dispassionate tabulation of costs and benefits.
He has been fiercely critical of the excesses of drug enforcement, but
he also distrusts the unfettered libertarianism of those who would like
to see all narcotics legalized. Harold Pollack, the co-director of the
University of Chicago Crime Lab, says, “Mark has a kind of iconoclastic
credibility that comes from the fact that he doesn’t fit neatly into the
usual ideological camps you find in criminal-justice policy.”
Ethan
Nadelmann, the executive director of the Drug Policy Alliance, a
national group that advocates the decriminalization of all drugs, is
more skeptical. “Mark has always caricatured the drug debate as the
hawks on one side and the doves on the other, and he’s the wise owl
sitting in the middle,” he says.
Although Kleiman has
consistently pushed for a relaxation of cannabis laws, on the ground
that marijuana is less harmful than alcohol and that the war on drugs
has not worked, he has expressed wariness about full legalization, which
he once described as “a heavy wager on a coin flip.” As recently as
2010, he condemned a ballot measure to legalize the commercial sale of
marijuana in his home state of California. In an op-ed in the Los
Angeles
Times, he observed, “The only way to sell a lot of pot is
to create a lot of potheads—not casual, moderate recreational users but
chronic, multiple-joints-per-day zonkers.” The initiative was voted
down.
But as the costs of prohibition accumulated—and
legalization began to seem not just possible but inevitable—Kleiman
began to reconsider his views. “We’re now in 1928,” he told me, likening
this moment to the final days of alcohol prohibition. “It’s about to
collapse under its own weight.” He was uniquely positioned to offer
guidance. “Mark has the advantage that he’s been thinking about these
questions for decades,” Thomas Schelling, the Nobel Prize-winning
economist, told me. “He is the best there is on drugs.” Last March, when
Washington’s liquor-control board announced the appointment of the
BOTEC
team, Kleiman wrote in a blog post, “All the claims we’ve made over the
years about knowing how to make smart drug policy are about to be put
to the test.”
Cannabis is the most widely
used illicit drug on the planet. For millennia, it has been cultivated
for both its medicinal and its psychoactive properties. Ancient Chinese
texts recommend the plant as a surgical anesthetic. Herodotus describes
the Scythians inhaling cannabis fumes, then shouting in ecstasy. In
America, cannabis became illegal only in 1937, and the ban has never
been especially effective. According to a Pew poll, more than thirty
million Americans have used pot in the past year.
Before
Kleiman entered academia, he worked in the government. In 1979, he
joined the Department of Justice, where he wrote a series of memos
arguing that aggressive enforcement of marijuana laws would be
counterproductive. At the time, most pot in America was a low-potency
product from Mexico; when U.S. authorities tried to impede smugglers,
they succeeded mainly in driving up the price, which enriched the
smugglers without significantly dissuading users. Moreover, by squeezing
the supply from Mexico, U.S. authorities inadvertently encouraged
domestic cultivators, who produced more intense strains of the drug.
In
1980, ten per cent of high-school seniors reported daily use of
marijuana, and Ronald Reagan denounced it as “probably the most
dangerous drug in America.” As President, he quadrupled federal spending
on drug enforcement. Kleiman continued writing memos, but nobody was
paying attention. In 1983, he left government for the Kennedy School, at
Harvard, turning his memos into a Ph.D. thesis and then his first book,
“Marijuana: Costs of Abuse, Costs of Control.” Kleiman argued that,
although legalization represented “a radical, near-complete solution to
the problem of the illicit marijuana market,” it also risked “a
potentially huge increase in the social costs of consumption.” A better
solution, therefore, was not the lifting of prohibition but “a severe
enforcement cutback.”
In 1996, California passed an initiative
to legalize medical marijuana. Studies suggest that cannabis can help
relieve the debilitating pain caused by chronic ailments and the nausea
associated with chemotherapy. It was a decisive moment for the public
image of the drug. “The only thing more potent than drugs as a negative
symbol is cancer,” a medical-marijuana advocate told Kleiman at the
time. “We’re going to make people choose between drugs and cancer. And
they’re going to vote for drugs.”
Since then, nineteen other
states and Washington, D.C., have passed similar measures. A 1991 survey
found that only seventeen per cent of Americans supported fully
legalizing marijuana. A Pew poll in 2010 showed that the number had
jumped to forty-one per cent. By now, a majority of respondents favor
the change. Young voters are twice as likely as the elderly to embrace
legalization. Shifts in attitude are discernible even in conservative
constituencies. The evangelist Pat Robertson recently told the
Times, “We should treat marijuana the way we treat beverage alcohol.”
Alison
Holcomb, a lawyer with the A.C.L.U. in Seattle, wrote the ballot
initiative that became known as I-502. She told me that her
public-outreach efforts had targeted moderate voters who were not
necessarily cannabis consumers themselves. “The majority of people don’t
like marijuana, but they also don’t like our laws,” she said. “So the
message pivot is that you can support reform while not liking
marijuana.” Holcomb highlighted the role of Mexican drug cartels, which
have made billions of dollars by supplying the American black market,
and have been responsible for more than sixty thousand deaths in Mexico
in the past seven years. Murderous cartels may be an even more potent
negative symbol than cancer.
In her campaign, Holcomb
emphasized that Washington had successfully legalized medical marijuana,
in 1998. Crime did not go up. The streets were not overrun with dazed
potheads. Instead, the black market gave way to a quasi-respectable, if
mostly unregulated, scene.
