Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Monday, February 23, 2015

What might be the modern public health story if marijuana had been kept legal and tobacco cigarettes widely banned?

Students in my marijuana seminar know that I think there is much to think about and learn from the history of (alcohol) Prohibition in the United States and the history of marijuana prohibition.   But I have now learned from this fascinating new Jacob Sullum piece that there was an interesting US history surrounding cigarette prohibition that also should be a lesson for modern marijuana advocates.   The lengthy Sullum piece, which is headlined "Today's Pothead Is Yesterday's Cigarette Fiend," should be read in full, but these passages are what engendered the question in the title of this post:

At first the anti-cigarette campaign, which had close ties to the temperance movement, focused on restricting children's access.  By 1890, 26 states had passed laws forbidding cigarette sales to minors, but many children continued to smoke.  Led by Lucy Page Gaston, a former teacher from Illinois whose career as a social reformer began in the Woman's Christian Temperance Union, the anti-cigarette crusaders next insisted that complete prohibition was necessary to protect the youth of America.  Between 1893 and 1921, 14 states and one territory (Oklahoma) enacted laws banning the sale of cigarettes, and in some cases possession as well.

Upholding Tennessee's ban in 1898, the state Supreme Court declared that cigarettes "are wholly noxious and deleterious to health. Their use is always harmful; never beneficial. They possess no virtue, but are inherently bad, bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond any question, their every tendency is toward the impairment of physical health and mental vigor."

In contrast to contemporary anti-smoking activists, who talk almost exclusively about the habit's effect on the body, early critics of the cigarette were just as concerned about its impact on the mind.  In the 1904 edition of Our Bodies and How We Live, an elementary school textbook, Albert F. Blaisdell warned: "The cells of the brain may become poisoned from tobacco.  The ideas may lack clearness of outline.  The will power may be weakened, and it may be an effort to do the routine duties of life…. The memory may also be impaired."

Blaisdell reported that "the honors of the great schools, academies, and colleges are very largely taken by the abstainers from tobacco," adding, "The reason for this is plain.  The mind of the habitual user of tobacco is apt to lose its capacity for study or successful effort.  This is especially true of boys and young men.  The growth and development of the brain having been once retarded, the youthful user of tobacco has established a permanent drawback which may hamper him all his life.  The keenness of his mental perception may be dulled and his ability to seize and hold an abstract thought may be impaired."

In the 1908 textbook The Human Body and Health, biologist Alvin Davison agreed that tobacco "prevents the brain cells from developing to their full extent and results in a slow and dull mind." He added, "At Harvard University during fifty years no habitual user of tobacco ever graduated at the head of his class."

These themes were taken up by prominent, widely admired Americans who were troubled by a cluster of traits that would later be associated with marijuana.  "No boy or man can expect to succeed in this world to a high position and continue the use of cigarettes," Philadelphia Athletics Manager Connie Mack wrote in 1913.  Biologist David Starr Jordan, the first president of Stanford University, concurred. "The boy who smokes cigarettes need not be anxious about his future," he said. "He has none."...

In the decades that followed, the cigarette's reputation underwent a complete reversal. Far from sabotaging intellectual achievement and economic productivity, it was seen as facilitating them through the stimulating action of nicotine.  But the dull, listless underachievers described by Ford and Edison reappeared in the 1960s, smoking something else.

Testifying before Congress in 1970, Harvard psychiatrist Dana Farnsworth noted that scientists had come up with a name for the condition that prevented marijuana users from reaching their potential. "I am very much concerned about what has come to be called the 'amotivational syndrome,'" Farnsworth said. ...

A decade and a half later, Robert DuPont declared that "millions of young people are living as shadows of themselves, empty shells of what they could have been and would have been without pot."  In 1989, his first year as the nation's first official "drug czar," Bill Bennett explained how smoking pot affects young people: "It means they don't study.  It causes what is called 'amotivational syndrome,' where they are just not motivated to get up and go to work."

