Why the President (Probably) Won't Legalize Marijuana

If the New York Times runs an Opinionator column called "Give Pot a Chance," chances are things are changing in America... though not necessarily the way people assume. The column's argument calls on President Obama to legalize marijuana and have, as its kicker states, some "backbone." While that's one take on the matter, the political math is that a white libertarian-leaning Republican president (someone like former Republican New Mexico Governor Gary Johnson ) would be more likely to legalize marijuana than a black centrist-progressive who gets called a socialist (and more furious/ludicrous claims) on a daily basis. The political math there just doesn't add up for a president who's juggling Mideast tensions, a slow jobs recovery and a panic-inducingly-named "fiscal cliff."

But that's the politics. Let's break down the common-sense issues a bit. Marijuana has health risks both mental and physical, but studies show it's much less addictive and kills far fewer people than alcohol or tobacco, which are both legal.

If today's marijuana laws were a psychedelic musical, the citizens of Colorado and Washington State who voted for lawful recrational use would be singing "Legalize It," with a sharp transition into the "No you can't! Yes I can!" chorus from "Anything You Can Do (I Can Do Better)." Singing the negatory role would be a bunch of G-men in sharp suits: the Federal government. The legalizations, by ballot initiatives, produced some ab-fab political rhetoric. For example, Colorado Governor John Hickenlooper released this statement: "The voters have spoken and we have to respect their will. This is a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug, so don't break out the Cheetos or goldfish too quickly."

Where is marijuana law in America headed? Legalization and decriminalization of marijuana are two different things. Under the first model, legalization, marijuana would revert to being a legal and taxable good, as it was until the 1930s. The government could and certainly would regulate everything from worker safety to product labeling. (Organic, conventional... or GMO? Monsanto might want a share if the market got acceptable enough.) Depending on state regulations, you might have to buy marijuana at a state dispensary (the way New Hampshire handles liquor); or it might be behind the counter at a Duane Reade; or maybe the guys who run delis would be able to stock packets of joints with the cigarettes, and ask for IDs. The possibilities include the variety and complexity of state and local regulations around existing products including alcohol, tobacco and the morning after pill. Medical marijuana dispensaries are a form of legalization replete with taxation. For example, in 2011, the state of Colorado got $5 million in tax revenue from dispensaries, double that of the year before.

One of the many groups opposing legalization are current pot growers, medicinal and otherwise, who would probably lose out in the long run to agribusiness, the same way small-time tobacco farmers did. At the very least, the profit margins would shrink radically. Part of the market price of marijuana today includes all of the complex maneuvers it takes to sell the vast majority of it illegally, ranging from payoff money for law enforcement to arms purchases and casualties from turf battles.

Decriminalization is a different model, one practiced in many ways in various municipalities. In Harvard Square, you can see kids (usually not the students) smoking weed in public. That's because possession of small amounts is decriminalized -- with caveats -- in Massachusetts. Since 2008, state law dictates that anyone over 18 found with an ounce of marijuana or less will receive a $100 fine... if anyone even attempts to fine them, which appears not to be that common judging from the street scene in Cambridge. Now, I'm not saying Harvard students don't smoke pot. When I was teaching there in early 2012, I heard a student brag on his cell phone: "I have four joints and two six packs of Corona." It's just that the students smoke in the dorms, and the buskers smoke in the Square.

The state of Massachusetts and the City of Cambridge make no money off of the sale of marijuana. It's not taxed or regulated for safety. No one checks if it's been sprayed with harmful pesticides, or checks your ID to see how old you are when you buy it. What decriminalization does do is get rid of a bottom tier of criminal possession arrests and prosecutions. Dealers can still be prosecuted, and of course police have to parse the line of what constitutes the legal possession amount, let alone who to stop and frisk on suspicion of dealing. But logistically it rids the court system of a bunch of low-level defendants and potentially shifts the criminal justice system's emphasis toward violent and serious property crimes. The law is too new to have a comprehensive study on cost-savings, but an analysis by Harvard lecturer Jeffrey Miron estimates the law saves Massachusetts $30 million per year in criminal justice costs.

Central American countries which bear the costs of law enforcement and civilan casualties from drug cartels are beginning to ask why they should keep marijuana illegal if the U.S. doesn't. That's just one of the big questions looming ahead in this fight. Oh, and there's that question of state's rights -- so often quoted in the context of issues like abortion and gun laws; now coming to a dispensary near you.