Tag: Marijuana

Gary Johnson and Drug Policy

As governor of New Mexico, Gary Johnson succeeded in eliminating New Mexico’s budget deficit, cutting the rate of growth in state government in half, and privatizing half of the state prisons. During Johnson’s term, New Mexico experienced the longest period without a tax increase in the state’s history. He vetoed 750 bills in eight years, more than all other governors combined. The Economist dubbed him “America’s boldest governor” – and that was before he took on drug prohibition. He discussed drug policy and other issues at the Cato Institute November 1, 2010 at a Cato on Campus forum.

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Prop 19, Employment at Will, and Social Peace

Writing at CNN, my colleague Jeffrey Miron puts his finger on one reason for the disappointing defeat of California’s Prop 19:

Prop 19 failed also because it overreached. One feature attempted to protect the “rights” of employees who get fired or disciplined for using marijuana, including a provision that employers could only discipline marijuana use that “actually impairs job performance.” That is a much higher bar than required by current policy.

Like so many other developments in employment law in recent years, this would have chipped away at the basic principle of employment at will, which holds that in the absence of a contract specifying otherwise, either party to an employment relation may end that relation at any time for any reason or for no reason at all.

It was no doubt inevitable that the proposition would fare poorly among self-identified conservatives and older voters. But the “users’ rights” provisions were enough to raise doubts even among liberty-minded thinkers like David Henderson, who predicted that by signaling hostility toward freedom of association, such provisions would “make the drug-legalization hill even steeper.”

Marijuana of course remains illegal under federal law, which means that its consumption would at one and the same time have been 1) protected under employment-discrimination rules, and 2) illegal and subject to prison sentences. If this paradox seems vaguely familiar, maybe it’s because not that many years ago – before the Supreme Court’s 2003 decision in Lawrence v. Texas – there were localities where consenting homosexual conduct was simultaneously protected under one set of laws, and unlawful under another. Indeed, there were more than a few advocacy groups that worked to promote the new controls over employer decisionmaking and yet never troubled themselves to work for repeal of the still-on-the-books anti-gay prohibitions. If the goal is to achieve social peace, however, rather than wage constant culture war on each other, you’d think the “leave people alone” message would hold more appeal than the “fall in line or you’ll hear from our lawyers” message.

Jeffrey Miron surmises, no doubt rightly, that the problem of undislodgeable tenured stoners in the workplace would be more the exception than the rule. Yet it’s worth noting that the issue has already arisen in various lawsuits in which workers with a doctor’s note recommending marijuana use have contested firings. Lawyers have also eagerly cobbled together suits over related issues, as with this class action noted less than two years ago at my other website, Overlawyered:

Starbucks’s job application asked prospective baristas if they’d been convicted of a crime in the past seven years and added for “CALIFORNIA APPLICANTS ONLY”, at the end, that minor marijuana possession convictions more than two years old didn’t have to be disclosed, in accord with a state law along those lines. Entrepreneurial lawyers then tried to steam-press $26 million or so out of the coffee chain on the following theory: that the clarification was placed too far down the application after the original question; that Starbucks had therefore violated the California Labor Code; and that each and every Starbucks job applicant in California since June 2004, perhaps 135,000 persons, was owed $200 in statutory damages regardless of whether they had suffered any harm. Per John Sullivan of the Civil Justice Association of California, the lawyers also took the position that “it didn’t matter that two of the three job applicants who signed on as named plaintiffs testified in court that they read the entire application and knew they didn’t have to mention a marijuana conviction (which neither had anyway!)” The court refused to certify the class and made the following observations (courtesy CJAC blog):

* “There are better ways to filter out impermissible questions on job applications than allowing ‘lawyer bounty hunter’ lawsuits brought on behalf of tens of thousands of unaffected job applicants. Plaintiffs’ strained efforts to use the marijuana reform legislation to recover millions of dollars from Starbucks gives a bizarre new dimension to the every day expressions ‘coffee joint’ and ‘coffee pot.’”… “The civil justice system is not well-served by turning Starbucks into a Daddy Warbucks.”

Ilya Somin at Volokh Conspiracy notes that “the case against the War on Drugs and other ‘morals’ regulations is very similar to the standard conservative critique of economic regulation.” But if a much-needed rollback of morals regulation is made the excuse for an expansion of economic regulation, there may be grounds to wonder whether the goal is truly freedom at all.

Hispanics And Proposition 19

Polls suggest that Hispanics in California are largely opposed to Proposition 19, which would legalize marijuana in that state. This is unfortunate since Hispanics have historically been disproportionate victims of drug prohibition.

Earlier this week, David Kopel wrote a historical analysis in Encyclopedia Britannica of the racist origins of marijuana prohibition, which targeted Mexicans in particular. Back in the 1930’s when the federal government started cracking down on marijuana consumption, officials openly worried about the effect of the drug on “degenerate Spanish-speaking residents … who are low mentally, because of social and racial conditions.”

Some people might claim that even though racial profiling certainly was behind marijuana prohibition, its current enforcement affects all racial groups alike. However, a recent report from the Drug Policy Alliance shows that Hispanics are still overwhelmingly targeted by the police for marijuana offenses. The report states, “From 2006 through 2008, major cities in California arrested and prosecuted Latinos for marijuana possession at double to nearly triple the rate of whites,” even though surveys show that young Hispanics use marijuana at lower rates than young whites. Hispanics are still victims of racial profiling due to marijuana prohibition.

