The Volokh Conspiracy

A British panel composed of leading members of Parliament and former public officials has concluded that the War on Drugs is a failure and should be abandoned. The panel includes former heads of MI5 (the British domestic intelligence agency) and the Crown Prosecution Service, as well as leading Conservatives, including prominent former members of Margaret Thatcher’s government. Here’s a report by the conservative-leaning Daily Telegraph:

The “war on drugs” has failed and should be abandoned in favour of evidence-based policies that treat addiction as a health problem, according to prominent public figures including former heads of MI5 and the Crown Prosecution Service.

Leading peers – including prominent Tories – say that despite governments worldwide drawing up tough laws against dealers and users over the past 50 years, illegal drugs have become more accessible.

Vast amounts of money have been wasted on unsuccessful crackdowns, while criminals have made fortunes importing drugs into this country.

The increasing use of the most harmful drugs such as heroin has also led to “enormous health problems”, according to the group….

It could lead to calls for the British government to decriminalise drugs, or at least for the police and Crown Prosecution Service not to jail people for possession of small amounts of banned substances.

Their intervention could receive a sympathetic audience in Whitehall, where ministers and civil servants are trying to cut the numbers and cost of the prison population….

The chairman of the new group, Baroness Meacher…. told The Daily Telegraph: “Criminalising drug users has been an expensive catastrophe for individuals and communities….”

Lord Lawson, who was Chancellor of the Exchequer between 1983 and 1989 [under Margaret Thatcher], said: “I have no doubt that the present policy is a disaster….”

In the United States, the opposition of political conservatives is still perhaps the most important obstacle to efforts to cut back on the War on Drugs. Hopefully, this reconsideration by some of their British counterparts will lead more American conservatives follow the example of William F. Buckley and Pat Robertson, both of whom gradually came to realize that the War on Drugs causes enormous harm, and is bad for family values.

I rarely have anything good to say about Pat Robertson. But the devil-monger deserves his due: I have to commend his call for the legalization of marijuana. Moreover, he cites several good reasons for this stance, including the high cost of prohibition, and the fact that imprisonment of small-time drug dealers and users is “ruining young people.” I suspect that Robertson has begun to realize that the War on Drugs is bad for family values. It will take a lot of good works to make up for all the ridiculous and offensive things that Robertson has said over the years. But helping to end the War on Drugs would be a good start.

As the recent defeat of California’s Proposition 19 shows, the opposition of social conservatives is one of the biggest political obstacles to curtailing drug prohibition. Hopefully, more conservatives will come to the same realization as Robertson and, before him, the far more intellectually respectable William F. Buckley.

Pete Guither has a helpful roundup of reactions to the defeat of Proposition 19, which would have legalized marijuana under California state law. Opinion seems to be divided between those like myself and Kevin Drum who believe that support for legalization is rising and those who claim that the cause is probably hopeless because of opposition by parents and the elderly (e.g. Tyler Cowen and Megan McArdle).

I continue to be optimistic about public opinion trends. Gallup poll data shows that support for marijuana legalization has slowly but consistently risen from 12% in 1970 to 46% today. This is exactly the percentage of the vote that Prop 19 got, despite the fact that the elderly (who tend to oppose legalization by large margins) were vastly overrepresented in the 2010 California electorate. This longterm trend strongly supports my theory that disproportionate opposition to Prop 19 among the elderly is a generation effect (caused by ideological differences between younger and older generations) rather than a cohort effect (caused by people becoming more anti-legalization as they get older).

Megan McArdle and Tyler Cowen emphasize the role of parents in opposing marijuana legalization. It is indeed true that parents are more likely to be against legalization than others. But as Bryan Caplan points out, the impact of parenthood is minor compared to that of other factors such as ideology, gender, and religion. Moreover, parents, like other groups, have become less opposed to legalization over time. Today’s parents are more likely to oppose legalization than today’s childless adults. But they are still more supportive than the parents of 10, 20, or 30 years ago.