One afternoon, in the comfortable
Seattle neighborhood of Capitol Hill, I visited Muraco Kyashna-Tocha,
who runs Green Buddha, one of the oldest medical-marijuana dispensaries
in town. A woman in her fifties with short gray hair, she answered the
door in yoga wear, a giant white cockatoo balanced on her shoulder.
“Come on upstairs,” she said. “I’ll show you my grow.”
Kyashna-Tocha
has been cultivating marijuana for more than half her life. For many
years, she did it illegally, until she was ratted out by a landlord, and
busted, in 1997. Although the charges were dropped, the experience
traumatized her, and when Washington legalized the medical use of
marijuana she went into the dispensary business. She sells high-end
sinsemilla—unpollinated female cannabis flowers—to medical-marijuana
patients. Kyashna-Tocha is a patient herself: she told me that she has a
seizure disorder, degenerative disks, and lingering pain from old
operations.
Upstairs, we entered a humid, windowless room.
Thirty cannabis plants stood beneath a canopy of fans and lights. “I can
pull twelve pounds a year out of this room,” Kyashna-Tocha said. She
pointed at the bristly plants: “That’s an Alaskan Thunderfuck. That’s
Lemon Haze. Feels like espresso.
Really big buzz.” Talking to
boutique cannabis growers can resemble an encounter with an earnest
sommelier. There are two subspecies of cannabis, she explained: indica,
which mellows you out, and sativa, which boosts your energy and gives
you a buzz. She added, “I used a little sativa before you arrived.”
In
Washington, operating a dispensary is a legally ambiguous enterprise.
Patients who obtain a “green card” from a sanctioned medical provider
can grow up to fifteen cannabis plants. These users can pool their
plants and form a collective, in which the growers are “reimbursed” for
their costs. Kyashna-Tocha stressed that Green Buddha is nonprofit,
adding that it generates only a modest income for her. But many medical
outlets in Washington openly pursue profits. In a 2007 raid, Seattle
police recovered fifteen hundred plants from the home of one dispensary
owner. (The owner, who maintained that he represented twelve hundred
patients, was not prosecuted.) Moreover, many “patients” are
recreational users who have obtained a green card from a lax or
unscrupulous medical provider. In 2010, Kyashna-Tocha told me, the state
began allowing naturopaths to authorize cannabis patients, and “the
whole scene completely blew out—you went from five dispensaries to
sixty-five in, like, three months.” Some dispensaries stopped growing
their own pot, because it was cheaper (if illegal) to import large
quantities from California.
Kleiman considers the dispensary
business to be farcically unregulated. “Anybody can make you a
‘patient,’ including a nurse practitioner,” he says. “I don’t think
they’ve gotten to plumbers and veterinarians yet, but they’re getting
there.” It’s not clear how dispensaries will fare once legal pot stores
open. The framers of I-502, not wanting to alienate enthusiasts for
medical cannabis, pointedly sidestepped the fate of the dispensaries and
scarcely mentioned medical marijuana. Kleiman, however, was adamant
from the start: he argued that the new regulated market was more likely
to succeed if the state supplanted dispensaries with I-502 stores.
Medical marijuana is not taxed, so it may remain cheaper than legal
cannabis; Kleiman maintained that the solution was to make sure that
only genuinely sick people could receive medical cards, and then set up
the I-502 stores so that such patients could purchase pot tax-free.
One
advantage of the I-502 stores is that their marijuana will be tested
for mold, fungus, pesticides, and other impurities. The state’s
dispensaries are not required to subject their product to such
evaluations. Several years ago, Kyashna-Tocha established the Evergreen
State Cannabis Trade Alliance, which encouraged dispensary owners to
submit marijuana for testing, and issued a label for “patient-ready”
weed. But her effort stalled: few dispensary owners were willing to
incur the additional expense, and their customers were apparently
untroubled by the possibility of impurities.
When Alison
Holcomb started promoting the legalization initiative, the strongest
opposition came not from law enforcement but from dispensary owners. “It
was a horrible split that went right down the middle of this
community,” Kyashna-Tocha said. She supported the measure, and wept with
joy on election night. She hopes that the state can keep the new pot
industry small. “Think microbrew,” she likes to say. At her house, she
spoke excitedly about the possibilities of pot tourism: “I completely
see bed-and-breakfast tours! You go to where the grow facilities are in
the day, and then, toward dinnertime, you land in a couple of the stores
and make your selection.”
Even so, Kyashna-Tocha conceded
that many consumers are not attuned to horticultural subtleties.
“Budweiser is what sells,” she said. The sativa seemed to be wearing
off. She hoped to keep her dispensary alive by catering to connoisseurs,
she told me, but legalization might well render her obsolete. “I may
need to find a job about a year from now,” she said.
Relying
primarily on survey data, Kleiman and his colleagues determined that
Washingtonians consume a hundred and sixty-five metric tons of pot a
year. The BOTEC team concluded that
Washington could accommodate this demand with approximately three
hundred I-502 stores, most of them distributed along the Pacific Coast,
where use is highest.
Kleiman’s team next addressed the vexing
issue of price. Economic theory would suggest that prices in the black
market—and even in the quasi-legal medical market—are artificially high,
because there is a “prohibition premium” associated with products that
are less than completely legal. You’re not just paying for the
commodity; you’re compensating everyone who undertook risk in getting it
to you. In Washington, legal cannabis should be cheap to produce.
