Opinion: Governor’s Proposal to Legalize Recreational Cannabis – A Self-Inflicted Wound

[See also, “News Analysis: RI to Legalize Recreational Cannabis,” Jan 16, 2019]

The more I talk to people on both sides of RI Governor Gina Raimondo’s proposal to legalize recreational cannabis, the more pessimistic I become that anything at all can be passed by the General Assembly: the proposal is almost custom-crafted to displease everyone and please no one, uniting vocal opposition from disparate factions who have little else in common with each other. The governor could not have done a better job of shooting herself in the foot if she used an assault rifle.

A prohibition against home growing for both recreational and medical users except for particular patients who can demonstrate somewhat fuzzily defined “hardship” betrays one of the core purposes of the existing medical program, pushing everyone into the same commercialized supply chain. The governor’s office confirmed to me that, “as proposed,” medical patients would be subject to the same estimated 20% tax as recreational buyers. The large contingent of existing home growers, both legal and illegal, would almost certainly prefer the status quo.

Municipalities would be given almost unlimited power to regulate all aspects of the cannabis business from growing to retailing, including complete prohibition, but “a portion of [tax] revenue will go to all cities and towns regardless of whether they permit marijuana licenses or not in recognition that the [costs] of marijuana do not stop at a city or town line.” Police are promised that enforcing laws against driving under the influence will be a well-funded priority, but no objective chemical tests yet exist to measure impairment and charges will have to derive from “observation.”

Employers, notably large defense contractor Electric Boat, want to continue to be able to refuse to hire or to discipline employees who fail mandatory drug tests: Obviously impairment on the job is a serious matter, but there is no logical basis for concluding that someone who consumed cannabis weeks ago is any less suitable than someone who consumed alcohol weeks ago. The rationale for aggressive drug testing has been that an employee willing to break the law is arguably less trustworthy, but that justification falls apart if there is no law to break.

Raised in the context of a budget component, the governor’s proposal is silent on the significant social justice problems of cannabis prohibition, particularly by not addressing in any way the past criminal records of people convicted of non-violent possession offenses, many going back decades, that continue to keep them from education and employment. Because the burden of criminal enforcement has historically fallen unfairly and disproportionately upon people of color, this is a troubling oversight.

As we approach the centenary of alcohol prohibition that began on January 17, 1920, commencing a disastrous 14-year social experiment at the expense of the American people, many of the some political forces that led to it are still at work today. The hand-wringing about access to cannabis by children ignores the undeniable fact that it is universally available on the black market in every middle school and high school now, sold to middle schoolers and high schoolers by their own classmates; it is harder for teenagers to get alcohol than cannabis because alcohol is widely available legally to adults through a supply chain that has a vested interest in staying on the correct side of the law. During alcohol prohibition, within five years of the nation going legally “dry,” it is estimated that there were between 30,000 and 100,000 “speakeasies” (illegal taverns) in New York City alone.

Any successful proposal on cannabis from the governor should have as its goal legalizing the black market and bringing it under reasonable regulation, as happened at the end of alcohol prohibition: if she instead foolishly tries to eradicate the black market by supplanting it with a corporatist model, she will provide incentives for those in the illegal segment, such as recreational growers, to remain in the black market, at the same time pushing those in the legal segment, such as medical growers, to migrate into the black market. Indeed, the original core purpose of the medical cannabis laws was to enfold medical growers within reasonable regulation that would attract them to operating legally and protect them; if that regulation becomes unreasonable, the state by breaking its covenant with them will just push them back to being outlaws as they started.

By trying to please everyone rather than staking out a principled position based upon facts and evidence, what the governor proposes is a mush of compromises that will be unworkable in practice and supported by no one.