On balance, therefore, I think the trend towards greater support for marijuana legalization will continue, which cuts against Tyler’s theory that Prop 19 was the “high-water mark” for the legalization cause.

That doesn’t automatically mean that legalization will actually happen. Public opinion is not the only determinant of policy. Interest group influence matters too, and there are some powerful ones opposed to legalization (including the prison industry, various law enforcement agencies, and others). It is also possible that unexpected events will reverse the current trend. Although I don’t consider it to be likely, the next generation could turn out to be more socially conservative than today’s young people. It’s also possible that the trend towards support for legalization will be undercut by some dramatic negative event, such as the death of a prominent celebrity from a marijuana overdose. It would be irrational for voters to change their minds about legalization because of such an incident. But ignorance and irrationality are major factors in public opinion.

Despite these caveats, the data suggest that legalization advocates have more reason for optimism than their opponents. The long-term trends seem to be in their favor.

UPDATE: I previously failed to provide a link to the Gallup polling data on historical trends in public support for marijuana legalization. I have now corrected that mistake.

To me, the most disappointing of the many electoral results this Tuesday was the relatively narrow (54-46) defeat of California Proposition 19, the marijuana legalization initiative that I and and many other VCers endorsed. I’m not disappointed because this proves that law professors have little electoral clout. We knew that already. Rather, the disappointment is because Prop 19 was the best opportunity in many years to deal a serious blow to the War on Drugs. Early polls showed that it had a decent chance to win.

At the same time, it is notable that such a broad legalization measure could get 46% of the vote in the nation’s largest state despite the near-uniform opposition of the political establishment in both parties, ranging from President Obama to Governor Schwarzenegger and many others. Such a result would have been almost unthinkable a decade ago.

The CNN exit polls on Proposition 19 contain lots of interesting data. They reveal that the initiative lost in large part because of its weakness among two groups: the elderly and self-identified “conservatives.”

I. The Age Gap.

People over the age of 65 voted against Prop 19 by a 68-32 margin. Had the electorate been limited to people under the age of 50, Proposition 19 would probably have won, albeit narrowly (by about 51-49). But people over the age of 50 formed a whopping 54% of the California electorate, which reflects the much greater of propensity of the elderly to vote and participate in politics. Using the data collected here, I calculated that people age 50 and above are actually only about 37.5% of the voting-age population in the state.

The interesting question about the age gap on this issue is whether it is a cohort effect or a generational effect. In other words, do people start out favoring legalization in their twenties, but turn against it as they age (a cohort effect)? Or are more recent generations generally more favorable to drug legalization, a difference that persists as they age (a generational effect)? My tentative conclusion is that its probably more of a generational effect. This is not just a difference between the very young and the rest. Rather, each successive age group is much more pro-legalization than those older than them. Even 50-64 year olds were 12 points more favorable to Prop 19 than the over-65s. Moreover, much social science data suggests that political attitudes tend to be fairly consistent with age, solidifying for most people when they are in their twenties. Winston Churchill notwithstanding, if you were a socialist at twenty, that implies a high probability you will still be one at forty. In addition, an important recent study suggests that the elderly actually become more socially liberal as they age, not less so.

II. The War on Drugs and Conservatism.

Self-identified conservatives were even more opposed to Prop 19 than the elderly, with 73% voting against. Unlike the generation gap, legalization advocates cannot expect this problem to get better on its own. I don’t expect conservatives to quickly change their views on this issue. Adherents all political ideologies are slow to change longstanding beliefs, and tend to dismiss opposing evidence out of hand, while overvaluing any evidence that supports their preexisting views.

But I hope conservatives will at least consider the following points. First, the case against the War on Drugs and other “morals” regulations is very similar to the standard conservative critique of economic regulation, a point I made in greater detail in this article and here. Indeed, the War on Drugs is one of our biggest examples of economic regulation, since it bans the sale of a product and creates a vast illegal market that stimulates violence and organized crime. It is in fact quite similar to left-wing proposals to ban products such as cigarettes or fatty foods, both of which pose greater health risks than many currently illegal drugs do. Ironically, Proposition 19 was opposed by 67% of those voters who said in the same survey that government is currently doing “too much,” probably because of the large overlap between this group and ideological conservatives.

