Buzzkill

One morning in August, Mark Kleiman, a professor of public policy at U.C.L.A., addressed the Seattle city council on the subject of marijuana. Kleiman is one of the country’s most prominent and outspoken analysts of drug policy, and for three decades he has argued that America’s cannabis laws must be liberalized. Kleiman’s campaign used to seem quixotic, but in November, 2012, voters in Washington and Colorado passed initiatives legalizing the use and commercial sale of marijuana. Immediately afterward, the State of Washington decided that it needed help setting up a pot economy. State bureaucrats don’t generally sit around pondering the improbable, so they had made no contingency plans. A call for proposals was issued. Kleiman assembled a team that beat out more than a hundred other contenders for the job. He calls himself a “policy entrepreneur,” and offers advice through a consultancy that he runs, botecAnalysis Corp. In a nod to the ambiguity inherent in studying illicit economies, botec stands for Back of the Envelope Calculation.

Washington and Colorado have launched a singular experiment. The Netherlands tolerates personal use of marijuana, but growing or selling the drug is still illegal. Portugal has eliminated criminal sanctions on all forms of drug use, but selling narcotics remains a crime. Washington and Colorado are not merely decriminalizing adult possession and use of cannabis; they are creating a legal market for the drug that will be overseen by the state. In a further complication, the marijuana that is legal in these states will remain illegal in the eyes of the federal government, because the Controlled Substances Act of 1970 forbids the growing and selling of cannabis. “What the state is doing, in actuality, is issuing licenses to commit a felony,” Kleiman says. In late August, after months of silence, the Department of Justice announced that it will not intervene to halt the initiatives in Washington and Colorado. Instead, it will adopt a “trust but verify” approach, permitting the states to police the new market for the drug. Many other states appear poised to introduce legalization measures, and the Obama Administration’s apparent acquiescence surely will hasten this development.

Washington’s initiative, called I-502, received fifty-six per cent of the vote, with especially strong support in western Washington, around Seattle. Voters saw a lot to like: the end of prohibition of a drug that many people enjoy and consider harmless; a fresh source of tax revenue; an end to the punitive, and racially discriminatory, enforcement of marijuana laws. Each year, U.S. authorities make more than three-quarters of a million arrests for marijuana offenses. Blacks are more than three times as likely to be arrested for such offenses as whites are, though they are no more likely to use the drug. Pete Holmes, the city attorney of Seattle, told me that state prosecutors had stopped indicting people for marijuana possession, because local jurors found the prohibition so objectionable that they tended to acquit on principle. A few years ago, Holmes stopped prosecuting misdemeanor marijuana-possession cases. He then publicly endorsed I-502.

The law, which was sixty-four pages long and contained hundreds of specific provisions, assigned the liquor-control board the role of regulating the pot market. Yet many difficult questions remained: Who would be allowed to grow legal marijuana? Who would be allowed to sell it? How much would an ounce of legal pot cost? The legislation gave Washington officials only a year to come up with answers. Randy Simmons, the state’s project manager for I-502, says, “From the week after the initiative passed, it’s been about a hundred and fifty miles an hour.”

The liquor-control board instructed Kleiman and his associates at botec to submit research papers outlining the advantages and disadvantages of rival approaches to legalization. They were to be paid two hundred and ninety-two dollars an hour. In the spring and summer, Kleiman’s team engaged in the often surreal enterprise of conducting market research on a black market: producing reports on the number of active marijuana users in each county; estimating how many retail cannabis outlets would be needed to serve that population; assessing how various tax schemes might affect the price of the drug. They also investigated protocols for “product quality standards and testing.” Kleiman’s mandate was to offer officials options, rather than prescriptions. But he has a lot of opinions, and does not excel at hiding them.

If Seattle has welcomed the legalization of marijuana with utopian optimism—a conviction that Washington’s experiment will eventually sweep the nation—then Kleiman can seem like a total downer. Allergic to cant, he speaks with the bracing candor of a scientist in a disaster movie, and appears to derive grim pleasure from informing politicians that they have underestimated the complexity of a problem.

