How to legalize cannabis safely without curbing liberty

While the debate about legalization of cannabis is endlessly fascinating, it obscures the vital question of how to manage legal availability.

Prohibition produces some very bad results. It deprives millions of people of the liberty to pursue what would be, for them, a harmless pleasure. It creates an illicit market that delivers tens of billions of dollars a year to criminals. It leads to large numbers of arrests (mostly for possession for personal use) and a smaller but substantial number of incarcerations (mostly for growing or dealing). The black market fuels corruption and violence worldwide.

On the other hand, prohibition maintains high prices, discouraging heavy use and use by minors. The problem is how to shed the harms of prohibition while minimizing the harms of legalization. The desirable outcomes are cannabis available to adults who want to use it in moderation and abolition of the illicit trade but without significant increases in habitual heavy use or in more-than-occasional use by minors. Alas, current legalization efforts in the United States, replacing prohibition with commercial production and sale after the fashion of alcohol, have little prospect of getting us there.

Some rise in problem use is inevitable if cannabis becomes cheaper and more available. But a move to commercialization multiplies the risks. As my colleagues and I have calculated, a licit industry would be financially dependent on the minority of consumers who become chemically dependent, just as the alcohol industry derives most of its revenue from periodic binge drinkers and chronic alcoholics. Alcohol and cannabis follow the 80-20 law: 20 percent of users account for 80 percent of sales, and most of those heavy users suffer from substance abuse. The interests of the cannabis industry would therefore be in direct conflict with the public interest, giving the industry a strong motive for using its muscle to resist measures against drug abuse.

Cannabis is naturally cheap; only prohibition makes it expensive. The Rand Corporation’s Drug Policy Research Center has estimated the free-market price at no more than 10 percent of the current illicit-market price. Since an hour stoned already costs less than an hour drunk, casual users would gain little from lower prices — even now the cost barely registers in their personal budgets. But for cash-strapped teens and heavy users, a cost of pennies per cannabis cigarette would be an invitation to dive in; and a for-profit industry would reinforce that invitation with relentless promotion.

High taxes and tight marketing restrictions might, in principle, curb the damage. But why should we expect such measures to surmount industry opposition? Here, again, the case of alcohol provides fair warning.

A large increase in problem use might be a price worth paying to rid ourselves of the many ills attendant on prohibition. But it is not a price we have to pay. Smarter policies could lead to better outcomes.

Legal production and sale could be restricted to consumer co-operatives; to not-for-profit enterprises with trustees charged with preventing abuse; or to a state monopoly run as a branch of the health service rather than the revenue agency. Non-commercial vendors would be less likely to offer cannabis-infused sweets in packaging that mimics children’s sweets or infuse cannabis into fruit-flavored drinks, as now offered by the "medical marijuana" industry in the United States.

One measure to limit abuse — consistent with either commercial or non-commercial distribution — would be user-set personal periodic limits on consumption: an instance of the "libertarian paternalist" strategy of "nudges" towards sensible behavior.

Almost no one plans to become a heavy daily user. Abuse is the accretion of countless undramatic decisions, each taken under the lure of current amusement, pleasure or relief, and neglecting the future. If each user, on starting to purchase cannabis, were required to choose a personal monthly quota, to be enforced by retailers, users’ long-term interests might have a fighting chance of competing with short-term impulses. Persuading people to set such limits would require persuading them that they are at risk of falling prey to cannabis abuse. Users could increase their limit but only with, say, two weeks’ notice; in the meantime, retailers would be required to dishonor purchase requests above the limit.

User-set limits would impinge on no one’s liberty; a consumer who did not want such protection could simply set a high limit to start with. Of course, some would do so, and some would progress to dependency by repeatedly raising their personal quotas. But others, made mindful of the fact that their consumption was exceeding their original intentions, might leave the limits in place, using them as props to moderation.

Perhaps continued prohibition is the worst option. But turning the business over to a money-hungry industry might well be the second- worst. Why not choose better?