Today there are 17 states plus the District of Colombia where possession of cannabis has been decriminalized. While three of these jurisdictions have since gone on to legalize possession (Washington State had not decriminalized cannabis possession prior to its successful initiative to legalize cannabis), there are still 14 states where possession of personal amounts of cannabis has been decriminalized but which do not permit any path to legal acquisition. Further, a lot of state legislatures, feeling the pressure from a public tired of an expensively failed war on drugs and exasperated by a notoriously irrational approach to cannabis policy, are considering decriminalization, probably in part to forestall full legalization. (Despite the sea change in public opinion, most legislators at both the state and federal levels remain staunchly pro-prohibitionist, firmly believing in the Gateway Theory and, one would presume, that the Earth is flat.)
Because so many politicians seem to view decriminalization as a valid compromise between the draconian policies of full prohibition and the terrifying possibilities of full adult discretion, it is perhaps timely to discuss these two competing approaches and discuss the pros and cons of each. This article therefore will take a look at decriminalization and contrast it with legalization.
As hopefully most people are aware, decriminalization differs from legalization in a number of important ways. Firstly, it usually does not involve complete elimination of penalties for cannabis possession. It does however eliminate the threat of jail time and usually replaces criminal penalties with a civil fine that does not result in a criminal record. Legalization on the other hand does not involve any sort of penalty for possession, criminal or otherwise. Ideally, it also provides a legal path to possession, such as retail sales or, at a minimum, the right to grow one’s own.
Problems with decriminalization
Decriminalization seems to be a less bitter pill for legislators to swallow, but I for one cannot fathom why. It has a number of disadvantages over a legalized and regulated market such as the one newly established in Colorado (which is currently the gold standard in cannabis regulation).
What about the children?
The biggest disadvantage is that it can act as a subsidy to the black market. Basically, by removing penalties on consumers, decriminalization can fuel demand. And anybody who has studied Macroeconomics 101 knows that if demand goes up then that will put an upward pressure on prices which in turn will tempt new suppliers into the market. This means more people will be competing to sell cannabis in order to profit from the increased demand. Normally this is not a problem but there is nothing normal about a black market. Black markets are the children of prohibition and as such they grow up wild and reckless and without any of the restraints common in more civilized markets. Among the missing restraints: rules to keep cannabis out of the hands of minors.
There is currently no proof that cannabis when used by minors can cause problems, but there are a lot of studies that strongly suggest as much, especially with regards to regular and heavy consumption by teens. I personally feel that prudence would require parents and their kids to err on the side of caution and postpone cannabis use until adulthood. (Cannabis when used in moderation by adults is harmless.)
A person’s teenage years are marked not only by a maturing brain but also by the need to arm oneself with skills necessary to succeed in life, and spending too much time using cannabis during this time can in my view interfere with both of these important developments. If we as a society are truly interested in preventing the one cannabis usage pattern that does appear to be harmful — heavy and regular use by teens — then we should implement the only policy that has ever proven successful at stemming this usage pattern. That means we need to legalize and regulate cannabis use.
As noted above, black markets are the children of prohibition and as such they grow up wild and reckless and without any of the restraints common in more civilized markets. Among the missing restraints: rules to assure that the product is safe, consistent, and unadulterated. In regulated markets, cannabis users can select a strain specific to their needs. Often THC and CDB levels, as well as levels of some of the better understood remaining cannabinoids, are printed on the label and dispensaries take precautions to prevent mold- or insect-infested product from reaching consumers. Admittedly, there have been some bumps on the road with regard to edibles but again, thanks to the bright light of legality these problems were confronted and resolved in a mature and responsible manner.
Another argument, and one that resonates especially with me, is that decriminalization is still fundamentally unethical because it punishes people for behaviors that do not rightfully belong in the government’s domain. Drinkers, for example, are not fined if they are caught with a beer in their home so why should cannabis consumers face censure for similar behaviors?
Although DC has nominally passed a legalization bill, because of constitutionally imposed constraints on the sorts of measures that can be passed via voter initiative and referendum the current law does not provide for a legal path to acquiring cannabis except through home growing. Home growing however poses a lot of problems. For one thing, it is not as easy as dropping a couple of seeds in some dirt and remembering to water every now and then. Cannabis has extremely specific requirements with regards to lighting, humidity, air flow, temperature, and nutrients. The gear required to set up a grow is expensive and the constant supply of electricity and water significantly add to the expense. It also requires a lot of work and a significant amount of know-how plus at least one and preferably two extra rooms. Even with the investment of time and money, there is still a good chance that insects, mold, or a sneaky male plant can ruin an entire crop. And of course there are all sorts of fire and flooding hazards that can be caused by improperly installed cannabis gardens. For these reasons as well as others many people will still choose to obtain their so-called legalized cannabis from the black market. DC’s legalization will therefore have the same effects on the black market that decriminalization has. And, thanks to the amazing foresight of a certain Congressman from Maryland, the District will not be able to enact legislation until at least September 2015, or possibly later if the rider gets kicked forward into future spending bills.
Benefits of decriminalization
The main benefit of decriminalization is that people no longer need to face incarceration for simple cannabis possession. This is really the only benefit but it is in fact a huge one. There are no words sufficient to describe the destruction to a person’s life that a criminal conviction can cause. Even if there is no jail time, the mere presence of the conviction on a person’s record can affect eligibility for student aid as well as for employment. People who rail against legalization because they do not want to support cannabis users who will in their view inevitably end up on welfare fail to realize the cost to the taxpayers of cannabis prohibition, both in terms of confinement costs and in terms of social costs required to support a person who is not allowed to work to his full potential because of what is essentially a harmless and arbitrarily defined crime. And of course there is no way to quantify the opportunity costs, both to individuals and to society as a whole, because we will never know what might have been if all of these (mostly young) people had been allowed to reach their full potential.
Because of the destruction that an arrest can wreak upon a young person’s life, and because of the vast number of lives routinely destroyed in this manner because of harmless cannabis possession, I am inclined to be supportive of decriminalization despite its perversely vitalizing effect on the black market. If your state legislature or other governmental body proposes decriminalization, I think you should support it. Once it passes, say Thank you. Then immediately start pushing for a fully legalized and regulated market.