Second, the War on Drugs severely hampers two cherished conservative goals: winning the War on Terror and promoting family values. Even if you think that drug prohibition is on balance a worthy objective, is it really worth the price of greatly exacerbating the terrorist threat and undercutting the ability of poor African-Americans to form intact families? Few can do so so long as a very high percentage of poor black males are either in prison or cycling in and out of custody, in large part as a result of the War on Drugs.

Every ideology sometimes faces difficult tradeoffs. The War on Drugs poses several particularly important ones for conservatives. Over time, I hope that more conservatives will come to agree with William F. Buckley’s conclusion that “it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana.”

My short essay for the Encyclopedia Britannica blog looks at the racist origins of marijuana prohibition. The essay is part of a two-day series of pro/con articles related to California’s proposition 19.

This Wednesday, I will be speaking at Michigan State University Law School and the Thomas M. Cooley Law School in Lansing, Michigan. Both events sponsored by the local student Federalist Society chapters. In both cases, the topic will be Federalism and the War on Drugs. The talk at MSU will be at noon, and I will be debating Michigan state judge Landis Lain. I will speak at Cooley at 3:30 PM, this time flying solo.

Topics covered will probably include California Proposition 19 and the ways in which the growth of the War on Drugs has undermined constitutional limits on federal power, such as in the case of Gonzales v. Raich. In my view, Proposition 19 and other recent political developments represent the best opportunity in many years to impose serious constraints on the War on Drugs. But state governments will have to take the initiative first, just as they did in the years leading up to the end of Prohibition in 1933. Certainly, this is a very timely topic.

The Foundation for Individual Rights in Education has the details. The university admits that it is excluding the group from generally available student group registration benefits, because the university disapproves of the group’s message:

Considerable research indicates the use of cannabis does not contribute to healthy decision-making, particularly in college-age populations. Given the above, the University determined that recognizing the “Students for Cannabis Policy Reform Group” as a DePaul student organization would not be congruent with our institutional goals regarding the health and well-being of our students.

I rather doubt that recognizing such a group would materially affect the level of marijuana use by DePaul students. But denying recognition would affect the amount of debate about marijuana policy that takes place. Sounds like unhealthy decision-making on the university’s part to me.

DePaul is a private university, so it’s free to engage in unhealthy decision-making. But excluding the expression of some views from the very broadly open student group recognition program, it seems to me, is the gateway drug to broader restrictions as well, restrictions that are even more dangerous to the culture of debate and discussion that universities, private and public, ought to be promoting. DePaul itself has officially stated, in its Guiding Principles on Speech and Expression that it is “committed to fostering a community that welcomes open discourse.” And while that document seems to suggest that DePaul’s Catholic mission may support some restrictions aimed at protecting “dignity,” “respect,” and “civility,” I don’t see anything in that statement that justifies discrimination against student speech that promotes legalization of marijuana. So I’m glad that FIRE is taking DePaul to task for its position.

Finally, DePaul’s letter suggests that denying recognition to the student group would still leave open “myriad opportunities for students to gather together and express their views to the larger community regarding the use of and/or legalization of cannabis.” But if indeed the group will be able to speak as effectively without the benefits of recognition, then I don’t see how the university’s action will further its stated goals. And if the university’s action will somehow diminish the amount of speech that might promote “[un]healthy decision-making,” then that must mean that the university hopes the group will not speak as effectively without the benefits of recognition.

UPDATE: I originally characterized DePaul’s actions, in the second sentence of the paragraph that starts with “DePaul is a private university,” as “banning the expression of some views.” This was intended as shorthand for the exclusion of the views from the benefit program; but, as commenter neurodoc pointed out, that is not accurate, as the last paragraph of this post makes clear. I’ve therefore corrected the post.