Growing costs are minimal, and curing marijuana is less costly than
curing tobacco.
If you make cannabis too cheap, however, you
run the risk of “diversion,” in which pot that is legal in Washington
feeds the black markets in surrounding states. In a recent letter to the
Department of Justice, a coalition of former drug-control officials
warned that “diversion of the drug will explode” once marijuana becomes
fully legal in Washington and Colorado. Alison Holcomb, the I-502
author, is untroubled by this possibility. She asked me, “If people in
New York are smoking Washington marijuana, isn’t that better than
smoking Mexican marijuana?” Diversion is another reason for Kleiman’s
call for a law-enforcement crackdown: if the Feds determine that cheap
weed is flowing out of Washington, they might shut the experiment down.
One
way to raise the price of legal marijuana is through taxes. Under
I-502, the state will take an excise tax of twenty-five per cent when
the producer sells to the processor (unless the producer does the
processing himself). Another twenty-five-per-cent tax will be imposed
when the processor sells to the retailer. Finally, consumers will pay an
additional thirty-five per cent or so in taxes at I-502 stores.
Washington’s liquor-control board estimates that the state will receive
up to two billion dollars in marijuana taxes over the next five years.
Kleiman
has wondered out loud, “What if we threw a legalization and nobody
came?” During the initial months of his contract, the liquor-control
board maintained that outdoor cultivation of marijuana would not be
permitted. But cannabis, like any agricultural product, takes time to
grow. Unless illegally cultivated plants were grandfathered into the new
system, the I-502 stores might not have sufficient inventory when they
opened. Kleiman and others pushed the board to allow outdoor plants,
which have a higher yield, and to create a “path to citizenship” for
cannabis plants that had been grown illegally. Troubled by the prospect
of pot shortages, the board eventually relented on both points.
Early
in the summer, Kleiman projected that legal cannabis in Washington will
initially sell for at least forty-two dollars for an eighth of an
ounce. Outdoor growing will lower that figure, but probably not enough
to undercut street dealers. Ben Schroeter, who goes by Ben Jammin, has
been selling pot in the Seattle area for forty years, and offers
high-quality, locally grown product for twenty-eight dollars an eighth.
He sells weed from California at twenty dollars an eighth. Some
customers may be willing to pay a premium for the convenience, and the
peace of mind, associated with buying legal pot that has been tested for
impurities. But Ben Jammin says, “I assume that a lot of people are
still going to come to me.”
At the city-council meeting in
Seattle, Kleiman said that the tax scheme outlined in I-502 was rigid
and shortsighted. Because of the state’s heavy surcharges, legal
marijuana will likely be more expensive than the illicit equivalent;
but, as production costs plunge, legal pot will become much cheaper.
“We’re gonna have a tax that starts too high and winds up too low,”
Kleiman said. He laid out a better approach: “The optimal tax system . .
. if I were doing it on a blackboard, would have been somewhat
homeostatic. You’re looking to maintain a price maybe a little bit
below, or a little bit above, the current illicit price. And, therefore,
you’d like to have the tax be low at the beginning . . . and
rise
as the cost in the industry falls.” The state didn’t reconsider its tax
plan, however; the prospect of an immediate windfall was perhaps too
tempting.
One group is definitely not coming to Washington’s
legalization party: minors. Scientific evidence suggests that marijuana
poses few long-term health risks to adults but can harm adolescents
whose brains are still developing. The liquor-control board has made it a
priority to keep people under the age of twenty-one out of I-502
stores. But, according to some studies, a quarter of marijuana consumers
are underage. Kleiman told the city council that it would be better for
children to get marijuana from parents or friends who buy it at I-502
stores than to obtain it through the black market, because of the
testing and the quality control. Moreover, if kids keep resorting to the
black market, they will sustain the criminal enterprises that I-502 was
designed to eliminate. “Once you have a licensed-store system, you
should expect—and in fact want—most of the pot that goes to kids to go
through that system,” Kleiman said, adding, with a seditious grin, “
You
can’t say that out loud. But I can.” Young people who can obtain a
green card already purchase pot from dispensaries. “Nineteen-year-old
kids on skateboards with a medical-authorization card,” Ben Jammin told
me. “
That’s the cash cow now.”
The
morning after Kleiman’s presentation at the city council, I drove to
Tacoma to meet with Jay Berneburg, a lawyer who works exclusively on pot
cases. Along the way, I heard a radio report on Kleiman’s presentation,
which highlighted his call for a police crackdown.
In the
reception area outside Berneburg’s office, I spotted a bowl of
matchbooks. Each one was emblazoned with his phone number and the words
“Drive Fast, Take Chances, Call Collect.” Berneburg is in his fifties,
and has a ponytail and wire-framed glasses. His voice has an ebullient
rasp, and he walks with a piratical swagger. “I have two hundred
dispensary clients,” he told me, before catching himself. “Well, I
represent
collective gardens.” Many of Berneburg’s clients have
worked in the marijuana industry for decades. When the liquor-control
board starts issuing licenses, he told me, his clients will have to
decide whether it’s worth it to “come in from the cold.”