It is not surprising that a socially conservative electorate such as Hispanics would oppose marijuana legalization. Unfortunately, many misconceptions about  drug legalization still abound and are magnified by opponents of the measure. Thus, it is important that Hispanics keep in mind that:

  • Legalization doesn’t mean endorsing or consenting drug consumption.
  • There is an important difference between drug consumption and drug abuse, just as there is a big difference between alcohol consumption and alcoholism.
  • There is also a critical distinction between the negative consequences of drug abuse, such as family disintegration, health problems, loss of workers’ productivity, etc., and the negative consequences of prohibition, like crime, violence, corruption, and high mortality of users due to overdoses, etc. Many people, when arguing against legalization, bring up scenes of violence and crime, when actually these problems would greatly diminish once the illegal black market for drugs is legalized.

Hispanics should also take note of what Colombian president Juan Manuel Santos has said about Proposition 19. The war on drug has been wreaking havoc in Latin America, and it’s increasingly threatening the institutional stability of Mexico and Central America, where many Californian Hispanics come from. Santos has signaled that passing Proposition 19 would force his government to push for a “world-wide discussion” on drug policy. Marijuana legalization in California could thus trigger a global debate on ending the war on drugs, which has cost Latin America dearly for so many years.

Hispanics in California have many reasons to favor the end of marijuana prohibition. They would be doing themselves a big favor if they vote yes next Tuesday.

Marijuana and Freedom

Looking to election day and California’s vote on a marijuana legalization initiative, I have some comments on “the right to control your body” at Britannica Blog:

People have rights that governments may not violate. Thomas Jefferson defined them as the rights of life, liberty, and the pursuit of happiness. When I’m asked what libertarianism is, I often say that it is the idea that adult individuals have the right and the responsibility to make the important decisions about their own lives. More categorically, I would say that people have the right to live their lives in any way they choose so long as they don’t violate the equal rights of others. What right could be more basic, more inherent in human nature, than the right to choose what substances to put in one’s own body? Whether we’re talking about alcohol, tobacco, herbal cures, saturated fat, or marijuana, this is a decision that should be made by the individual, not the government. If government can tell us what we can put into our own bodies, what can it not tell us? What limits on government action are there?

It’s part of a symposium on Proposition 19 and marijuana.

Law Professors Say: Yes on 19

A number of Cato friends – including senior fellow Randy Barnett, former tech policy director Tom W. Bell, David Friedman, Nadine Strossen, and Erik Luna (Lindsay Lohan’s favorite law prof) – have endorsed California’s Proposition 19, which would decriminalize and regulate marijuana. Also among the 65 signers of the petition are some professors with whom we have disagreed, such as Erwin Chemerinsky.

It remains to be seen whether a group of the country’s smartest legal scholars will be any match for the combined weight of the Obama administration, the leading Democratic and Republican candidates for office in California, and almost all the major newspapers in the state. Reason editor Matt Welch, who has been monitoring newspaper editorials, tells me that all of the 21 largest papers that have editorialized on Proposition 19 have opposed it.

That’s about as overwhelming as the editorial opposition to Proposition 13 back in 1978. All major papers except the now-defunct Los Angeles Herald Examiner opposed the granddaddy of tax-cutting initiatives, but it passed with 65 percent of the vote. Perhaps Proposition 19 will be equally successful as a way for voters to thumb their noses as the political establishment.

As Welch says:

I’ll reiterate and update my previous pitch: If Dianne Feinstein, Meg Whitman, Jerry Brown, Barbara Boxer, Dan Lungren, Steve Cooley, Lee Baca, 49 California congresspeople, the California Chamber of Commerce, the Sacramento Bee, the San Francisco Chronicle, and Dean Singleton’s MediaNews empire are against it, the vote-yes commercials write themselves.

Baptists and Pot-Growers

The L.A. Times reports that the city of Oakland has approved an ordinance paving the way for the industrial production of marijuana. There is more to this than simply a victory for liberty in the drug war.  As the story describes and Josh Blackman analyzes, the episode demonstrates “Baptists and Bootleggers”-style public choice economics in action: existing small-time growers are displeased at the competition, barriers to entry are high, the approved pot factories engaged in serious rent-seeking, and the city profits from a new stream of tax revenue.

And so, as liberty expands, government reserves the power to decide who gets to benefit most – after taking a slice for itself off the top.

Barack Obama’s War on ‘Chooming’

My Washington Examiner column this week begins with a look back at the Disco Era:

In his high school yearbook photo, President Barack Obama sports a white leisure suit and a Travolta-esque collar whose wingspan could put a bystander’s eye out. Hey, it was 1979.

Maybe that explains the rest of young Barry’s yearbook page, with its “still life” featuring a pack of rolling papers and a shout-out to the “Choom gang.” (“Chooming” is Hawaiian slang for smoking pot.)

Survey data suggest some 100 million Americans have tried pot, including political elites and drug war supporters Bill Clinton, Al Gore, Newt Gingrich and Sarah Palin. So the point here isn’t to play “gotcha” by calling the president out on some harmless fun three decades ago. It’s to ask why he isn’t doing more to change a policy that treats people engaged in such activities as criminals.

As I note in the column,

in his new National Drug Control Strategy [.pdf], Obama “firmly opposes the legalization of marijuana or any other illicit drug” and boasts of his administration’s aggressive approach to pot eradication. Watch your back, Choom Gang.

This may present Obama with a serious moral dilemma if and when California votes to legalize recreational use of marijuana this November. (More here in this podcast).