The Yes on 19 website has posted a petition by law professors in support of California proposition 19, which would decriminalize marijuana in that state. Among the signers are six of the Volokh Conspirators – Jonathan Adler, Randy Barnett, David Bernstein, David Post, Sasha Volokh, and myself. There are also many prominent non-VC signers, including Erwin Chemerinsky, Alan Dershowitz, Paul Butler, and David Friedman (well-known law and economics scholar and son of Milton):

As law professors at many law schools who focus on various areas of legal scholarship, we write this open letter to encourage a wholesale rethinking of marijuana policy in this country, and to endorse the Tax and Control Cannabis 2010 initiative—Proposition 19—that will be voted on in November in California.

For decades, our country has pursued a wasteful and ineffective policy of marijuana prohibition. As with alcohol prohibition, this approach has failed to control marijuana, and left its trade in the hands of an unregulated and increasingly violent black market. At the same time, marijuana prohibition has clogged California’s courts alone with tens of thousands of non-violent marijuana offenders each year. Yet marijuana remains as available as ever, with teens reporting that it is easier for them to buy than alcohol across the country.

Proposition 19 would remove criminal penalties for private use and cultivation of small amounts of marijuana by adults and allow California localities to adopt—if they choose—measures to regulate commerce in marijuana. Passage of Proposition 19 would be an important next step toward adopting an approach more grounded in reason, for California and beyond.

Our communities would be better served if the criminal justice resources we currently spend to investigate, arrest, and prosecute people for marijuana offenses each year were redirected toward addressing unsolved violent crimes. In short, the present policy is causing more harm than good, and is eroding respect for the law…..

This country has an example of a path from prohibition. Alcohol is subject to a regulatory framework that is far safer in every respect than the days of Al Capone. Just like the State of New York did when it rolled back Prohibition 10 years before the nation as a whole, California should show leadership and restore respect for the law by enacting the Tax and Control Cannabis 2010 initiative this November.

Unfortunately, lifting the state ban on marijuana possession will not fully legalize marijuana in California. The federal ban that the Supreme Court upheld in Gonzales v. Raich will remain. So far, the Obama Administration has not kept the president’s campaign promise to stop federal raids on purveyors of medical marijuana in states where it is legal, and the administration almost certainly would not cooperate with the much broader legalization envisioned by Proposition 19.

On the other hand, federal enforcement resources are limited. So Proposition 19 will greatly reduce the incidence of marijuana prosecutions in California, even if the drug remains theoretically illegal there. Perhaps more importantly, passage of Prop 19 would be a major political setback for drug prohibition. A victorious Prop 19 would likely be imitated in other states with referendum initiative processes. That in turn would put the federal War on Drugs under increasing stress. If several large states withdraw state resources from marijuana enforcement, the feds would either have to massively increase their own enforcement efforts or consider giving up the fight. At a time of increasing budgetary problems, the latter option might be more likely.

The California Beer and Beverage Distributors is opposing a California ballot proposition that would legalize marijuana within the state.  No surprise there.  Some of the CBBD’s members may fear legal marijuana would compete with beer.  Interestingly, the CBBD claims it is not opposed to legalization in principle, just the poor wording of this specific proposal.  Josh Wright doesn’t buy it.  Neither should you.

John McWhorter has a good column at Root urging African-Americans to make a priority of opposing the War on Drugs {[HT: here]:

The Reclaim the Dream March “recaptured the flavor” of the March on Washington. But it isn’t an accident that this brings to mind popping an old piece of gum from the underside of a desk into your mouth to see how much “flavor” might still be left in it.

The 1963 March on Washington, of course, was a signature and significant event. The question, however, is what the value is of trying to do it again. There comes a point when these marches are gestures rather than actions. And that point has come….

Every time I see one of these marches or forums covered as significant, what occurs to me is that there is one thing we should all be focused on instead. It is, of all things, the War on Drugs. The most meaningfully pro-black policy today would be a white-hot commitment to ending its idiocy.