It is plausible, of course, that smoking a lot of pot in high school might interfere with academic performance, just as heavy drinking might. But Farnsworth, DuPont, and Bennett are describing something more than that: a long-lasting impairment of the will that prevents cannabis consumers from being all that they can be....

Despite its continuing appeal as a propaganda theme, the idea that smoking pot makes people unproductive has never been substantiated.  In their 1997 book Marijuana Myths, Marijuana Facts, the sociologist Lynn Zimmer and the pharmacologist John P. Morgan examined the evidence and concluded: "There is nothing in these data to suggest that marijuana reduces people's motivation to work, their employability, or their capacity to earn wages.  Studies have consistently found that marijuana users earn wages similar to or higher than nonusers."

A 1999 report from the National Academy of Sciences noted that amotivational syndrome "is not a medical diagnosis, but it has been used to describe young people who drop out of social activities and show little interest in school, work, or other goal‑directed activity.  When heavy marijuana use accompanies these symptoms, the drug is often cited as the cause, but there are no convincing data to demonstrate a causal relationship between marijuana smoking and these behavioral characteristics."...

Like the symptoms of cigarette use that worried Ford and Edison, the symptoms of marijuana use are often hard to distinguish from the symptoms of adolescence. Peggy Mann's 1985 book Marijuana Alert, which Nancy "Just Say No" Reagan described in the foreword as "a true story about a drug that is taking America captive," is full of anecdotes about sweet, obedient, courteous, hard-working kids transformed by marijuana into rebellious, lazy, moody, insolent, bored, apathetic, sexually promiscuous monsters. "It was very easy for parents to blame marijuana for all the problems that their children were having, rather than to accept any responsibility," observes Harvard psychiatrist Lester Grinspoon, a leading authority on marijuana. "It became a very convenient way of dealing with and understanding various kinds of problems."...

Current fears about marijuana and other illegal drugs, like fears about cigarettes at the beginning of the last century, reflect the sort of worries that reappear in every generation. Parents want their children to be smart, to do well in school, to respect authority, and to become productive, responsible adults.  The dull, lazy, rebellious, and possibly criminal teenager―the cigarette fiend or pothead — is every parent's nightmare. Adults who have no children of their own worry that other people's kids will become tomorrow's parasites or predators, bringing decline and disorder.

Despite all the alarm that drug scares seem to generate, projecting these fears onto physical objects can be reassuring: Just keep the kids away from tobacco or marijuana (or alcohol or MDMA), we are implicitly told, and they will turn out OK. As symbols of all the things that might go wrong on the path from birth to maturity, drugs offer what every adult confronted by a troublesome teenager longs for: the illusion of control.

A few prior related posts:

February 23, 2015 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical community perspectives, Who decides | Permalink | Comments (0)

Friday, February 20, 2015

Marijuana's Pauline Sabin?: "85-year-old Houston woman fighting to legalize marijuana"

I just got finished watching the last segment of the wonderful PBS Prohibition documentary, which stresses the role of  Pauline Sabin, the first woman to sit on the Republican National Committee and the founder of the Women’s Organization for National Prohibition Reform, who helped drive the movement to repeal the 18th amendment.  With that history fresh in mind, I found especially interesting this news report from Texas which has the headline quoted in the title of this post.  Here are excerpts:

"I've always been pretty outspoken," said Ann Lee. At 85 years old, Ann Lee looks like anyone's grandmother. "I don't know whether it's my age, the white hair, what is it, but it does seem to strike a chord," said Lee.

But don't let the white hair fool you. She's a fiery Republican who believes you have the right to use marijuana. "It's just me, I believe in this," said Lee.

For Lee, it's personal. She wasn't always a supporter of weed. That changed when her son was bound to a wheelchair, and needed it to treat his condition. "We realized marijuana wasn't the weed of the devil which I had been known to say," said Lee.

She and her husband Bob fought to legalize weed since then. Bob died last week. Now it's her job to finish what they started together. "This is heady stuff for this lady," said Lee. "I've been an activist for many years, but I've never had the response that I'm now getting."