He
introduced me to a client—a longtime grower who asked that I not use his
name. The man planned to apply for a license to grow pot, but
complained that, because of all the taxes and restrictions, he’d have to
“grow more to make less money.” Berneburg said that many of his clients
are ambivalent. “I can get a bag of weed as easy as I can get a dozen
eggs,” he said. “That’s the way it has been, and that’s the way it will
be. The black market’s not going anywhere.”
Allen Ginsberg
once suggested that the paranoia that sometimes results from smoking
marijuana is an effect “not of the narcotic but of the law.” Berneburg
and his clientele are dubious about the state’s intentions, and
Kleiman’s presentation to Seattle’s city council did not help matters.
“We’re going to have the
toughest enforcement in the country to make our legalization plan work?” Berneburg sputtered. “That is ass backward!”
In
his view, Kleiman’s proposal was driven not by high-minded policy
considerations but by the logic of the street: “Look at what a thug will
do for a thousand dollars. The
state wants to make millions! I’m
predicting a bloodbath, as the liquor-control board tries to capture
market share. We’re going to see some weird shit go down.”
Berneburg
began talking feverishly about jackboots and mass resistance, and I was
reminded that part of the allure of cannabis is its historical
connection to the counterculture. Berneburg recalled, “I was at a
Grateful Dead concert once when I was a graduate student. I complained
that there were cops there. And the guy I was with said, ‘It wouldn’t be
any
fun without the cops. If there wasn’t that risk and danger, who the fuck would care?’ ”
When
Kleiman is not on the road, he lives in the Brentwood neighborhood of
Los Angeles, in a book-lined apartment overlooking a narrow courtyard.
After I arrived there one morning, Kleiman prepared coffee, though he
doesn’t drink it himself. In another departure from convention, he
prefers hot chocolate, even in high summer. “I like chocolate, and it’s a
stimulant,” he explained.
In 1995, after many years as a
lecturer at Harvard, Kleiman moved to U.C.L.A. He enjoys the West Coast,
but his pallor marks him as an outsider. He grew up in a Jewish enclave
of Baltimore, where his father was a surgeon, and he misses the East
Coast, where his ardor for policy is less exotic.
When I asked
Kleiman about his experience with marijuana, he replied, “If you do
drug policy and you’re asked whether you use drugs, you’ve got two
choices. You can say, ‘Yes, I’m a lawbreaker. Please come arrest me and
ignore everything I say, because I’m a bad person.’ Or, ‘No, actually, I
don’t know what the hell I’m talking about.’ Since neither of those is
an advantageous admission, I don’t answer the question.”
He
was more forthcoming about psychedelics. He told me to look up a YouTube
video that captures a raucous conference organized in 1990 by the
Multidisciplinary Association of Psychedelic Studies. Kleiman, appearing
alongside Timothy Leary and Ram Dass, wears a tie-dyed T-shirt and
speaks about a future of “performance-enhancing” drugs. Kleiman told me,
“I’ve never met anybody who used cocaine thirty years ago and says,
‘You know, I really learned a lot from my cocaine use.’ But you know the
Steve Jobs quote about how Windows would be a better operating system
if Bill Gates had dropped acid just once?” One of Kleiman’s books is
called “Against Excess”—the title refers both to the war on drugs and to
drug use. Leary, he told me, was undone by excess: “The tragedy of the
sixties is that people managed to apply the drug-use practices of an
Irish drunk to a very different chemical.”
In 1986, Kleiman
and a collaborator, Peter Reuter, published a seminal paper, “Risks and
Prices,” which argued that the drug trade should be analyzed not as a
moral issue or a justice issue but as a market that is dynamic and
adaptive. After the paper was published, Kleiman told Reuter, “We’re
monopolists in selling drug-policy analysis. If only there were a demand
for it, we’d be rich!”
Kleiman and Reuter garnered an
academic following, and more scholars adopted their rigorously empirical
approach to drug policy. But Kleiman achieved his first mainstream
policy victory only recently, for advancing an idea called “swift and
certain.” Traditionally, criminals who have been placed on probation or
parole are subjected to random drug testing. A failed test is a
violation, and offenders sometimes receive extended jail sentences. But
the timing of tests is sporadic, and many probationers take their
chances and use drugs, either because they can’t control themselves or
because the minimal likelihood of a test encourages risk. For decades,
Kleiman argued that it would be better to schedule frequent drug tests
for people on parole or probation, followed by relatively minor
sanctions for those who fail. The idea was unpopular both with
policymakers who wanted to severely punish drug use and with those who
viewed addiction as a medical condition. Then, in 2004, a judge in
Hawaii instituted a pilot program mirroring the swift-and-certain
approach. People in the program were significantly less likely to use
drugs when they knew they would be sanctioned for it, even minimally.
And Hawaii’s criminal-justice system saved money, in part by reducing
the number of prisoners serving long-term sentences. In 2010, Kleiman
promoted the idea in a widely praised book, “When Brute Force Fails,”
and other jurisdictions across the country—including Seattle—adopted the
program.
Kleiman is gratified by this belated success, but he
is frustrated that most drug policy remains influenced more by ideology
than by data. There are few reliable studies about the dynamics of the
illegal drug market, and scientists are shockingly ignorant of the
pharmacology of cannabis. The Controlled Substances Act placed marijuana
in the most restrictive category of narcotics, which meant that it had
“a high potential for abuse” and no medicinal value. When scientists
have sought to study, say, the role of cannabis in easing pain or
diminishing seizures, they have faced considerable difficulty obtaining
plants for testing.