The massive number of black men in prison, described on The Root site here, stands as a rebuke to all calls to “get past racism,” exhibit initiative or stress optimism. And the primary reason for this massive number of black men in jail is the War on Drugs.

The War on Drugs destroys black families. It has become a norm for black children to grow up with their fathers in prison and barely knowing them….

In this post, I discussed in greater detail how the War on Drugs undermines family values in poor black communities. As I noted there, some 60% of all incarcerated nonviolent drug offenders are black males, hundreds of thousands in all. This figure is not due solely or even primarily to racism. But even if conducted with the best of intentions, the War on Drugs has had a devastating impact on blacks even more than on other groups.

Back in October, the Obama Administration Justice Department issued a memorandum that seemed to constrain federal enforcement of laws against marijuana possession in states where medical marijuana is permitted under state law. I welcomed the memo as a small sign of progress, but pointed out that it doesn’t really constrain federal prosecutions in any meaningful way. Federal prosecutors could still undertake virtually any marijuana prosecution they wanted without violating the memorandum’s guidelines:

The key sticking point is that the memo only applies to uses of medical marijuana that are in “clear and unambiguous compliance with state law”….

Given these disagreements [ over the interpretation of state law] at the state and local level, it will usually be difficult to prove that any given medical marijuana user is in “clear and unambiguous compliance state law,” as opposed to merely arguable or probable compliance with it.

It’s also worth noting that the memo doesn’t actually tell prosecutors to forego pursuing cases against even those distributors and users who are in “clear and unambiguous compliance.” It merely says that “as a general matter,” such prosecutions are “unlikely to be an efficient use of limited federal resources.” A prosecutor who thinks that a given case is an exception to this generalization or believes that his office has some excess or underutilized “resources” might still pursue such cases. The memo also outlines numerous situations where prosecution of medical marijuana distributors and users is still encouraged….

This recent district court decision upholding the prosecution of a medical marijuana distributor in California (a state which has legalized medical marijuana under state law), reaches much the same conclusions about the meaning of the memo as I did. Like me, the judge noted the very loose nature of the memo’s restrictions. He also made this relevant point:

Even if Defendant’s prosecution were contrary to the guidance set forth in the Memorandum, dismissal of the Indictment would not be warranted. Defendant has not pointed to any authority for dismissing an indictment because it is contrary to internal Department of Justice guidelines…. Indeed, the Memorandum specifies that it is not intended “to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter …. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.”

Despite campaign rhetoric to the contrary, the Obama Administration has yet to make any genuine progress against the infringements on civil liberties and constitutional federalism created by the War on Drugs. If the president really wanted to stop federal medical marijuana prosecutions in states where medical marijuana is legal under state law, he could have issued a clear and unequivocal executive order forbidding federal prosecutors from doing so, or instructed the attorney general to issue a firm policy guidance to that effect. Unfortunately, he chose not to do so.

In fairness, the preceding Bush Administration was probably even worse on this front. That, however, is not much consolation to me or other critics of the War on Drugs.

Many doctors and patients believe there are many legitimate medical uses for marijuana, yet there is relatively little serious scientific evidence to support such claims, particularly as concerns smoking it.  One reason for this could be that the federal government makes it so difficult — indeed, virtually impossible — to conduct scientific research on marijuana’s potential medical benefits, as today’s NYT reports.

Lyle E. Craker, a professor of plant sciences at the University of Massachusetts, has been trying to get permission from federal authorities for nearly nine years to grow a supply of the plant that he could study and provide to researchers for clinical trials.

But the Drug Enforcement Administration — more concerned about abuse than potential benefits — has refused, even after the agency’s own administrative law judge ruled in 2007 that Dr. Craker’s application should be approved, and even after Attorney General Eric H. Holder Jr. in March ended the Bush administration’s policy of raiding dispensers of medical marijuana that comply with state laws.

“All I want to be able to do is grow it so that it can be tested,” Dr. Craker said in comments echoed by other researchers.

Marijuana is the only major drug for which the federal government controls the only legal research supply and for which the government requires a special scientific review.