She knows more about weed than someone half her age, and even has the occasional edible. Activists call her the perfect weapon in the marijuana reform movement. "It's not Republican to support prohibition," said Lee.

Some prior related posts:

February 20, 2015 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Monday, September 1, 2014

How the alcohol industry sees marijuana legalization

A few weeks ago, Talkingpointsmemo.com posted a long-form article, available only to TPM Prime subscribers, title "Can Big Pot and Big Alcohol Get Along?".  I finally had a chance to read it.  Though a lot of points in the article will be familiar to those who follow this issue, it has one of the most comprehensive looks at the alcohol industry's reaction to marijuana legalization that I've seen.  And, as the article notes, the alcohol industry now views legalization as inevitable:  

Beer, wine and liquor do not care that legalization isn’t technically on the books. For them, it’s already a foregone conclusion. And that means that weed is already a real competitor.

 

...

 

Beer and wine may be as American as a baseball game, but Big Alcohol doesn’t feel at all relaxed about this debate. At alcohol trade association meetings, pot is already spoken of as a key competitor. A vigorous internal discussion has been taking place within the industry to figure out how they can establish working relationships with the marijuana world, and what to do if they can’t.

 

...

 

At the National Alcohol Beverage Control Association’s annual legal symposium, which draws state regulatory agency officials, corporate counsel, industry policymakers and private attorneys, a representative from the Marijuana Policy Project spoke. Attendees said that during the Q&A, “a couple people stood up and kind of attacked her” about MPP’s alcohol-bashing tactics.

 

...

 

While Big Alcohol has expressed that they would prefer to co-exist amicably in the marketplace, in their minds, the marijuana industry has to make a choice: pot can choose to be their friend, or to be their enemy. And if Big Pot decides they want to continue to launch regular attacks on alcohol, then alcohol will ultimately fight back.

The whole piece is well worth reading.  Unfortunately, to do so, you'll need a subscription (at $50/year)--not really worth it for just this one article.  But TPM is one of the best independent journalism sites around and subscribing is a great way to support a valuable news source (not to mention a good value for those who closely follow political/policy news.)  So, if you're a TPM reader who has thought about signing up for the Prime subscription before, this article could provide a bit of an extra incentive.  

September 1, 2014 in Food and Drink, History of Alcohol Prohibition and Temperance Movements, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, August 26, 2014

The local option for marijuana, Part II: the theory of local control

In my last two posts, I’ve highlighted the emerging struggle between state and local governments for control of marijuana policy. My latest article tries to provide some guidance on whether states should give local governments the option of banning marijuana sales.

This Part of the article discusses the theory of local control. It illuminates the competing considerations that help determine whether local control over marijuana (or any other issue) is normatively desirable. (I’ve eliminated the footnotes for this post, but they’ll be available once I post the completed draft on SSRN.)

A. The case for local control

Local control is supposed to promote economic efficiency. In particular, empowering local governments to tackle divisive issues is supposed to enable more people to get the policy they desire. The reason is that minorities in statewide contests sometimes comprise majorities in local communities; there are, after all, more than 3,000 counties and 15,000 municipalities sprinkled throughout the 50 states. These residents would be happier if they were allowed to pursue the policy they prefer through these local communities, rather than live under the policy the state as a whole would choose. Mobility of the population arguably enhances the efficiency of local control. The idea is that residents who are dissatisfied with the policy espoused by one local government can relocate to a community with a more appealing policy. To be sure, residents could also relocate from one state to another, but the comparatively large number of local governments increases the chances that dissatisfied residents will find more appealing matches and it also lowers the cost of relocation.

Continue reading

August 26, 2014 in History of Alcohol Prohibition and Temperance Movements, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, August 13, 2014

The Local Option for Marijuana

I haven’t blogged for a while, but I’ve been enjoying Doug’s and Alex’s and Rebecca’s posts over the summer.

