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Pot Shots at Prop 19 Fall Flat

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The Heritage Foundation recently published a legal memorandum that expresses alarm about the upcoming ballot initiative in California, Proposition 19, which would basically legalize cannabis. The paper warns that the measure will bring negative consequences--crime, birth defects, and social dislocation--so its analysis warrants a close read.

To support its conclusion, the memorandum makes many claims. Let's examine some of them.

First, the Heritage memorandum claims that "No one knows the specifics of how marijuana decriminalization would work in practice." This is wrong. In 2001, Portugal decriminalized not only marijuana but all drugs. The Cato Institute published a report after the policy had been in place several years and it turns out that the doomsayers were wrong. The predicted spike in drug use never happened. Other countries in Europe are studying Portugal and are moving away from the hard-line criminal approach to drug use.

The Heritage Memorandum repeats the claim that cannabis is a "gateway drug" that can lead users "to more dangerous drugs." The gateway theory has been discredited. It is like saying bicycles are a "gateway" to motorcycles. Yes, some motorcycle riders had bikes when they were young, but there is no causal relationship between the two objects. Same thing with drugs. Millions of people try marijuana and stop. Millions of other people use marijuana every year and never move on to other drugs.

The Heritage Memorandum reports that "In 2008, marijuana alone was involved in 375,000 emergency room visits." This sentence conjures images of ambulances rushing to hospitals because of marijuana use. Not true. It is sensible for medical personnel to ask patients about their bodies, including smoking and drinking practices. Since we know millions of Americans are using cannabis, it should come as no surprise that hundreds of thousands of patients confide use to doctors and nurses.

Next, the Heritage memorandum claims that one should not compare the drug war with alcohol prohibition. One important difference between marijuana and alcohol, the memo says, is that liquor is "rarely consumed to the point of intoxication." Rarely? According to the Department of Justice, it is not so rare: About 75% of the alcohol consumed by adults in the United States is in the form of binge drinks. (It may well be that 20% of the drinkers do 80% of the binge drinking, but other drinkers frequently get to the point of intoxication). In any event, the comparison with alcohol prohibition is on the mark. The goal was to use the criminal law to suppress alcoholism and problems related to drunkenness. After several years it became evident to more and more people that prohibition was creating more problems than it was solving--so the movement for repeal eventually prevailed.

The Heritage memorandum says that proponents of Prop 19 are "touting the potential benefit of legalization to the government, in terms of additional revenues from taxing marijuana and savings from backing down in the 'war on drugs' ... To date, no such realistic cost-benefit analysis has been done." Actually, here is a cost-benefit analysis prepared by Harvard economist Jeff Miron and his research associate Katherine Waldock. They calculate that California could improve its fiscal situation by about one billion per year. Heritage analysts should know that top economists, such as Milton Friedman, Gary Becker, and Thomas Sowell (among many others) have critiqued the drug war policy as counterproductive.

The Heritage memorandum claims that if Prop 19 were approved, it would conflict with the federal criminal statute, the Controlled Substances Act and thus "invite litigation that would almost certainly result in [Prop 19] being struck down" as unconstitutional. This legal claim is dead wrong. While it is true that the supremacy clause of the Constitution makes it clear that federal law will override a conflicting state law, that clause simply has no application here. The federal law on marijuana remains in force, but that does not mean that a state government is under any obligation to assist the feds. As the Supreme Court noted in New York v. United States (1992), the state governments are neither "regional offices nor administrative agencies" of the federal government. Let's take another example. Suppose Congress were to criminalize, say, cotton candy--would California be in violation of the Constitution because its police agents are not now empowered to arrest people producing and possessing cotton candy? No. Nor could Congress compel the California legislature to move against cotton candy producers and consumers. Here again is the Supreme Court: "Even where Congress has the authority to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts." (New York v. United States, 505 U.S. 144, 166 (1992)). Prop 19 is consistent with the constitutional principle of federalism.

The Heritage memorandum concludes its analysis of Prop 19 by saying the legalization movement is "long on rhetoric but short on facts." In light of the above scrutiny, the validity of that last claim should be evident to all fair-minded readers.

Tim Lynch is director of the Cato Institute's Project on Criminal Justice.