Only one facility in the U.S. grows
marijuana for scientists: the Coy W. Waller Laboratory, at the
University of Mississippi. Established by the government in 1968, it can
produce hundreds of pounds of pot in a year. During harvest season,
armed guards patrol the facility. In order to obtain weed from Waller,
academics must first seek approval from the Department of Health and
Human Services and from the Drug Enforcement Administration. Although
these entities have enthusiastically supported research into marijuana’s
dangerous properties, they have been wary of inquiries into possible
benefits of the drug. A few years ago, a team of researchers developed
an experiment to explore whether cannabis eased post-traumatic stress in
combat veterans. The team was denied access to pot from Waller. Kleiman
calls such incidents “a disgrace.”
In a 2012 federal survey,
ten million people reported having driven under the influence of an
illegal drug in the previous year, most commonly marijuana. Alison
Holcomb decided that I-502 should include provisions for testing drivers
for drug intoxication. But scientists know little about how the key
components of marijuana—tetrahydrocannabinol (THC) and cannabidiol
(CBD)—affect different users. So Holcomb opted for a blunt test: if you
are stopped while driving erratically, and your blood contains five
nanograms of active THC, you will be issued a D.U.I. citation. The
number is arbitrary: because marijuana affects users differently, the
presence of a certain level of THC in the blood does not correlate
predictably with a level of impairment. And if you are only an
occasional user your THC level tends to drop rapidly about an hour after
ingestion, whereas if you are a regular user the chemical can linger in
your system for days. Because many medical users consume cannabis
daily, the Washington test could have the practical effect of barring
sick patients from the road, even though their heightened tolerance may
leave them unimpaired.
No one is happy with the solution. The
Marijuana Policy Project, a national organization urging reform of
cannabis laws, argues that the THC test “criminalizes sober drivers.”
Studies co-authored by researchers at the National Institute on Drug
Abuse, meanwhile, suggest that a five-nanogram baseline may be too
permissive—that impairment is possible with lower levels of THC. Kleiman
points out that a blood test for THC cannot tell authorities whether
the driver took a puff five minutes or five days ago. “You’d need some
fairly fancy chemistry with metabolites to determine when the subject
used,” he told me. “A mouth swab might work, but that remains to be
developed.” (Some of the tax revenue from legalization will fund
research on marijuana intoxication.)
The lack of a proper test
is symptomatic of a larger problem. As Kleiman puts it, “We have done
essentially no research about the effect on individuals of different
mixes of chemicals.” I-502 declares that each legal pot plant should be
traced and tracked “from seed to sale.” Bureaucrats seem to agree that
cannabis should be sold with a label describing the drug’s effects. But
if you don’t have the science, what do you put on the label?
Increasingly,
consumers are moving away from smoking pot and shifting to extracted
oils, concentrates, and “edibles” such as pot-infused cookies. Kleiman
sees this as a potentially promising development: if you knew the
precise quantity of THC in an edible, you could design the product so
that it contained segments, as in a chocolate bar, and inform the
consumer about the buzz he might anticipate from each piece. “We need to
know at least as much about cannabis as Pillsbury knows about brownie
mix,” Kleiman likes to say. “And we don’t.”
This
summer, the liquor-control board held dozens of public meetings across
Washington, soliciting input about I-502. In the eastern part of the
state, which is more conservative, board members were lambasted for
flooding the community with drugs. In western Washington, they were
decried for being too stringent. When I asked Randy Simmons, the I-502
project manager, to describe the hearings, he said, “A circus.”
One
such meeting was held on August 6th, in a cavernous event space near
Seattle’s Space Needle. A crowd of about a hundred assembled to hear the
board members give short presentations. Citizens then approached an
open mike. One speaker introduced himself as Arthur West. A
medical-marijuana advocate, he began reading aloud from a six-page
statement denouncing the board. The board members whispered in anxious
consultation. Then Sharon Foster, the chair, announced, “Mr. West has
filed a lawsuit against us. So, given that, we will not respond.”
The
next speaker was a paunchy man in his sixties. “My name is Steve
Sarich,” he said. “I have not filed a lawsuit against you—yet.” The
crowd laughed. Sarich is well known in Seattle. He is an erotic
photographer turned pot impresario who operates a dispensary; until
recently, he also ran a company that makes edibles and a service for
obtaining medical-marijuana authorizations. The 2007 raid that recovered
fifteen hundred cannabis plants took place at Sarich’s home. He was one
of the loudest opponents of I-502, which, he claimed, would enable the
government to persecute cannabis patients through the D.U.I. provision.
Several people suggested to me that Sarich’s opposition was driven by a
desire to play the provocateur—and to protect his position in the
medical-marijuana market. He turned to the room and announced, “I can
guarantee that you’ve been lied to when they say, ‘We are not looking to
take over medical.’”
Foster was looking haggard. “Truly,
folks,” she said. “We do not have a role in medical marijuana at this
time, and we don’t know if we ever will.”
A tall, gray-haired
man introduced himself as John Dickinson. He announced that, at six
earlier forums on I-502, he had incorrectly said that he was once the
largest importer of hashish in the country. In fact, he had been No. 2.
“Thank you,” Foster said, tightly.
