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July 5, 2019 - Ron Paul Liberty Report
31:30
'The Collapse of Marijuana Prohibition and the Future Drug Policy Reform'

Reason Foundation's Jacob Sullum speaks at the Ron Paul Institute's recent conference on the drug war. The prohibition house of cards is about to fall. Don't miss RPI's next conference in August in Washington DC. Info and tickets: RonPaulInstitute.org/conference

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Time Text
Paul's Mention of Decriminalization 00:11:47
So I'm going to talk about a little bit of the stuff that Paul was talking about in terms of the roots of marijuana prohibition, but with an eye toward what it can teach us about the future of drug policy reform.
So Paul talked about this period.
Didn't start with Harry Enslinger.
It started at the state level with a lot of people believing crazy things about what marijuana did to you.
drove you crazy, it made you take an axe and murder your family, made you rape people.
And what's interesting about it, and also of course it particularly affected these vulnerable groups that are sort of antisocial anyway, right?
Racial minorities, outsiders, foreigners.
What's interesting about this is that cannabis actually had a history, as Paul mentioned, I think, in passing, as a patent medicine in the United States during the 19th century.
So you had white, you know, respectable people consuming cannabis for a variety of different ailments through the 19th century into the early 20th century.
So they knew this drug.
And they knew it didn't drive them crazy and made them kill people.
But they still believe that.
And what you see, if you look at the press coverage in the New York Times, for example, is they did not understand that this thing called marijuana coming out of Mexico, this weird exotic drug, was the same thing as what they called cannabis or Indian hemp.
You read the New York Times early on, you'll see when they're talking about how horrible this drug is and it drives you crazy and makes you kill people, that's marijuana.
And to the extent that they mentioned the patent medicine, that is Indian hemp or cannabis.
And it's only after years that they slowly start to realize, oh, this is the same thing, right?
So what that illustrates is that when a drug is seen as foreign, alien, exotic, it is much easier to believe these scary stories about it when it's other people using it, not your people, not your group, but other groups.
And so you might get the sense that there is this sort of nationwide panic about marijuana at this time, where you have all the states, pretty much all the states banning it at the point where the federal government finally got into the act and passed the Marijuana Tax Act.
So you might think everybody's up in arms about it.
This is a terrible, horrible menace to the country, and we need to ban it.
But if you look at what was said on the floor of the House of Representatives right before they passed the Marijuana Tax Act, you have the House Minority Leader, who's a Republican, Bertrand Snell, saying, I don't know if we should take up this bill.
It's getting kind of late in the evening, and I don't even know what this bill is about.
And then the majority leader, Sam Radrin, the Democrat, he's going to educate him.
So he says, the bill has something to do with something that is called marijuana.
I believe it is a narcotic of some kind.
And these are the leaders of the House of Representatives.
So it's not even so much that everyone was up in arms about it and everybody was upset about it.
Some people just had no idea.
And that's sort of the ignorance about it, you know, that's a precondition for believing these wild stories.
And that's why getting away from that is important if you want to start to take steps toward reform.
All right, so Paul mentioned some of these stages.
What we get when you see marijuana prohibition starting to collapse is you have, first of all, de-felonization, which is important.
This is even before, or simultaneous with decriminalization, you have, well, maybe this should still be illegal and should still be a crime, but it's not a felony, right?
It's not treated as seriously as some other crimes.
In 2001, Nevada became the last state to change simple possession of marijuana from a felony to a misdemeanor.
And so every state has done that at this point.
And then, also, as Paul mentioned, you have decriminalization.
I'm going to use that fairly loosely.
Generally speaking, when you're talking about decriminalization, you have in mind a situation where possession of small amounts of marijuana for personal use is treated as a civil offense, and you've got a fine, it's something like a traffic violation.
But also, if you speak, look at it a little bit more broadly and talk about a low-level criminal offense where you're not going to get arrested and you go to jail.
Which is really, there is early, fairly early on, there is support at high levels.
Paul mentioned the Schaefer Commission, also Jimmy Carter came out in favor of decriminalization.
The idea that I don't know if marijuana should be legal, but it's not the sort of thing that you should go to jail for using it.
