Would Legalizing Marijuana Be Too Hard on Simpletons?

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That's the latest argument offered by a prominent critic of legal cannabis. And it fails even if you accept the need for paternalism.

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At CNN, David Frum continues his anti-marijuana-legalization push with an argument that has a nugget of truth. "When we write social rules, we always need to consider: Who are we writing rules for?" he writes. "Some people can cope with complexity. Others need clarity .... Over the past three decades, and in area after area of social life, Americans have replaced simple rules that anybody can follow with complex rules that baffle large numbers of people."

To illustrate what he means he talks about home mortgages.

Consider, for example, the home mortgage. Once the mortgage was a very simple product. Put 20% down, then sign up for a fixed schedule of payments over the next 30 years. In the space of a single generation, these 30-year fixed-rate amortizing mortgages turned what had been a nation of renters into a nation of homeowners. For more sophisticated buyers, however, the standard mortgage was a big nuisance. For them, bankers developed more flexible products: no money down, no documentation, interest-only, adjustable rate.

These products met genuine needs. But as they diffused down-market, they became traps for people who did not understand the risks they were accepting.

I don't know if that's an accurate history of the home mortgage, but it's enough to make his meaning clear. Says Rod Dreher, nodding:

Clever people who know how to negotiate a world of risky choices successfully tend to be libertarians who wish to maximize choice. They trust in their own ability to make the right choice. And they also trust in their ability, or their means, to absorb the consequences of a negative choice. I find that libertarians often fail to appreciate that there are many, many people in the world who aren't clever, who don't bring the same skill and temperament set to negotiating risky choices, and who have far less resilience if their choices result in failure.

He goes on:

Traditional social rules of sex, marriage, and childbearing may strike sophisticated libertarian-oriented people as an onerous burden, or at least the sort of thing that ought not be taken terribly seriously. Less clever people, though, may have far less skill at handling sexual relationships in the absence of strong social norms -- with much more serious consequences.

In my experience, libertarians are far more interested in people's capabilities than they are in people's frailties.

This is a blind spot, I think.

The common good may require limits on the freedoms of its most intelligent and capable members. The stupid ought to be able to count on a certain level of protection from the sophisticated.

Again, I definitely don't want to endorse all of that, but let us grant that policymakers ought to be attuned to the fact that there are benefits to simplicity in social rules, and one of the benefits is the likelihood of better outcomes among people who lack sophistication in a given policy area.

Does that insight have implications for the marijuana debate? I'll let Frum make his case:

Last week, I joined the board of a new organization to oppose marijuana legalization: Smart Approaches to Marijuana. The group is headed by former U.S. Rep. Patrick Kennedy and includes Kevin Sabet, a veteran of the Office of National Drug Control Policy under President Obama. The new group rejects the "war on drugs" model. It agrees that we don't want to lock people up for casual marijuana use -- or even stigmatize them with an arrest record. But what we do want to do is send a clear message: Marijuana use is a bad choice.

There are many excellent reasons to avoid marijuana. Marijuana use damages brain development in young people. Heavy users become socially isolated and perform worse in school and at work. Marijuana smoke harms the lungs. A growing body of evidence suggests that marijuana can trigger psychotic symptoms that otherwise would have remained latent.

It's possible to imagine a marijuana rule that tries to respond precisely to such risk factors as happen to be known by the current state of science. Such a rule might say: "You shouldn't use marijuana until you are over 25, or after your brain has ceased to develop, whichever comes first. You shouldn't use marijuana if you are predisposed to certain mental illnesses (most of which we can't yet diagnose in advance). Be aware that about one-sixth of users will become chronically dependent on marijuana, and as a result will suffer a serious degradation of life outcomes. As yet, we have no sure idea at what dosage marijuana will impair your ability to drive safely, or how long the impairment will last. Be as careful as you can, within the limits of our present knowledge!" Yet as a parent of three, two exiting adolescence and one entering, I've found that the argument that makes the biggest impression is: "Marijuana is illegal. Stay away." I think many other parents have found the same thing.

There are several problems with his argument.

  1. Most obviously, under every proposal for legalizing marijuana, it would remain illegal for minors and perhaps even for adults up to age 21. Parents won't be deprived of the ability to say, "Marijuana is illegal, stay away," until their adolescents are in college or living in an apartment and working. 
  2. Legalization advocates actually favor the simpler policy apparatus: Everyone understands that you can vote at 18 and that you can drink at 21. Making marijuana legal for all adults, or all people 21 or older, is about as simple as it gets, and its laughable to compare a standard age rule to zero-down-adjustable-rate mortgages or the complexity of an open sexual relationship. 
  3. Using illegality as a heuristic for "most dangerous" is itself going to turn out badly for some people who aren't very smart. Marijuana abuse isn't anything to take lightly, but the substance is less dangerous than alcohol in many ways, less dangerous than huffing paint, less dangerous than lots of prescription drugs, and less dangerous than hang gliding. 

Its heartening to see Frum write that "We don't want to lock people up for casual marijuana use -- or even stigmatize them with an arrest record." In other words, even opponents of legalization now realize that it's optimal to end the War on Drugs, even though doing so would implicitly send a signal that marijuana isn't as dangerous as policymakers have been treating it.

His decriminalization policy sounds pretty complicated.

For now, the fact remains that people are locked up for casual marijuana use and stigmatized with an arrest record. The most effective way to undercut the legalization movement is to reform the War on Drugs and mitigate the harms it is still doing, every day, to many thousands of people here and abroad. Decriminalization would go far enough for many people in the anti-drug-war coalition, and Frum would be wise to make it his priority if he wants to stop legalization.

But some legalization advocates will persist. As they see it, making it easier for people like Frum to warn his adolescents against marijuana use isn't so valuable as to offset the existence of a black market that empowers vicious drug cartels, destabilizes multiple Latin American nations, and fuels gang wars over drug turf on the streets of multiple American cities. Those costs of the black market never seem to find their way into anti-legalization arguments.

One final point about the "unsophisticated" people the paternalists are out to protect. So long as prohibition persists, a subset of them will be risking their futures and perhaps their lives by deciding to sell drugs on the black market. And another subset of the "unsophisticated" will trust the wrong people to supply their drugs and wind up with a product more dangerous than it would otherwise be. I wish David Frum's family all the best, but catering drug policy to the needs of upper-middle-class kids in homes with parents who actively talk to them about drug abuse doesn't make much sense, even from a paternalist perspective -- especially given the awful track record of "it's illegal" in preventing American youth from experimenting with marijuana.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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