After starting up several new projects over the summer, I’m finally able to begin blogging again. In my first few posts, I’m actually going to focus on one of the projects that consumed my summer time -- a symposium paper I’m writing tentatively called The Local Option for Marijuana. The paper asks whether states should allow local governments to ban marijuana sales, notwithstanding state legalization of the drug. Doug, Alex, and I have debated the merits of the local option before – see posts and comments here, here, and here. I think we identified most of the major arguments both for and against local control. But it also became clear to me that many of our arguments depended on contested assumptions about the effects of local control. For example, local control looks a lot less appealing if it simply displaces – rather than reduces – the harms associated with marijuana distribution (DUIs, etc.). But it’ll probably be decades before we can know with any certainty what happens when local communities ban vs. allow marijuana distribution. And that will simply be too late for most states, which must decide now whether to grant local governments the option of banning marijuana sales.   

Fortunately, we do have decades of experience with local control of alcohol that could prove instructive. Since the mid-to-late 1800s, states have delegated power to local governments to control – even ban -- the distribution of alcohol. Indeed, hundreds of counties inhabited by roughly 10% of the nation’s population remain “dry” today. Social scientists have exploited county-by -county variations to test the effects of various local controls on alcohol consumption, cirrhosis, traffic fatalities, etc.  In this article, I’m poring through that research for lessons about local control over marijuana. I have a few tentatively formed conclusions that I’ll share in the coming days. As always, I’m open to comments, critiques, and suggestions – sources, avenues of inquiry, etc.

August 13, 2014 in Current Affairs, History of Alcohol Prohibition and Temperance Movements, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Thursday, November 7, 2013

Is it "misleading to compare marijuana to beer"?

Beer potThe question in the title of this post is drawn from a quote by someone from the Beer Institute appearing in this notable new National Journal item headlined "Alcohol Is Really Pissed Off at Marijuana Right Now; The marijuana industry is convincing Americans its substance is safer than alcohol, and booze lobbyists don't like it."   Here are excerpts from the new National Journal piece:

Marijuana has been giving alcohol a bad name. So contend booze lobbyists, who are getting sick of an ad campaign that makes the claim that pot is safer than their beloved beverages.

"We're not against legalization of marijuana, we just don't want to be vilified in the process," said one alcohol industry representative who didn't want to be quoted harshing his colleagues mellow. "We don't want alcohol to be thrown under the bus, and we're going to fight to defend our industry when we are demonized."

The marijuana industry has had a good couple of years: a recent poll found that 58 percent of the country thinks the product should be legal, recreational use has been legalized in two states already, and this past election saw the city of Portland, Maine, legalize 2.5 ounces of pot. Ahead of the vote in Portland — which received 70 percent support — the Marijuana Policy Project put up signs around the city with messages like "I prefer marijuana over alcohol because it doesn't make me rowdy or reckless," and "I prefer marijuana over alcohol because it's less harmful to my body."

Alcohol lobbyists believe it's a "red herring" to compare the two. "We believe it's misleading to compare marijuana to beer," said Chris Thorne of the Beer Institute. "Beer is distinctly different both as a product and an industry."

Thorne notes that the alcohol industry is regulated, studied extensively, and perhaps more importantly already an accepted part of the culture. "Factually speaking beer has been a welcome part of American life for a long time," he said. "The vast majority drink responsibly, so having caricatures won't really influence people."

But MPP takes issue with the idea they are painting a false picture. In a recent Op-Ed for CNN, Dan Riffle, the group's director of federal policies, notes that according to the Centers for Disease Control excessive alcohol use is the third leading lifestyle-related cause of death. Booze also "plays a role in a third of all emergency room visits," he says....

"That's like saying we shouldn't talk about relative harms of sushi to fried chicken," said Mason Tvert, who in addition to working at MPP wrote a book called Marijuana is Safer: So Why are We Driving People to Drink? "It's important that people know the relative harms of all substances, so there's no reason not to talk about the two most popular substances in the world."

Cross-posted at Marijuana Law, Policy and Reform

November 7, 2013 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, September 5, 2013

Are there undisputed benefits from prohibition regimes and/or undisputed harms from legalization/regulation regimes?