Dickinson
was not finished. Referring to the pot that will be sold at I-502
stores, he said, “I heard out in the hallway that you were going to put a
limit on how high the THC will go.”
“Rumors abound,” Foster said.
Dickinson
noted that some countries, like the Netherlands, had considered banning
strains whose THC content exceeded fifteen per cent. “Is there any word
about limiting the THC level?” he asked.
“No,” Foster said.
“Good!”
Dickinson exclaimed, smiling. “Because I was going to share with people
the strongest marijuana in the world.” He held aloft a baggie of weed,
to laughter and applause. “It’s
twenty-nine per cent!”
Another
speaker was Linzy Burton, a drug-treatment counsellor for young people.
A middle-aged black man, he stood out in the crowd. The proponents of
legalization in Washington appear to skew white and middle class, but
the population of users is considerably more diverse.
“My
family has a history of drugs and alcohol,” Burton began. “Everybody
knows that marijuana is one of the gateway drugs.” This claim has been
comprehensively debunked, and there were some groans of protest. But
Burton persisted. He said that in the south end of Seattle, where he
works, there was already a heavy concentration of medical-marijuana
establishments, many of them near schools. “How many more storefronts
will be allowed to open up in our community?” he asked.
One of
Foster’s colleagues assured him that I-502 would not permit many stores
to open in a single neighborhood. Burton had more to say, but Foster
reminded him that there were many others waiting to ask questions. He
pointed out that prior speakers had been permitted to ramble, and that
he was one of the few attendees who represented “the youth.” He began to
shout. “There’s people here who want to make
money on this! People like me will be dealing with the fallout.”
This
past spring, a former Microsoft executive named Jamen Shively held a
press conference in Seattle. Announcing his intention to raise as much
as a hundred million dollars and invest it in the pot business, he
proclaimed, “Yes—we are Big Marijuana.” The national pot market may
exceed thirty billion dollars, and a wave of media stories this spring
heralded the birth of a new industry. A headline in Vice: “GET RICH OR HIGH TRYING.”
Investors,
prospectors, speculators, and salesmen are scrambling to join the
so-called Green Rush. At investment summits, marijuana entrepreneurs
pitch potential angel investors. The continued taboo on cannabis can
give these proceedings a strange vibe. At one summit I attended, in a
Manhattan office tower, people pitching startups wore tags with their
full names, whereas potential investors wore tags that said only “Rick
R.,” or “John T.,” as if they were members of an addiction support
group.
When Kleiman learned of Shively’s press conference, he
wrote a lacerating blog post: “It was inevitable that the legalization
of cannabis would attract a certain number of insensate greedheads to
the industry. And I suppose it was also inevitable that some of them
would be terminally stupid.” Kleiman believes that the negative social
consequences of legalization may be severe if profiteers can turn
cannabis into a largely unregulated commercial product. He suggested to
Washington’s liquor-control board that it limit the volume that any
individual grower can produce under I-502, in order to curb the “power
of large producers.” In October, the board announced that the largest
producers will be limited to growing marijuana fields of thirty thousand
square feet.
Because marijuana remains illegal under federal
law, Kleiman is highly skeptical of the Green Rush. “Making money by
selling marijuana is a very risky proposition,” he told me. “Making
money by fleecing investors is much safer.” (The Financial Industry
Regulatory Authority recently issued a warning to investors about
“marijuana stock scams.”)
Under I-502, new pot businesses
cannot be vertically integrated: growers and processors must remain
separate entities from sellers. This provision is aimed, in part, at
preventing a single business from dominating the industry. But boosters
for the new pot economy have taken to citing an adage attributed to Mark
Twain: “When everyone is looking for gold, it’s a good time to be in
the pick-and-shovel business.” So-called ancillary businesses are not
barred by federal law, and the most careful investors are focussing on
these markets.
Brendan Kennedy and Michael Blue run a
private-equity firm, Privateer, that invests in the “cannabis space.”
They met at Yale’s business school, and take pride in looking painfully
square: they are clean-cut and athletic, and most days they wear suits.
When I visited them one day, in a borrowed conference room in Seattle,
they were making a pitch to a potential investor who had flown in from
Chicago. The investor, concerned that word might get back to his
professional circle in the Midwest, asked that I not divulge his name.
The
cannabis market, Kennedy informed the investor, is already “bigger than
corn.” He added, “The objective is to build a vertical conglomerate of
companies in the medical-cannabis industry and, ultimately, the cannabis
industry.”
As long as selling pot remains illegal under
federal law, any business that is openly connected to the trade will
find it difficult to put its money in a bank, because financial
institutions do not want to risk the legal exposure. According to the
National Cannabis Industry Association, fewer than half the
medical-marijuana dispensaries in the U.S. have bank accounts. They
struggle to make payroll, and have trouble paying taxes. One dispensary
owner told me about taking seven thousand dollars in cash to the
Washington Department of Revenue, to pay his monthly tax bill. He was
turned away, because the teller refused to deposit his “drug money.”
Privateer
has had its bank accounts shut down more than once. But, Kennedy
explained to the potential client, the firm does not “touch the plant”
when making its investments. Privateer has so far acquired only one
company, Leafly, which aims at becoming the Yelp of cannabis—a sleek
online guide to strains and dispensaries. Privateer recently closed a
seven-million-dollar round of funding, which it intends to invest in
other ancillary businesses, so that when pot becomes legal nationwide it
can assume a dominant position in the market for cannabis itself.
