by Lee, 01/12/2013, 6:30 AM

Andrew Sullivan has been dutifully debunking some of the terrible arguments in defense of marijuana prohibition. Conor Friedersdorf has been doing the same. The discussion in those posts centers around a defense of paternalism being made by those in favor of keeping marijuana markets underground. Mark Kleiman here makes a partial defense of those arguments:

Sullivan is horrified by the frank paternalism involved, but horror isn’t a criticism, and he’s wrong to attribute to Frum and Dreher the notion that “all American adults are basically children that we have to protect from their own choices.” What Frum and Dreher are saying is that some Americans – many of them minors – are indeed in need of protection from their own bad choices. (Dreher is especially clear-minded in pointing out that the need for paternalistic protection varies not just from person to person but from choice to choice: lots of people are capable of managing their diets but not their retirement financial planning. I, for example, want paternalistic protection against being sold adulterated drugs or contaminated food.) There’s no logical flaw in the idea that more-liberal policies in a variety of domains might serve the interests of those better-placed to make good choices at the expense of those worse-placed.

There’s an important distinction that’s not being made here. There’s a difference between an uninformed choice, where a buyer is unaware of the true consequences of their decision-making, and a potentially “bad” choice, where people are fully aware of the consequences of their decision-making and are willing to accept the risks. In the former, we should certainly have laws that protect consumers from having to make uninformed decisions where the seller has an advantage that they can exploit. That’s true in our financial markets and in various other places. But it’s not true for adults buying marijuana.

When adults buy marijuana, they’re not being conned into buying a product they don’t understand. For minors, you can more easily make that argument, and that’s why the folks pushing for the end of marijuana prohibition support age limits on its purchase in a regulated market. Like Kleiman, I’d love to see “paternalistic” laws against being sold adulterated marijuana, but those laws are only possible in a legal, regulated marketplace. But identifying any adult purchase of marijuana as a “bad” choice that needs to be prevented is a far different level of paternalism than trying to keep people from being suckered into a bad mortgage or buying contaminated fruit.

The second half of Kleiman’s post tries to make an interesting parallel between prohibition and a lack of prohibition, which was summarized in this tweet:

Both Pete Guither and I found this to be odd, but perhaps for slightly different reasons. I find this to be a very uneven parallel between prohibition and regulated markets. Even under prohibition, the risks of drug abuse still exist, and in some ways they can be exacerbated. Yet under a regulated market, drug dealing is called “commerce”. There aren’t people being tempted into a potentially lucrative (although usually not) life of illegally producing or selling those drugs. The tradeoffs are far from equal in their magnitude.

To expand on that a bit, I certainly know some folks here in Washington who have more interest in trying marijuana now that it’s legal. Taking away that stigma of illegality will certainly expand the amount of folks who are willing to try it. But that subset of the population tends to be older, and far less likely to embark on a lifetime of vaporizer sessions after breakfast. So Kleiman is correct to note that drug use could go up, but on the other side of that, regulated markets that limit sales only to adults will put up a barrier at the other end of the age scale.

Most people accept that lots of young people will still be able to get access to marijuana through friends or with fake ID’s (just as with alcohol), but it’s an additional barrier that didn’t exist before. And it’s being put where it can do the most good, as numerous studies have shown that the earlier in life a marijuana habit begins, the more likely it is to become a more serious problem. Even if that trade-off yields higher overall use rates, it could potentially still be better overall from a drug abuse standpoint.

And thankfully, we already have the experience of Holland over the past several decades to know that an open marketplace for marijuana doesn’t lead to large increases in use. Compared to neighboring countries, the Dutch don’t use marijuana at a higher rate, despite the temptation of coffeeshops where it can be freely purchased.

The main point here is that the first part of Kleiman’s trade-off is largely negligible in its magnitude (and possibly non-existent). Yet the second part is enormous, when you factor in the overall societal costs of funneling tens of billions of dollars into a lucrative black market, tempting those with few options into risking arrest to get some of that money. Kleiman suggests that in poorer neighborhoods, this trade-off might still be close. I find that to be laughable, and more and more people in poor and minority communities are demanding an end to the drug war for the very same reason.

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