The question in the title of this post is a variation of the topic that consumed discussions today in my "Marijuana Law, Policy & Reform" seminar.  Though I am not sure I did a great job steering the discussion, I am sure that students had a number of interesting and thoughtful reactions to the first part of this question.  

One of my goals in these questions is to explore whether, if we take as an empirical given that prohibition regimes do tend to reduce use of a prohibited product, folks would accept or resist the contention that reduced use is an undisputed benefit of prohibition regimes.  (We have been considering the history of alcohol Prohibition in the US at the start of the course, and some research suggests that the enactment of the 18th Amendment and related laws drove down alcohol consumption to 30% of pre-Prohibition usage, although over the period of Prohibition alcohol use rose to reach about 60 to 70% of pre-Prohibition usage levels.)  Of course, to say reduced use of a product is an undisputed benefit indicates a belief that any and all use is an undisputed harm.   I suspect many folks would now resist the claim that any and all use of alcohol is an undisputed harm, and I explored with students whether they thought more of society was coming to resist the claim that any and all use of marijuana is an undisputed harm.

At the end of the class, we only briefly got to the question of what undisputed harms might be said to flow, at least in part, from legalization/regulation regimes for a drug like alcohol.  I started this part of the discussion with my concerns about significant harms that result from drunk driving, and other students raised issues related to crimes and physical violence and related to poor allocation of societal resources.  How much of these harms could and should be attributed to our current legalization/regulation regime for alcohol is, of course, a contestable question, but in this setting the issue seems to be not whether these matters count as harms, but rather whether a legalization/regulation regime increased or increases these harms.

September 5, 2013 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, August 29, 2013

Seeking views on important under-appreciated lessons from US history with alcohol Prohibition

As I explained via this post on one of my other blogs a few month ago, I thought it wise to devote at least a few early weeks in my Fall 2013 seminar on "Marijuana Law, Policy & Reform" to a review of the legal and social history of alcohol Prohibition.   I am doing so because (1) public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco, and (2) there are many legal and social themes and lessons from the US temperance movement and the years during and surrounding the Prohibition era that merit significant coverage in my new class before we jump into modern marijuana law and policy.

I have kicked of my class activites by urging all my seminar students to watch with me the full wonderful 2011 Ken Burns' PBS documentary on Prohibition, as well as cruise around this terrific website from the History Department at Ohio State (which includes this especially interesting account with visuals concerning campaigns by the "drys" in Ohio).  I also have urged students to read parts of the terrific 1970 article by Richard Bonnie & Whitebread, Forbidden Fruit and the Tree of Knowledge - An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Virginia L. Rev. 971 (1970) (available here).

There are, of course, lots of important obvious lessons to take away from US history with temperance movements and alcohol Prohibition.  For example, in this page from the PBS website under the heading "Unintended Consequences," historian Michael Lerner concludes a lengthy discussion with these observations:

The greatest unintended consequence of Prohibition however, was the plainest to see. For over a decade, the law that was meant to foster temperance instead fostered intemperance and excess. The solution the United States had devised to address the problem of alcohol abuse had instead made the problem even worse. The statistics of the period are notoriously unreliable, but it is very clear that in many parts of the United States more people were drinking, and people were drinking more.

There is little doubt that Prohibition failed to achieve what it set out to do, and that its unintended consequences were far more far reaching than its few benefits. The ultimate lesson is two-fold. Watch out for solutions that end up worse than the problems they set out to solve, and remember that the Constitution is no place for experiments, noble or otherwise.

I suspect my students and others are quick to take away from the US history here that we should seek to avoid governmental cures that are worse than the disease and also avoid too much constitutional experimentation.  But, as the title of this post suggests, I am eager to explore (in this space and with my seminar students) what might be deemed important under-appreciated (or at least under-discussed) lessons from not just Prohibition itself, but also from the broader alcohol temperance movements that stretch back many centuries and arguably still have some enduring echoes and impacts today.

August 29, 2013 in History of Alcohol Prohibition and Temperance Movements | Permalink | Comments (1)