Come New Year's Day, in Washington state and Colorado, marijuana will be legit, courtesy of two ballot initiatives. How do you create a legal business out of an illegal one? After 13 years of Prohibition, the country at least had an earlier legal liquor market to refer to. That's where Mark Kleiman comes in, the go-to expert on these matters. A UCLA professor of public policy and author and coauthor of books like "Marijuana Legalization," he's heard all the jokes about "hemperor" and "your serene high-ness." He was consulted by Washington state's liquor control board, which has to come up with the nuts and bolts for the new law and which asked him for, well, the straight dope.
What did Washington want to know?
They really wanted numbers from us: How big is the market? How do we allocate stores across the counties? What impurities should be tested for? What are the environmental impacts of cannabis production? If we limit the amount produced, what should we use as the basis? Ounces? Grams? Production space?
Didn't the initiative make provision for all that?
As far as I know, nobody who wrote that initiative consulted with anybody in public administration, or about the supply chain or any of the other stuff that goes into this. I once tried to make a list of the disciplines you would have to know to make good drug policy, and I stopped at 25. Medicine, psychology, pharmacology, law, international law, social psychology — there was no way people writing an initiative would have gone through the full analysis.
Washington is taking applications and will be issuing licenses. I think there was hope that stores would be open Jan. 1. I think we're looking at late winter or early spring.
What advice did you offer?
We didn't really make recommendations; we were providing facts and options. [Personally], I wanted to allow home delivery instead of stores. Washington had had a long fight about home delivery of liquor — they were worried they couldn't control it.
I was pushing for something fairly elaborate in the way of vendor training. This started out as a question of what to require on the label. Do you just want chemical analysis? Or do you want something that'll tell the consumer what this is likely to do to them?
You've got at least two chemicals that matter — THC and cannabidiol — and another 60 that might matter. At least you'd want those two numbers, or a potency rating. I was ready to find out [the data], and the papers weren't there. You can't do that research in the U.S. because you can't get the pot. I keep saying we don't know nearly as much about cannabis as Pillsbury knows about brownie mix.
You know the "slow" sign on the highway? To have a label that says "go slow" on any package with more than 6-to-1 THC to CBD, we couldn't find the science.
We haven't tried it on a thousand different consumers in different ratios to see what happened. There's no place that this stuff is [fully] legal. Even in the Netherlands, it's illegal to grow. As I kept saying, we're figuring out how to issue state licenses to commit federal felonies.
Were the bureaucrats flummoxed?
They weren't flummoxed. They were terrific to work with. Washington is probably the best-governed state in the country. Politics is regarded as honorable; it's not disgraceful to be a public servant. Nobody on the liquor board knew anything about this going in; by the time we got there, a couple of them had made themselves serious experts. They acknowledged the complexity, then said, "OK, how much of this complexity can we deal with and still get our regulations [written]? We know they're not going to be perfect, so we're going to monitor what actually happens and modify it."
You say legalization will require more law enforcement at first, not less.
The initiative allocates money from the cannabis tax to education, healthcare and drug treatment. What did I just leave out? Law enforcement. None was allocated to law enforcement. That reflects the politics of the people who do marijuana legalization initiatives.
Law enforcement doesn't get money [specifically] to arrest burglars; they arrest burglars because it's part of their job. Still, I can understand their resentment. They're undergoing budget cuts and here's this initiative that puts more work on them, and the [tax] money goes to everybody else.
Washington is going to have privately owned stores. Why couldn't it run the operation itself?
The law didn't provide for state-run stores. Here's another rub: Washington requires every official to take an oath to uphold the U.S. Constitution, which includes the supremacy clause [acknowledging federal authority]. I don't think you can have state officials selling marijuana, which is illegal under federal law.
How do you think it's all going to shake out?
I was worried at the beginning there would be so many regulations and taxes that the licit price was going to be above the illicit price. Unless you can capture the market from illicit sellers, it doesn't matter what your regulations say.
The law requires tracking every plant, seed to sale. The problem is, somebody gets a license and starts growing plants Jan. 1, they're not ready to produce pot until April or May. Then it has to be cured, and they have to get it to the stores. I was worried that we were going to have stores open and nothing in them to sell. They've decided to allow people who are growing medical marijuana [Washington approved medical marijuana in 1998] to register them — a path to citizenship for undocumented plants.
So there's going to be pot in the stores and it's going to be reasonably priced even after tax. Now you're going to have to worry about what happens when it gets too cheap, which I predict it will around August. Tax revenue drops. And drug abuse goes up when stuff's cheap.
Will it be workable?
It'll work. [Now] I'm worried that it'll work too well. If the price falls to the point where the retail price is lower than the wholesale illicit price, then you'd have pot dealers from [other states] organizing teams of student [buyers]. In the federal government's list of things they were worried about, access by kids and out-of-state exports were two of them.
We have to keep reminding people that it's not as if our existing system is working. One group says, "Oh my God, this is going to be terrible," and I say, "Is the current system any better and do you have any plans short of legalization for fixing it?" And the answer is pretty much silence.
On the other hand, I say if you legalize it, the price is going to drop and you're going to get a lot of drug abuse. [Marijuana proponents] say, "Well, prohibition is terrible." And I say, that's true; how are you going to fix the problem?
Is Washington going to be one of those great state laboratories of democracies we hear about?
I hope so. I noticed Oregon is planning to go ahead with an initiative for 2014, which means before we know anything.
What about legalization in California?
I think we'll have an initiative by 2016. The task force writing it is dominated by straight-out legalizers, so we're going to get something that looks like Colorado's and Washington's.
Los Angeles voted this year to crack down on medical dispensaries — haven't the public's intentions been abused?
You'd think that, but in fact support for legalization keeps going up. As far as I can tell, the voter response is, "Oooh, I guess we legalized marijuana, didn't we, and the sky didn't fall."
As a result of changes in public opinion, I've decided all the talk about whether to legalize marijuana is a waste of time, so now let's talk about how. I always thought it was going to be complicated, [with] costs as well as benefits, but the costs of maintaining the current system are intolerably high. Twenty years ago, marijuana was a sixth of the illicit drug trade in this country by dollar. Now it's half. You've got 30 million people a year smoking. A law that 30 million people a year break is not a good law.
Where is the federal government in this? There's already friction over medical use, and now this is recreational.
The feds are going to sort of lay off Colorado and Washington insofar as priority enforcement areas. The Treasury [Department] still has to come down on whether to allow banking [to participate]. Right now it's a purely cash business. You can't go in with your debit card and buy, and the store can't have a bank account. With any luck, the banking regulators will issue something that tells banks, OK, you can open an account for these [businesses].
Is someone in the bowels of the DEA trying to figure this out?
Nope. Somewhere in the bowels of the DEA, someone is desperately hoping this doesn't work. They hate this like poison. Their general view is, no, it'll be a disaster, then people will react against it and we'll go back to prohibition.
The country's not in the mood for more regulation.
This interview was edited and excerpted from a taped transcript.
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