The council meeting took place at City Hall, a glass-and-steel building overlooking Puget Sound. Council members sat around a long table, looking scrubbed and upbeat, as Kleiman—a large man of sixty-two, with a lumbering gait and an unruly gray beard—took a seat before a microphone. “One of the ideas that has actuated the cannabis-legalization movement is that law enforcement really has bigger fish to fry,” he said. “We’d rather have cops chasing burglars than pot sellers. And that’s a reasonable viewpoint.” He paused. “But the implication of . . . a legal commercial market is not that you need less enforcement.” The city councillors looked anxious. “That’ll be true in the long run,” Kleiman allowed. “In the long run, there shouldn’t be much of an illegal business. . . . In the short run, though, the answer is just the opposite.”

When legal marijuana goes on sale, sometime next spring, the black market will not simply vanish; over-the-counter pot will have to compete with illicit pot. To support the legal market, Kleiman argued, the state must intensify law-enforcement pressure on people who refuse to play by the new rules. A street dealer will have to be arrested in the hope that “you will migrate that dealer’s customers into the taxed-and-regulated market.”

Officials in Washington had been expecting a peace dividend, yet Kleiman was calling for a crackdown. It was the kind of logical argument that nobody wants to hear. Not even law enforcement: to a narcotics detective, pot legalization can feel like an existential affront. As if to deepen the insult, tax revenue from the sale of legal cannabis will be devoted to substance-abuse prevention and research—not to police or prosecutors. Who, then, was going to pay for such a crackdown? Although Kleiman urged state officials to set aside funds for increased law enforcement, he can get impatient with such complaints. He likes to say, “You don’t get any of the revenue for arresting robbers, either.”

He left the city councillors with a warning: without intensified law enforcement, pot legalization might not succeed. “The illicit market is a paper tiger,” he concluded. “But a paper tiger doesn’t fall over until you push it.”

As an undergraduate at Haverford, Kleiman was a triple major in political science, economics, and philosophy, and he readily concedes that he analyzes things to death. His friend Phil Heymann, a professor at Harvard Law School, recalls having lunch with Kleiman at a university cafeteria. Kleiman launched into an impromptu analysis of the arrangement of the buffet tables and the traffic patterns of his fellow-diners, riffing on the optimal layout for the efficient allocation and consumption of lunch. “There’s a puzzle-solving quality to Mark,” Heymann says. “He loves to think through the decision theory of everything.”

“Russia’s always bigger than you think.” 

Jonathan Caulkins, a professor at Carnegie Mellon, worked with Kleiman in Washington. In drug-policy circles, he says, Kleiman is known as a prodigious generator of unorthodox solutions: “Not all of these ideas turn out to work in practice, but a lot of what happens in the whole field is Mark throws out an idea and then we all investigate it, check it, respond to it.” Kleiman has never been married and has no children, which allows him to crisscross the country, bestowing policy advice, most often on matters of criminal justice. This year, he is on track to hit a hundred thousand miles.

Kleiman prides himself on being unconstrained by fixed ideas, and tends to discuss policy as if it were an engineering problem—a dispassionate tabulation of costs and benefits. He has been fiercely critical of the excesses of drug enforcement, but he also distrusts the unfettered libertarianism of those who would like to see all narcotics legalized. Harold Pollack, the co-director of the University of Chicago Crime Lab, says, “Mark has a kind of iconoclastic credibility that comes from the fact that he doesn’t fit neatly into the usual ideological camps you find in criminal-justice policy.”

Ethan Nadelmann, the executive director of the Drug Policy Alliance, a national group that advocates the decriminalization of all drugs, is more skeptical. “Mark has always caricatured the drug debate as the hawks on one side and the doves on the other, and he’s the wise owl sitting in the middle,” he says.

Although Kleiman has consistently pushed for a relaxation of cannabis laws, on the ground that marijuana is less harmful than alcohol and that the war on drugs has not worked, he has expressed wariness about full legalization, which he once described as “a heavy wager on a coin flip.” As recently as 2010, he condemned a ballot measure to legalize the commercial sale of marijuana in his home state of California. In an op-ed in the Los Angeles Times, he observed, “The only way to sell a lot of pot is to create a lot of potheads—not casual, moderate recreational users but chronic, multiple-joints-per-day zonkers.” The initiative was voted down.

