Asa Hutchinson's 'Small Government' Case for Marijuana Prohibition

The former drug czar warns that if we legalize pot, it might lead to kids getting scholarships. Would that really be so bad?

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Asa Hutchinson, who spent two years heading the Drug Enforcement Agency, debated marijuana legalization Monday with Ethan Nadelmann, executive director of the Drug Policy Alliance. In response to a question, he raised a prohibitionist argument that I've never heard before.

Take a look (emphasis added):

MODERATOR: You were George W. Bush's first DEA administrator. Has the war on drugs, particularly with reference to marijuana, been a costly mistake, and aren't we in a position to not only save a lot of money on incarceration and so forth, but also to raise a lot of money -- this is an argument one hears -- through tax revenue if marijuana is legalized.

ASA HUTCHINSON: Our democracy is not going to fall if you legalize marijuana. But I think you have to ask yourself, what is the best thing for our country? And you can take two approaches to it. You can say, well, there's been some mistakes in past policy on marijuana enforcement, and so we ought to adjust those policies. And that's actually what's happening all across the country. It's such a small, miniscule percent, particularly for people who are in federal custody because of a marijuana possession offense. It just doesn't happen. So look at it: Texas, Arkansas, many states are looking at incarceration policy, making adjustments, and you've got to be a pretty serious drug offender in order to go to jail for, you know, breaking the law. And so you can adjust current policy, we've done it with drug treatment courts, we're putting more money in the treatment side, alternatives to incarceration, for those that have an addiction problem. That's the path I would like to see, if you see mistakes made, let's adjust those. And I think that's what Europe has done.

Europe has not moved toward decriminalization across the board. Latin America has not moved toward decriminalization, they've simply moved toward adjustment of their enforcement policy. But the other path is just legalize it. Let's think about what happens if you legalize marijuana all across this country. One, I think it would generate tax revenues. I'm on the conservative side, and there's a lot of libertarians who don't believe in strong government but support marijuana legalization. It's ironic to me that if you legalize marijuana, what are you going to create? A huge government bureaucracy. That's what's happening in Colorado. You've got to have licensing authority. You've got to have tax collection authority. You've got to have enforcement authority. So you're going to create a huge regulatory body in every state and the federal government if you legalize it across the board, to collect the taxes and to make sure the enforcement is there.

Arkansas we have the Arkansas lottery scholarships, lottery money coming in which funds our scholarships. Well, we're going to be having pot scholarships, because you're going to have revenue coming in to generate it, and the public's going to sell it because you're gonna be able to send your kids with scholarships based upon marijuana tax revenue.
You're going to have retail shops, you're going to have distribution, you're going to have cultivation, all highly regulated. That's the path we've got to go. I believe it would increase harm. So two paths you can take, and I believe the best one is keep it criminalized, keep it illegal conduct, but let's make the adjustments from lessons that we've learned over the last two decades.

Given the costs associated with the drug war, it's really something for a prohibitionist to warn that if we legalize marijuana, we're going to have to deal with the specter of kids getting scholarships. (Unsurprisingly, the Aspen Ideas Festival crowd didn't seem very upset by that prospect.) But what really interests me is Hutchinson's notion that small-government conservatives and libertarians should oppose legalization because it would create a new bureaucracy.

This is a bad argument for two reasons:

  • The drug enforcement bureaucracy and prison system are much larger and more costly than any sane regime of regulating marijuana.
  • The federal government and the states already have bureaucracies that regulate certain goods, like alcohol and tobacco, and that collect revenue. (In Washington, where they've legalized marijuana, the regulatory tasks are going to be carried out in the alcohol control bureau.)

But the biggest reason Hutchinson's argument falls flat is that small government isn't an end in itself. Even if the "regulate marijuana" bureaucracy turned out to be a bit bigger than the "enforce prohibition" bureaucracy, it would be facilitating market transactions among consenting adults, rather than paying paramilitary SWAT teams to kick down doors and haul nonviolent offenders to cages.

Preferring a smaller, extremely coercive government to a somewhat larger, much less coercive government makes no sense. Better to fund scholarships for 100,000 people than to needlessly jail 25,000 people, even if the scholarships cost more money and require more staff! But as noted above, the bureaucracy required to regulate marijuana is almost certainly going to be smaller than the bureaucracy needed to prohibit it.