In
the interim, Kennedy said, he and Blue planned to “professionalize” the
industry, starting with its image. They disdain iconography involving
cannabis leaves or Bob Marley. Leafly’s Web site presents pot varieties
in a grid that wittily alludes to the periodic table. Kennedy and Blue
have sought advice from the Seattle marketing company Heckler
Associates, best known for inventing the name Starbucks. Scott Lowry,
the Heckler executive who handles the Privateer account, told me, “When
we started working with Starbucks, nobody was drinking upscale coffee.
It was pretty much Folgers in a can.” The cannabis industry represents a
similar opportunity, he said.
The investor had a question. If
marijuana became legal across the U.S., wouldn’t the price plummet,
decimating profits? Before Kennedy and Blue could respond, he supplied
the answer himself: “Volumes are going to go up, right?”
Kennedy and Blue exchanged an awkward glance. Then Kennedy told the investor, “I think volumes
will go up.”
This
is the most politically delicate aspect of Privateer’s sales pitch: the
unspoken premise that legalization will probably entice more Americans
to use marijuana. Presumably, there are potential consumers who do not
use cannabis today because it is illegal, or because they don’t want to
navigate the black market or obtain a dubious medical recommendation.
For others, the process of legalization may diminish whatever stigma
they associate with the drug. If legalization lowers the price of pot,
some people may choose it over other intoxicants, like beer. One of
Kleiman’s research papers suggests that kids are very likely to be
“price sensitive,” as are chronic users and the poor, because cannabis
“forms a larger share of their household budgets.”
If you’re
looking to invest in marijuana, all this is good news. But Kleiman finds
it troubling, from a policy perspective. He has long argued that the
problem with legalizing any vice—whether it be alcohol, nicotine, or
gambling—is that “addiction is where the money is.” Twenty per cent of
the Americans who drink account for almost ninety per cent of all
alcohol consumption. It cannot be news to beer and liquor companies that
their key demographic is the problem drinker.
According to
surveys, people who use marijuana “more than weekly” account for roughly
ninety per cent of cannabis consumption. A
RAND
study indicates that this trend is increasing: the number of “use days”
reported by the heaviest consumers has risen markedly in recent years.
Marijuana may not be physiologically addictive—you don’t go into severe
physical withdrawal if you abruptly stop using it—and no one has ever
died of an overdose. But even the most ardent advocates of legalization
generally concede that it can become a problematic habit for some users.
According to the National Survey on Drug Use and Health, more than
eight million people reported trying to reduce their marijuana
consumption in 2011.
The big riddle, Kleiman believes, is
whether marijuana might become a substitute for alcohol. He would be
happy if a switch to cannabis caused a decline in drinking. Alcohol use
has far more detrimental social costs than marijuana use, by virtually
any measure: addiction, accidents, violence, illness, death. But what if
users instead “complement” alcohol with pot? A recent paper in the
Journal of Policy Analysis and Management
suggests that, “as marijuana becomes more available, young adults in
Colorado and Washington will respond by drinking less, not more.” But
the truth is that scholars have done almost no research on consumer
preferences involving marijuana and alcohol, and how they might change
under full legalization.
Kleiman is fond of saying that the
U.S. government should triple taxes on alcohol. In his dealings with
Washington’s liquor-control board, he did little to hide the contempt he
feels for the country’s lax regulation of alcohol, and he warned that
I-502 blindly applied the state’s alcohol policies to marijuana. “The
alcohol model is a very, very bad model that’s had very, very bad
outcomes,” Kleiman told the board. “We shouldn’t want to do that again.”
One
afternoon this summer, Kleiman went to Washington, D.C., to attend a
symposium on legalization hosted by the National Institute of Justice.
In a speech, he said, “The primary impact of legalizing cannabis is
there will be probably six hundred and fifty thousand fewer arrests
every year and forty thousand fewer people behind bars. And there will
be an additional . . . fifteen billion stoned hours.” He looked out at
the half-empty auditorium. “You have to decide whether a stoned hour is a
good thing or a bad thing,” he went on. “That decision is going to
drive a lot of your judgment about whether legalization is a good idea
or a bad idea. But, even if you had your values straight, you’d have to
know the facts. And we mostly don’t.”
For years, Kleiman’s
resistance to outright legalization was based, in part, on a fear that
commercialization of the drug could triple its use. But when he arrived
in Washington State he proposed an audacious solution. In order to curb
problematic consumption, you could introduce a license for using
cannabis. We issue licenses to drive a car or to own a gun—why not a
license for consuming recreational drugs? Any adult could obtain such a
license, and the license could stipulate a quota for personal monthly
use. This quota would be set by the user, and could be large or small.
But, once the consumer had set a quota, it could be changed only in
writing—with a month’s notice. Such an innovation could counteract the
dangers of excessive, impulsive use by encouraging individuals to set
their own limits. Users could set very high quotas for themselves, of
course, but the provision would nudge at least some citizens into being
more responsible. To work properly, a personal-quota system would need a
central database of marijuana users, which would allow I-502 stores to
determine if customers were trying to exceed their monthly allotments.