Despite these limitations, fourteen states have legalized the medicinal use of marijuana, most recently New Jersey. Some are even beginning to debate going further and decriminalizing marijuana altogether.  States’ fiscal woes are only likely to reinforce this trend as legislators consider the potential revenue stream taxing legal marijuana could provide.

The WSJ editorial page was pathologically hostile to any discussion of drug legalization under the late Bob Bartley.  Under Paul Gigot, however, the Journal has broadened its range of published opinions and has even begun to publish the occasional pro-decriminalization op-ed piece.  The most recent was this piece last week by a New Jersey psychiatrist.  Could a call for decriminalization from within GOP ranks be far behind?

The AP reports on an increase in efforts to decriminalize marijuana possession or use at the state level.

Legalization bills were introduced in California and Massachusetts earlier this year, and this month, New Hampshire and Washington state prefiled bills in advance of their legislative sessions that begin in January. Marijuana is illegal under federal law, but guidelines have been loosened on federal prosecution of medical marijuana under the Obama administration.

Drug legalization proponent Ethan Nadelman’s thinks this shows “we are close to the tipping point” for marijuana legalization.  That seems like an overly optimistic assessment to me.    States cannot truly decriminalize marijuana so long as federal prohibition remains in place, and politicians are sufficiently risk averse that I doubt we will see any significant moves on the federal front in the near future.

I still think there are two exogenous factors that work in legalization’s favor.  First, the polling data I’ve seen suggests younger voters are much less supportive of marijuana prohibition than older voters.  Insofar as this represents a generational difference, this would suggest that opposition to marijuana prohibition would rise over time.  Second, as the story notes, many states are in dire need of new revenue sources.  This could make the legalization, and taxation, of marijuana more attractive to politicians.

According to Law Enforcement Against Prohibition, the FY 2010 Consolidated Appropriations Act will end restrcitions on the District of Columbia’s ability to implement the medical marijuana initiative passed by District voters several years back.  It will be interesting to see how the Justice Department responds.

The Washington Post reports on growing support for marijuana legalization.

The shift is widely described as generational. A Gallup poll in October found 44 percent of Americans favor full legalization of marijuana — a rise of 13 points since 2000. Gallup said that if public support continues growing at a rate of 1 to 2 percent per year, “the majority of Americans could favor legalization of the drug in as little as four years.”A 53 percent majority already does so in the West, according to the survey. The finding heartens advocates collecting signatures to put the question of legalization before California voters in a 2010 initiative.

The LA Times reports:

The American Medical Assn. on Tuesday urged the federal government to reconsider its classification of marijuana as a dangerous drug with no accepted medical use, a significant shift that puts the prestigious group behind calls for more research. . . .

In changing its policy, the group said its goal was to clear the way to conduct clinical research, develop cannabis-based medicines and devise alternative ways to deliver the drug.

“Despite more than 30 years of clinical research, only a small number of randomized, controlled trials have been conducted on smoked cannabis,” said Dr. Edward Langston, an AMA board member, noting that the limited number of studies was “insufficient to satisfy the current standards for a prescription drug product.”

This shift could be quite significant, as one major obstacle to medical marijuana has been the federal classification as a Schedule I controlled substance and the consequent limitations on medical research.

The Wall Street Journal has an editorial urging the Supreme Court to rule in favor of the property owners in Alvarez v. Smith, an important property rights case that I have been trying to draw attention to for a long time (see my recent Findlaw column on it and previous posts on the subject here and here):

With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture…

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor’s office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern….

We’re all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens.

The points emphasized in the WSJ editorial are similar to those I and others have made previously. However, the WSJ piece is still noteworthy because it shows that at least some of the national media have finally begun to give the case the attention it warrants. It’s also telling that even the generally pro-law enforcement WSJ editorial page isn’t willing to endorse the government’s position in this case.