That attracted majority support before legalization did.
And at this point, about half, it's true in about half the states, North Dakota just came online this not something you go to jail for.
A lot of them have actually decriminalized.
Some of them have just made it a low-level misdemeanor.
33 states at this point have legalized marijuana for medical use.
And we have 10 states in DC that have legalized it for recreational use.
I like the icon there.
It's the best one I can find.
So, what does it mean when people support these policies?
Because that's what we're trying to understand when we're talking about the future of drug policy reforms.
Well, with defelinization, they're saying, I don't know if I approve of this, but it's not like mugging somebody, right?
Not as bad as that.
With decriminalization, you're saying this isn't the sort of thing people should get arrested and go to jail for.
It's not only not like mugging, but I don't even think it should be treated as a crime.
And then, you know, an obvious implication of that, well, we'll get to that in a second.
Medical legalization, marijuana has benefits that outweighs risks.
That's the judgment you're making when you approve that policy.
And what's interesting about that is not just the benefit side of it, that yes, marijuana is useful for all these various symptoms associated with different disorders, but also you have to look at the risk side.
We're going to have people who are often quite ill, quite frail, right, taking this drug.
What are the potential dangers?
And that's what the National Academy of Sciences looked at twice.
And they found there are, not that it's risk-free, but whatever risks there are compare quite favorably to most pharmaceuticals.
So in the process of exploring medical legalization, you're also looking at the risks of marijuana and putting those into perspective.
And then recreational legalization, you finally are saying, well, if you don't arrest people for using marijuana, why should we arrest people just for helping them use marijuana?
I mean, usually aiding and abetting a crime is not considered to be worse than the crime itself, right?
So it's sort of been, I mean, this took a long time to kick in because you had support for decriminalization going back to the 70s, but it's only relatively recently that people start to take this second step and say, well, if that's not a good using marijuana, it's not a crime.
Why should just helping people use marijuana by giving them, you know, supplying them with marijuana, why should that be a crime?
Okay, so Paul showed you this chart.
What you see is that support for legalizing marijuana goes up, up, down a bit.
It dips during the Reagan administration and kind of stagnates.
And then it starts going up again in the 90s, and it's gone up more or less steadily since then, and especially sharply in recent years.
And we're at the point where, according to Gallock, two-thirds of Americans support legalization.
And now, at the same time, you have that upward trend in support for legalization.
You also have this upward trend in the percentage of Americans who say that they or admit that they've used marijuana.
According to the Gallup poll, 45%, this is 18 and older, I think, admitted using marijuana in the most recent poll.
That's strikingly similar to what is found in the National Survey on Drug Use and Health.
Both of these numbers are probably underestimates.
Scholars who look at this issue think it probably that number underestimates the number of marijuana users by about 20%.
So the true figure is probably a majority.
It's probably about somewhere around 54% or 55%, which is consistent with the poll at the fall site.
So, well, what that means is that not only might you have first-hand experience with marijuana growing up or in high school or college or whatever, but even if you didn't, you in all likelihood know people who did.
So you know that typically it does not ruin your life unless you happen to get arrested, right?
You might even end up being president, which is not necessarily a good thing, but you can make it that far.
So, what does it mean that most Americans support marijuana legalization?
The first thing is the thing I would like it to mean, but I don't think it means, which is most Americans believe people should be able to control their own bodies and decide what goes into them.
I don't think most Americans believe that.
More likely, most Americans believe the costs of prohibiting marijuana outweigh the benefits.
That seems plausible.
I think that in this case, they decided that.
And probably this third one is also true.
Most Americans believe marijuana is not that big a deal, no worse than alcohol, maybe not as bad as alcohol.
In several important respects, it's not as dangerous as alcohol.
So before we talk about where we move after marijuana legalization, there is a lot of cleaning up to be done.
You have this conflict between state and federal law.
Paul mentioned some of the bills ended up addressing that.
So he mentioned, you know, criminal liability is obvious.
You are involved in a state licensed business that either grows or sells marijuana.
You are committing federal felonies every day.
Forfeiture is another threat.
They can take your property, they take your landlord's property, take the property of everyone associated with you.
You've got the banking issue that Paul mentioned.