But as the costs of prohibition accumulated—and legalization began to seem not just possible but inevitable—Kleiman began to reconsider his views. “We’re now in 1928,” he told me, likening this moment to the final days of alcohol prohibition. “It’s about to collapse under its own weight.” He was uniquely positioned to offer guidance. “Mark has the advantage that he’s been thinking about these questions for decades,” Thomas Schelling, the Nobel Prize-winning economist, told me. “He is the best there is on drugs.” Last March, when Washington’s liquor-control board announced the appointment of the botec team, Kleiman wrote in a blog post, “All the claims we’ve made over the years about knowing how to make smart drug policy are about to be put to the test.”

Cannabis is the most widely used illicit drug on the planet. For millennia, it has been cultivated for both its medicinal and its psychoactive properties. Ancient Chinese texts recommend the plant as a surgical anesthetic. Herodotus describes the Scythians inhaling cannabis fumes, then shouting in ecstasy. In America, cannabis became illegal only in 1937, and the ban has never been especially effective. According to a Pew poll, more than thirty million Americans have used pot in the past year.

Before Kleiman entered academia, he worked in the government. In 1979, he joined the Department of Justice, where he wrote a series of memos arguing that aggressive enforcement of marijuana laws would be counterproductive. At the time, most pot in America was a low-potency product from Mexico; when U.S. authorities tried to impede smugglers, they succeeded mainly in driving up the price, which enriched the smugglers without significantly dissuading users. Moreover, by squeezing the supply from Mexico, U.S. authorities inadvertently encouraged domestic cultivators, who produced more intense strains of the drug.

In 1980, ten per cent of high-school seniors reported daily use of marijuana, and Ronald Reagan denounced it as “probably the most dangerous drug in America.” As President, he quadrupled federal spending on drug enforcement. Kleiman continued writing memos, but nobody was paying attention. In 1983, he left government for the Kennedy School, at Harvard, turning his memos into a Ph.D. thesis and then his first book, “Marijuana: Costs of Abuse, Costs of Control.” Kleiman argued that, although legalization represented “a radical, near-complete solution to the problem of the illicit marijuana market,” it also risked “a potentially huge increase in the social costs of consumption.” A better solution, therefore, was not the lifting of prohibition but “a severe enforcement cutback.”

In 1996, California passed an initiative to legalize medical marijuana. Studies suggest that cannabis can help relieve the debilitating pain caused by chronic ailments and the nausea associated with chemotherapy. It was a decisive moment for the public image of the drug. “The only thing more potent than drugs as a negative symbol is cancer,” a medical-marijuana advocate told Kleiman at the time. “We’re going to make people choose between drugs and cancer. And they’re going to vote for drugs.”

Since then, nineteen other states and Washington, D.C., have passed similar measures. A 1991 survey found that only seventeen per cent of Americans supported fully legalizing marijuana. A Pew poll in 2010 showed that the number had jumped to forty-one per cent. By now, a majority of respondents favor the change. Young voters are twice as likely as the elderly to embrace legalization. Shifts in attitude are discernible even in conservative constituencies. The evangelist Pat Robertson recently told the Times, “We should treat marijuana the way we treat beverage alcohol.”

Alison Holcomb, a lawyer with the A.C.L.U. in Seattle, wrote the ballot initiative that became known as I-502. She told me that her public-outreach efforts had targeted moderate voters who were not necessarily cannabis consumers themselves. “The majority of people don’t like marijuana, but they also don’t like our laws,” she said. “So the message pivot is that you can support reform while not liking marijuana.” Holcomb highlighted the role of Mexican drug cartels, which have made billions of dollars by supplying the American black market, and have been responsible for more than sixty thousand deaths in Mexico in the past seven years. Murderous cartels may be an even more potent negative symbol than cancer.

In her campaign, Holcomb emphasized that Washington had successfully legalized medical marijuana, in 1998. Crime did not go up. The streets were not overrun with dazed potheads. Instead, the black market gave way to a quasi-respectable, if mostly unregulated, scene.