Many critics of the War on Drugs, myself included, were happy to see the Obama adminstration’s new memo urging federal prosecutors not to pursue cases against medical marijuana users in states where such use is legal under state law. The administration’s policy could potentially offset some of the negative effects of the Supreme Court’s 2005 decision in Gonzales v. Raich, which held that Congress’ power to regulate interstate commerce gave it the authority to forbid the possession of medical marijuana even in cases where the marijuana in question had never been sold in any market or left the state where it was grown (I criticized Raich in this article).

However, as Jacob Sullum points out, the policy may not make much difference in practice, especially in California (the state with by far the biggest concentration of medical marijuana cases). The key sticking point is that the memo only applies to uses of medical marijuana that are in “clear and unambiguous compliance with state law”:

During his presidential campaign, Barack Obama repeatedly promised to stop federal interference with state laws that allow the medical use of marijuana. On Monday the Justice Department seemed to deliver on that promise with a memo telling U.S. attorneys to avoid prosecuting people who use or provide medical marijuana in compliance with state law.

The new policy sounds a lot better than the Bush administration’s refusal to tolerate any deviation from federal law in this area. But because of disagreements about what compliance with state law requires, it may not make much difference in practice.

This week’s memo . . . tells federal prosecutors in the 14 states that recognize cannabis as a medicine they “should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

In California especially, that phrasing leaves a lot of wiggle room for federal meddling. Last fall the California Supreme Court rejected the idea that medical marijuana suppliers are legal as long as their customers designate them as “primary caregivers.” Patients who are not up to growing marijuana on their own can still organize as “collectives” or “cooperatives,” but local officials disagree with state officials and each other about what that means. Los Angeles County District Attorney Steve Cooley, for example, maintains that state law does not permit over-the-counter sales, which would make virtually all of the 800 or so medical marijuana dispensaries in L.A. illegal.

Given these disagreements at the state and local level, it will usually be difficult to prove that any given medical marijuana user is in “clear and unambiguous compliance state law,” as opposed to merely arguable or probable compliance with it.

It’s also worth noting that the memo doesn’t actually tell prosecutors to forego pursuing cases against even those distributors and users who are in “clear and unambiguous compliance.” It merely says that “as a general matter,” such prosecutions are “unlikely to be an efficient use of limited federal resources.” A prosecutor who thinks that a given case is an exception to this generalization or believes that his office has some excess or underutilized “resources” might still pursue such cases. The memo also outlines numerous situations where prosecution of medical marijuana distributors and users is still encouraged:

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

• unlawful possession or unlawful use of firearms;
• violence;
• sales to minors;
• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
• amounts of marijuana inconsistent with purported compliance with state or local law;
• illegal possession or sale of other controlled substances; or
• ties to other criminal enterprises.

Several of these – especially that dealing with “financial and marketing activites inconsistent with the terms, conditions, or purposes of state law” are extremely broad. Almost any paid transaction between a medical marijuana user or a dealer might be described as one involving “financial gains” or “excessive amounts of cash” inconsistent with “purported compliance with state or local law.” The memo gives no guidelines for determining how much money is “excessive,” nor does it specify how to tell the difference between permissible marketing activites and forbidden ones. Given that compliance with state law much be “clear and unambiguous,” it would not be hard for a prosecutor to go after virtually any medical marijuana distributor.

The memo is still a step forward from the Bush Administration’s aggressive pursuit of medical marijuana cases; for example, it might at least give cover to US attorneys who are already inclined not to pursue these cases, but were afraid to follow their inclinations previously. But it falls a long way short of actually ending federal prosecution of medical marijuana cases, even in states where medical marijuana use is permitted by state law.

The AP reports that the Justice Department will issue a memo formally establishing a new policy regarding the federal prosecution of marijuana possession and sale in states that have decriminalized medical marijuana.

The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new policy guidelines to be sent to federal prosecutors Monday.Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state laws. . . .

A three-page memo spelling out the policy is expected to be sent Monday to federal prosecutors in the 14 states, and also to top officials at the FBI and the Drug Enforcement Administration.