Banks are understandably leery of dealing with people who are illegal drug dealers under federal law.
Taxes, I don't think Paul mentioned the tax thing.
That's insane.
There's a specific tax provision that says if you have one of these state-licensed marijuana business, you cannot deduct your business expenses.
Now, you do owe taxes because you owe taxes even on illegal incomes, as Al Capone found out, right?
So don't not pay your taxes.
That would be a huge mistake.
You have to pay your tax, but when you do it, you can't deduct your business expenses.
And to make it even more insane, that means you can't deduct payroll, can't deduct rent for your storefront, you can't deduct the price of the coffee that you buy to put in your break room.
But the one thing you can deduct is the cost of the marijuana itself, because that's the cost of goods sold, which if you've ever filled out a Schedule C, you know that that's a different category.
And the tax courts have ruled that cost of goods sold, that you can deduct, but all the other stuff that any ordinary business would encounter, you have to count that as part of your taxable income.
That's the U. All right, so obviously we have legalization in 40 other states to go, and some of them still have the initiative process to do that, which seems to be a more promising approach.
Otherwise, it'll have to be done through legislation from state legislators.
Sentencing Reform Addressed 00:03:42
Release of current marijuana prisoners, right?
That seems like an obvious sort of thing you would do.
And at the time that alcohol was legalized, there were actually people serving time for alcohol offenses who were released.
That seems obvious.
This is not a crime anymore.
We think it never should have been treated as a crime, right?
Expungement of marijuana records.
This is something that has only been addressed as an afterthought in most cases.
So, California was the first state where, in the process of legalizing, they also said we want there to be a way of dealing with people who have these records, which make it difficult to get a job, make it difficult to find a place to live, make it difficult to get a loan.
You know, I interviewed people for a story in Reason about expungement, and they would go through 10 to 20 landlords before they could find an apartment because you have to admit your criminal record.
And they're very leery of that.
Same thing with jobs.
You go through multiple applications before you can get a job.
So that's an important thing, right?
I mean, these people were screwed over.
You're talking about, I think it's like 20 million marijuana arrests just in the last few decades.
And these effects continue for decades or for your whole life.
That needs to be addressed.
Legal standard for stone driving using something analogous to what we have with alcohol does not make sense because THC blood levels do not correspond to impairment.
So we need to have some kind of measure of impairment that will identify people who are dangerously stoned.
All right, so where do we go?
After all, marijuana is completely taken care of.
Once that happens, what are the next steps?
All right, so one very promising area is sentencing reform.
We have the Fair Sentencing Act, which was passed with strong bipartisan support last year, signed by President Trump.
Some not used to saying that.
And I'm sorry, not the Fair Sentencing.
The Fair Sentencing Act was 2010.
It's the first STEP Act was signed by President Trump.
And that carried on from something that the Fair Sentencing Act 2010 did, which would shrink the gap in sentences between powdered cocaine, the kind you snorted, and crack cocaine, the kind you smoke.
So there was a completely irrational distinction where you had to have 100 times as much powder as crack cocaine to get the same penalty.
And now you have a completely irrational distinction where it's 18 times as much.
That counts as progress, but it was not retroactive.
So you had thousands of people who stayed in federal prison serving sentences that everyone, practically everyone, passed the first, the 2010 bill passed basically unanimously by Congress.
Everyone agrees that these sentences are too long, unjust, but those people continue to serve them.
So the First STEP Act addressed that issue.
So whoever is still there, and the number has been dwindling, but there still were people there serving those extra long crack sentences.
So it addressed that, it reduced mandatory minimums for second drug felonies, I think from 25 to 15 years, if I'm remembering right.
It widened the safety valve, which is for low-level nonviolent drug offenders, so they don't have to get the mandatory minimum that would otherwise apply.
And so it did some worthwhile things.
It was relatively modest, what it accomplished.
You can imagine further reform at the federal level where you reduce other mandatory minimums or even get rid of mandatory minimums.
Civil Forfeiture Wave 00:03:16
And at the state level, of course, we've also seen a lot of activity in terms of sentencing reform, criminal justice reform.
One thing that we might start to see, it was proposed recently in Colorado, but then they ended up changing the bill, which is making it no longer criminal to possess personal use amounts of any drug.