One afternoon, in the comfortable Seattle neighborhood of Capitol Hill, I visited Muraco Kyashna-Tocha, who runs Green Buddha, one of the oldest medical-marijuana dispensaries in town. A woman in her fifties with short gray hair, she answered the door in yoga wear, a giant white cockatoo balanced on her shoulder. “Come on upstairs,” she said. “I’ll show you my grow.”

Kyashna-Tocha has been cultivating marijuana for more than half her life. For many years, she did it illegally, until she was ratted out by a landlord, and busted, in 1997. Although the charges were dropped, the experience traumatized her, and when Washington legalized the medical use of marijuana she went into the dispensary business. She sells high-end sinsemilla—unpollinated female cannabis flowers—to medical-marijuana patients. Kyashna-Tocha is a patient herself: she told me that she has a seizure disorder, degenerative disks, and lingering pain from old operations.

Upstairs, we entered a humid, windowless room. Thirty cannabis plants stood beneath a canopy of fans and lights. “I can pull twelve pounds a year out of this room,” Kyashna-Tocha said. She pointed at the bristly plants: “That’s an Alaskan Thunderfuck. That’s Lemon Haze. Feels like espresso. Really big buzz.” Talking to boutique cannabis growers can resemble an encounter with an earnest sommelier. There are two subspecies of cannabis, she explained: indica, which mellows you out, and sativa, which boosts your energy and gives you a buzz. She added, “I used a little sativa before you arrived.”

“Everything I know about being human I learned from animals.” 

In Washington, operating a dispensary is a legally ambiguous enterprise. Patients who obtain a “green card” from a sanctioned medical provider can grow up to fifteen cannabis plants. These users can pool their plants and form a collective, in which the growers are “reimbursed” for their costs. Kyashna-Tocha stressed that Green Buddha is nonprofit, adding that it generates only a modest income for her. But many medical outlets in Washington openly pursue profits. In a 2007 raid, Seattle police recovered fifteen hundred plants from the home of one dispensary owner. (The owner, who maintained that he represented twelve hundred patients, was not prosecuted.) Moreover, many “patients” are recreational users who have obtained a green card from a lax or unscrupulous medical provider. In 2010, Kyashna-Tocha told me, the state began allowing naturopaths to authorize cannabis patients, and “the whole scene completely blew out—you went from five dispensaries to sixty-five in, like, three months.” Some dispensaries stopped growing their own pot, because it was cheaper (if illegal) to import large quantities from California.

Kleiman considers the dispensary business to be farcically unregulated. “Anybody can make you a ‘patient,’ including a nurse practitioner,” he says. “I don’t think they’ve gotten to plumbers and veterinarians yet, but they’re getting there.” It’s not clear how dispensaries will fare once legal pot stores open. The framers of I-502, not wanting to alienate enthusiasts for medical cannabis, pointedly sidestepped the fate of the dispensaries and scarcely mentioned medical marijuana. Kleiman, however, was adamant from the start: he argued that the new regulated market was more likely to succeed if the state supplanted dispensaries with I-502 stores. Medical marijuana is not taxed, so it may remain cheaper than legal cannabis; Kleiman maintained that the solution was to make sure that only genuinely sick people could receive medical cards, and then set up the I-502 stores so that such patients could purchase pot tax-free.

One advantage of the I-502 stores is that their marijuana will be tested for mold, fungus, pesticides, and other impurities. The state’s dispensaries are not required to subject their product to such evaluations. Several years ago, Kyashna-Tocha established the Evergreen State Cannabis Trade Alliance, which encouraged dispensary owners to submit marijuana for testing, and issued a label for “patient-ready” weed. But her effort stalled: few dispensary owners were willing to incur the additional expense, and their customers were apparently untroubled by the possibility of impurities.

When Alison Holcomb started promoting the legalization initiative, the strongest opposition came not from law enforcement but from dispensary owners. “It was a horrible split that went right down the middle of this community,” Kyashna-Tocha said. She supported the measure, and wept with joy on election night. She hopes that the state can keep the new pot industry small. “Think microbrew,” she likes to say. At her house, she spoke excitedly about the possibilities of pot tourism: “I completely see bed-and-breakfast tours! You go to where the grow facilities are in the day, and then, toward dinnertime, you land in a couple of the stores and make your selection.”