Kleiman’s
solution was ingeniously eclectic—a hybrid that balanced individual
liberty and state control. Nobody liked it. He floated the idea to the
liquor-control board, but its members never seriously considered it. “In
their liquor-board hat, they don’t think of themselves as having
primarily a drug-abuse-control mission,” he said to me. “Their job is to
make sure the taxes are paid, hours are observed, and no direct sales
are made to minors. The idea of a personal quota has no place in that
system.”
Phil Heymann told me, “Mark’s instincts are not to
think too much about political feasibility. That would be a waste of his
talents.”
At the symposium in D.C., Kleiman told the audience
that his greatest worry about I-502 was advertising. What could the
type of marketing that turned millions of Americans into Starbucks
addicts do with marijuana? I-502 will restrict advertising near schools,
and campaigns cannot be aimed at children. But the Supreme Court has
interpreted the protections of the First Amendment to extend to
“commercial free speech,” and a ban on advertising a legal product might
be deemed unconstitutional. For Kleiman, one flaw of I-502 is that the
state will simply regulate stores owned by private individuals. It would
be better for the state to own and operate the stores—that way,
government officials could opt not to advertise at all. But states
cannot order their employees to violate federal law, so state ownership
is not yet an option. In any case, many states have eagerly marketed
vice for tax money, most notably with state-run lotteries and casinos.
Earlier this year, the liquor-control board unveiled a logo for
Washington State marijuana, with a cannabis leaf superimposed on a map
of the state. After an outcry that the state was “promoting” pot, the
design was abandoned.
“I don’t like stores,” Kleiman told me.
“Stores are basically marketing centers.” He tried to sell the
liquor-control board on an alternative approach: home delivery of pot.
Such services already exist for medical marijuana. But, to Kleiman’s
frustration, the board rejected the idea. At the symposium, he said,
“It’s very hard, in the somewhat Manichaean world of politics, not to go
from ‘Cannabis is illegal and you should go to jail for selling it or
using it’ to ‘Cannabis should be tightly regulated,’ without going all
the way to ‘We should sell it like cornflakes.’”
Ethan
Nadelmann, of the Drug Policy Alliance, thinks that Kleiman’s fears are
overblown: when the Netherlands decriminalized marijuana, consumption
levels rose, but they remained lower than in many countries where pot
was prohibited. The popularity of the drug has risen and fallen over the
decades, and nobody really understands why. If marijuana consumption
goes up in Washington in the coming years, it wouldn’t be possible to
attribute this shift entirely to I-502.
When I asked Alison
Holcomb whether she could live with a big increase in marijuana
consumption, she paused. Holcomb knows that legislators in other states
are monitoring the experiments in Washington and Colorado. “Would it
bother me if problematic use went way up?” she said. “Yes. Would it make
me think that we should go back to treating it as a crime? No.”
After
Kleiman’s speech, we walked to a coffee shop, where he ordered a hot
chocolate. His work for the liquor-control board was drawing to a close,
he told me. He and his BOTEC colleagues
had proposed several follow-up studies—“I think we have a way of
measuring the cross-elasticity of demand between alcohol and cannabis,”
he noted—but the board said that it had only so much money. “They are
properly quite focussed on the nuts and bolts of getting rules out to
the world, getting licenses issued, getting stores up, getting stuff
into stores,” he said. “I think we did some good by sort of urging them
to look beyond that.” In mid-October, a working group appointed by the
state legislature proposed abolishing the dispensary business,
tightening the system for authorizing medical-cannabis use, and
channelling patients into the I-502 stores—all ideas that Kleiman had
proposed.
Still, I got a strong sense that his experience in
Washington had not been entirely happy. By the time the liquor-control
board hired Kleiman’s team, the state had only seven months left to
construct a new economy. Officials had to barrel ahead, Kleiman told me,
and did not have the time to integrate innovations such as personal
licenses and home-delivery systems.
Randy Simmons, the I-502
project manager, observed that an academic can conceive regulations and
mechanisms that seem brilliant on paper but is spared the need to
reconcile that vision with “the real world of politics and all the
different stakeholders and making different groups happy.” Simmons
added, “They get to just say, ‘This is how we think it should be.’” When
James Cole, the United States Deputy Attorney General, was asked
recently about the Obama Administration’s decision to allow Washington
and Colorado to legalize and regulate cannabis, he said, “There
are
no perfect solutions here.” It appears that I-502, like so many
government programs, will be flawed from the start, and will demand
patchwork modification in the coming years. One imperative of political
life is that, at a certain point, you have to stop formulating a policy
and start selling it, and when this transition occurred with I-502
Kleiman may have become an impediment. He is not one for the unequivocal
endorsement. Yet, in his judgment, drug-policy questions are so complex
that, if you are not at least somewhat equivocal, you aren’t thinking
hard enough. He said of Washington’s state officials, “‘Complicated’ is
not one of their objectives at the moment.”
For now, Kleiman
will watch the rollout of I-502 from the sidelines, and blog about it.
“It’s disappointing,” he told me. During one of our conversations, he
paraphrased a famous joke about Hubert Humphrey: “Poor Hubert—he’s got
solutions the rest of us don’t even have problems for.”
By
January, Washington will have started dispensing licenses to grow and
sell marijuana. Ben Jammin, the dealer, told me, “We’re not sure what’s
coming—but it’s coming.” Kleiman is happy to see prohibition end, and he
hopes that legalization is a great success, but he is no longer
optimistic. He told me, “I think commercial production and sale of
cannabis is going to end in tears.”
♦
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