That seems to make logical sense flowing from the example of marijuana, but ultimately they ended up downgrading what used to be a wobbler crime and could be a felony or misdemeanor to a low-level misdemeanor in Colorado.
Another, this is a lot of activity.
I had to update this slide just recently because a lot of states are reforming civil forfeiture laws.
So you guys probably know how this works, but just briefly, if a cop stops you and you got what he seems, what he considers to be a large amount of cash, that's suspicious, he can take the money.
Now it's on you to try to get it back.
He doesn't have to make any kind of specific allegation.
Just generally, I think this is involved with drugs in some way.
Well, is he going to buy drugs?
Did he sell them?
I don't have to say.
And then it's on you.
And so if it is a relatively small amount of money, which it typically is, it's going to cost you more to hire a lawyer and try to get that money back than the money.
So it's completely rational just to abandon a case.
And so it's a kind of legalized theft.
Similar things happen with cars.
Your relatives, your son perhaps, borrows your car, goes and buys drugs.
You don't know what he's doing with it, didn't get in permission.
That car is gone.
Now you have to try to struggle to get it back.
Same thing with houses, right?
Your kid, you didn't know he was growing a marijuana.
Look, they couldn't find him in the prison, right?
There were marijuana plants at a maximum security prison.
So maybe your kid managed to grow a marijuana plant in your backyard and you didn't notice.
Doesn't matter.
He will take your house.
All right, so you had a first wave of reform in the 90s, which were focused mainly on things like establishing an innocent owner defense.
So in cases like that, you could say, yeah, he did that.
I didn't know that he did that.
He didn't have my permission to do it.
And furthermore, I was in no position.
No, right.
So there's still a burden on you, but at least you can assert your innocence and try to prove your innocence, right?
So it's quite different from the way it works with a criminal case.
And then there were some reforms where they said, instead of this revenue going to the cops themselves or the prosecutors themselves, we're going to put it in the general fund, we're going to get it to school.
So you don't have this profit incentive.
Because think about whether what's actually happening, a cop stops you.
He takes your money and he's not literally putting it in his pocket or keeping it himself, but it benefits him.
It goes to his budget.
It helps to fund things that make his job easier, helps to increase resources for law enforcement.
Now, this current wave of reform since about 2014, they're making, by and large, more dramatic changes.
And probably the most important is to say, you can't do this, essentially.
You have to get a criminal conviction first.
So that essentially abolishes civil forfeiture.
It says, once you have convicted somebody of this crime, then you can allege that this property is connected to that crime.
And then you can take it if you can show that it is, right?
So that's dramatically different.
Encouraging Drug Use? 00:12:40
And at this point, let's see.
17 states, this may even be off because this is happening so rapidly, but most recent count I can find 17 states have said that you need a criminal conviction to take somebody's property in either most or all cases.
So that's a big deal.
And the states are also passing anti-sea, cops get very clever.
If you say you can institute these reforms at the state level, they're like, huh, what if I do it under federal law?
And the Justice Department is happy to help them do that.
And they get 80% of the revenue.
So a bunch of states have said, no, we said these are the requirements.
We meant it.
You can't go to the federal government and circumvent state law that way.
So that's great promising.
Another area that is looking pretty good right now, I put MDMA and psychedelics separate because there's a dispute about whether MDMA qualifies as a psychedelic or not, but what you're starting to see is a lot of interest in medical, really psychiatric, mainly psychiatric applications for MDMA and psilocybin in particular.
The FDA has said that both of these are breakthrough therapies, meaning they look very promising, they look like they're better than what is currently available, and we're going to help you fast-track that to the extent the law allows.
Also, we have religious significance.
This is something that's been true for a long time for peyote, right?
Beyote, the Native American Church, has had an exemption under federal law and under most state laws for religious use of peyote.
Under the Religious Freedom Restoration Act, the Supreme Court has unanimously ruled that ritual use of ayahuasca is also protected.
Now, you have to prove that you have a real religion, and this is a central part of it, and all that.
And it involves a lot of unseemly exploration as to whether you really mean it or how sincere you are and so on.