The memo, the officials said, emphasizes that prosecutors have wide discretion in choosing which cases to pursue, and says it is not a good use of federal manpower to prosecute those who are without a doubt in compliance with state law. . . .

At the same time, the officials said, the government will still prosecute those who use medical marijuana as a cover for other illegal activity. The memo particularly warns that some suspects may hide old-fashioned drug dealing or other crimes behind a medical marijuana business.

In particular, the memo urges prosecutors to pursue marijuana cases which involve violence, the illegal use of firearms, selling pot to minors, money laundering or other crimes.

As I’ve noted on The Corner, assuming this is an accurate account of the guidelines, this is a positive step toward a more rational drug control policy and greater respect for state-level policymaking.

The Justice Department has to set prosecutorial priorities, as there are more federal crimes on the books than federal prosecutors can ever hope to prosecute.  The aim should be to focus federal resources in those areas where there is a distinct federal interest, or where the federal government has a comparative advantage of state and local law enforcement.  Where federal law conflicts with state law, prohibiting activities state laws allowed, federal efforts should still focus on those instances of alleged lawbreaking where there is a distinct federal interest, including spillover effects on neighboring jurisdictions.

The federal government has a legitimate interest in controlling interstate drug trafficking, but no particular interest in prosecuting those who seek to provide medical marijuana to local residents pursuant to state law.  So it only makes sense for the Justice Department to tell federal prosecutors to focus their efforts on those who are not in compliance with state law, such as those who use medical marijuana distribution as a cover for other illegal activities, interstate drug trafficking in particular.  California should be free to set its own marijuana policy, but the federal government retains an interest in preventing California’s choice from adversely affecting neighboring states.

Ideally, the federal government would treat marijuana like alcohol, retaining a federal role in controlling illegal interstate trafficking but leaving each state entirely free to set its own marijuana policy, whether it be prohibition, decriminalization, or somewhere in between.  Fourteen states have already decriminalized medical marijuana to some degree.  Were the federal government to allow states even greater autonomy, I suspect more would follow. I don’t expect the Obama Administration to promote such legislation, but it would represent the proper approach to marijuana use, medical and otherwise.  Nonetheless, the new guidelines appear to be a step in the right direction.

UPDATE: The memo is now available on the DOJ site in HTML and PDF.

A few days ago, Justice Antonin Scalia ruffled the feathers of the legal profession by suggesting that we are “wasting” too many of our “best minds” on law:

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

Scalia’s concern is a slight variation on the usual complaint that there are too many lawyers. But are there? The claim that there are too many lawyers is in serious tension with the other standard indictment of the legal profession: that lawyers cost too much. If there really were too many lawyers, one would expect their salaries to be relatively low.

In my view, Scalia is half-right. We are indeed devoting more of our “best minds” to law than we ideally should; perhaps more of our merely average minds too. But the high salaries of lawyers suggest that there is a genuine demand out there for all that lawyering. Quite simply, we need a lot of lawyers because we have a lot of laws. In the criminal law field, the United States imprisons far more people than any other industrialized nation, in large part because we punish so many nonviolent offenders through our massive War on Drugs. The War on Drugs is, among other things, a full-employment program for criminal lawyers. In civil law, we have a massive tort law suit system and hundreds of state and federal regulatory agencies that issue mindbogglingly complex regulations that require interpretation by experts if you want to avoid costly liability. And of course we also have an extremely complex tax system that requires many people to hire tax lawyers if they want to keep the IRS off their backs.

As long as we have such a large and complex legal system with so many laws, we are likely to need a lot of lawyers too – including many of our “best minds.” To be sure, some of that complexity is the result of lobbying by lawyers themselves. The ABA and state bar organizations often oppose efforts to simplify the legal system or cut back on the size of government. But lobbying by lawyers is far from the main culprit responsible for our overgrown legal system. Many other interest groups are responsible too, as is the general public that supported many of the laws that created the need for large numbers of lawyers. The best way to safely reduce the number of lawyers is too cut back on the number of laws.