But we have that precedent that, yes, this is a serious use for psychedelics, and we think that that should be allowed.
Addiction and overdose are not big concerns, certainly not for psychedelics.
And MA is a little bit with the overdose, but in general, these are not drugs that are people using every day continuously, right?
And they're not drugs that people readily overdose of.
So those are nothing concerns.
Psychedelics are not quite as scary as they seemed in the 60s and 70s, largely because of the medical applications, I think, and probably to some extent the religious exceptions.
And so then the question becomes: can you get from allowing medical use?
And I think that's going to happen.
I mean, with MDMA, it will be approved in a few years as a prescription drug.
For PTSD, primarily, then conceivably, there may be off-label uses, but you still have to get a prescription for it.
And psilocybin, they're looking at for depression.
So again, that may be approved probably after MDNA, but as a prescription drug for depression.
So how do you get from that to the more general use of psychedelics for spiritual purposes, for psychological purposes, where you don't have to prove you have a psychiatric, you know, you qualify for a psychiatric diagnosis, where you don't have to prove that you're part of a recognized religion, where you don't have to prove even that you believe in God, right, or gods.
I'm not sure.
So they recently passed a ballot initiative in Denver which said basically they're discouraging police from arresting people for possessing psilocybin for personal use.
And that's, I think, is possibly very significant because this is sort of the way it started with marijuana that we said leave the users alone, right?
So this is the first time, as far as I know, that any jurisdiction in the U.S. has said, in essence, they're saying this should not be treated as a crime now.
There's still illegal under state law, there's still legal under federal law, but they've made it quite clear that this should not be deemed a crime.
There are initiatives in the work at works in Oregon and in California that would go further and actually decriminalize psilocybin and allow people to obtain it.
So there's potential there, and I think it's somewhat counterintuitive because these are not drugs that most people, even among people who use illegal drugs, they tend not to use psychedelics.
Marijuana is much, much more popular.
So that's a little bit encouraging, right?
Because people look at these drugs and it's not their cup of tea.
They probably have never used it.
But they still are willing to say maybe other people shouldn't be a mess for it.
So that sort of problem.
This is one of the harder nuts to crack.
Opioids.
First of all, medical use is not going to rehabilitate opioids because that's seen as part of the problem.
I think it's inaccurately seen as part of the problem, or at least the extent to which it's part of the problem has been greatly exaggerated.
But you can't say, oh, opioids have medical use, so now we're full of it.
Addiction and overdose are major concerns, although the risk of both of those is really greatly exaggerated when it comes to people taking these drugs, legally produced opioids, for pain, you know, under with a doctor's prescription.
The risk of overdose and addiction in those cases are actually quite welcome.
But certainly with black market opioids, there is a substantial risk of overdose.
And that's part of the problem.
So one thing that's encouraging is that harm reduction measures that used to be the sort of thing that was quite controversial because conservatives especially would say you're just encouraging people to use drugs.
Why give them clean needles or even allow them to have clean needles?
That just makes it less dangerous.
That's exactly the thing we don't want to do.
If you make it less dangerous, people are more likely to do it.
That was a big debate for years and years.
And at this point, it's pretty much resolved.
And there's a bipartisan consensus that needle exchange problems should be allowed.
In fact, they're substance.
I'm not sure about the second part, whether that's a good idea, but that's pretty striking.
Naloxone, which is this antidote for opioid overdoses, very quickly became a consensus issue.
This should be widely available.
Anybody who might have use of it, who might encounter somebody who's overdose, should have this.
It could save lives.
It's commonsensical.
And the only person that I noticed who was, you know, the only prominent person who's arguing against this was Paul LePage, the former governor of Maine, who actually vetoed a bill to make naloxone more widely available.
And he used exactly the argument that was used against needle exchange, which is we don't want to encourage drug use.
We don't want people, every time they pick up that needle, we want them to think they might die, right?
We don't want them to think, oh, if I overdose, somebody will help me and I'll survive.
That's, you know, that encourages them to use drugs.
But that argument, for the most part, by the way, the state legislature overrode him, overrode his visa.
For the most part, that is not acceptable.
So that's encouraging.
The idea that people who are addicted to opioids, instead of going to prison, they should go to treatment.
Sometimes the treatment is a little bit hard to tell the difference between the treatment and the prison, but that's encouraging that they're being portrayed as more in a more sympathetic light than, for example, methamphetamine users were or crack cocaine users were.
These are human beings.
They're in bad situations.
They need help.
They're not criminals.
They need to be locked up.
That's encouraging.
A couple of things, harm reduction measures are still quite controversial.
One of them is supervised injection facilities.
So you can go to a safe environment, medically supervised, and this is combining some of these other elements.
So you have naxone is available to reverse an overdose.
They provide clean needles.
If people aren't rushed and worried about getting junked or ripped off, they're more likely to be careful in how they inject themselves.
So what you see is this reduces overdose fatalities, it reduces soft tissue infections.
It also reduces the nuisance created by people publicly using drugs, right?
That's something that should appeal to the general public because nobody wants to see people nodding off of park benches or in the restroom at McDonald's or dropping needles all over the place.
So it reduces that problem as well.
This happens all over the world.
It is completely illegal in the United States.
There are one or two underground supervised injection facilities.
But that is quite controversial, even though logically, it seems just like a logical extension.
Oh, one other thing they can do is provide test strips.
So something you buy, you think it's heroin, you're going to test it to see does it actually have fentanyl in it?
Things like that.
And also to help people get into treatment if they want treatment, right?
Still very controversial.
Now, the thing I want to leave you with is we don't want to get into a situation where we say these drugs should be legal because they're not that big a deal.
Or these drugs should be legal because they're not that dangerous and they're beneficial.
It's good for medical applications.
It's good to get your head on straight.
It's good for spiritual use and so on.
Therefore, we're comfortable with these drugs.
Or even worse, I use these drugs, they should be legal, or I know people who do, they're my friends, and it should be legal.
Precisely the drugs that are the most dangerous are the ones where the argument for legalization is strongest.
Because prohibiting them does not make them safer, for sure.
It makes them even more dangerous.
So if you have drugs where overdose, fatal lethal overdose is a concern, for example, the last thing you want, and this is an experiment we actually ran, and I will show you the results, right?
The last thing you want is to stop people from getting legally produced controlled doses, predictable doses of opioids, and instead switch them to a situation where they are getting a powder.
They're told it's heroin, probably.
They don't really know what it is.
They don't know the strength from one purchase to another.
You have widely variable potency, so it's completely unpredictable.
And this is where these fatal overdoses come from.
Another issue is that they are typically involved mixtures with other drugs, right?
So that's like the worst way to do this in an environment where you have no idea what you're taking.
And yet, that in fact is what happened.
This is just to dramatize what has happened in recent years.
This green area in the back shows opioid prescriptions measured by billions of morphine milligram equivalents.
As you can see, since about, I think it's 2009, 2010, it's been going down.
So the federal government has accomplished its goal of discouraging opioid prescriptions.
The amount prescribed and the number of prescriptions is going down.
And what has happened as that's going on, you see opioid-related deaths shooting up, not only continuing to go up, but going up at a faster rate.
And so this isn't a coincidence.
This is what's happening to a large extent is that people who are non-medical users, who maybe went to a doctor who was very loose in his practices, got a prescription, that guy was shut down by the DEA, and then that guy was told, his patient was told, you know, goo, good luck.
Went off to the black market.
In some cases, these are actually pain patients who have trouble getting the medication they need because of the cracked head.
And they end up in the black market where the potency is completely unpredictable and much more often than in the legal market.
They can't kill you.
So this is not a success.
This graph does not depict success.
And we don't want to be polyhannish about it and say, oh, it's fine.
They'll use these drugs.
Once it's legal, nobody will be hurt by drugs.
People will still be hurt by drugs, even when they're legal.
But what is quite clear is that prohibition increases the harm caused by drugs.
And we need to press that argument.
In addition to the argument about bodily autonomy, which I wish would catch on, but I don't think Americans are ready to generalize to that extent.
We need to push this argument.
What are you worried about?
Are you worried about people dying from using these drugs?
If that's your concern, you should not be supporting the current policy because the current policy is driving up opioid and fluid effects.
That's about it.
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