Even so, Kyashna-Tocha conceded that many consumers are not attuned to horticultural subtleties. “Budweiser is what sells,” she said. The sativa seemed to be wearing off. She hoped to keep her dispensary alive by catering to connoisseurs, she told me, but legalization might well render her obsolete. “I may need to find a job about a year from now,” she said.

Relying primarily on survey data, Kleiman and his colleagues determined that Washingtonians consume a hundred and sixty-five metric tons of pot a year. The botec team concluded that Washington could accommodate this demand with approximately three hundred I-502 stores, most of them distributed along the Pacific Coast, where use is highest.

Kleiman’s team next addressed the vexing issue of price. Economic theory would suggest that prices in the black market—and even in the quasi-legal medical market—are artificially high, because there is a “prohibition premium” associated with products that are less than completely legal. You’re not just paying for the commodity; you’re compensating everyone who undertook risk in getting it to you. In Washington, legal cannabis should be cheap to produce. Growing costs are minimal, and curing marijuana is less costly than curing tobacco.

If you make cannabis too cheap, however, you run the risk of “diversion,” in which pot that is legal in Washington feeds the black markets in surrounding states. In a recent letter to the Department of Justice, a coalition of former drug-control officials warned that “diversion of the drug will explode” once marijuana becomes fully legal in Washington and Colorado. Alison Holcomb, the I-502 author, is untroubled by this possibility. She asked me, “If people in New York are smoking Washington marijuana, isn’t that better than smoking Mexican marijuana?” Diversion is another reason for Kleiman’s call for a law-enforcement crackdown: if the Feds determine that cheap weed is flowing out of Washington, they might shut the experiment down.

One way to raise the price of legal marijuana is through taxes. Under I-502, the state will take an excise tax of twenty-five per cent when the producer sells to the processor (unless the producer does the processing himself). Another twenty-five-per-cent tax will be imposed when the processor sells to the retailer. Finally, consumers will pay an additional thirty-five per cent or so in taxes at I-502 stores. Washington’s liquor-control board estimates that the state will receive up to two billion dollars in marijuana taxes over the next five years.

Kleiman has wondered out loud, “What if we threw a legalization and nobody came?” During the initial months of his contract, the liquor-control board maintained that outdoor cultivation of marijuana would not be permitted. But cannabis, like any agricultural product, takes time to grow. Unless illegally cultivated plants were grandfathered into the new system, the I-502 stores might not have sufficient inventory when they opened. Kleiman and others pushed the board to allow outdoor plants, which have a higher yield, and to create a “path to citizenship” for cannabis plants that had been grown illegally. Troubled by the prospect of pot shortages, the board eventually relented on both points.

Early in the summer, Kleiman projected that legal cannabis in Washington will initially sell for at least forty-two dollars for an eighth of an ounce. Outdoor growing will lower that figure, but probably not enough to undercut street dealers. Ben Schroeter, who goes by Ben Jammin, has been selling pot in the Seattle area for forty years, and offers high-quality, locally grown product for twenty-eight dollars an eighth. He sells weed from California at twenty dollars an eighth. Some customers may be willing to pay a premium for the convenience, and the peace of mind, associated with buying legal pot that has been tested for impurities. But Ben Jammin says, “I assume that a lot of people are still going to come to me.”

At the city-council meeting in Seattle, Kleiman said that the tax scheme outlined in I-502 was rigid and shortsighted. Because of the state’s heavy surcharges, legal marijuana will likely be more expensive than the illicit equivalent; but, as production costs plunge, legal pot will become much cheaper. “We’re gonna have a tax that starts too high and winds up too low,” Kleiman said. He laid out a better approach: “The optimal tax system . . . if I were doing it on a blackboard, would have been somewhat homeostatic. You’re looking to maintain a price maybe a little bit below, or a little bit above, the current illicit price. And, therefore, you’d like to have the tax be low at the beginning . . . and rise as the cost in the industry falls.” The state didn’t reconsider its tax plan, however; the prospect of an immediate windfall was perhaps too tempting.

One group is definitely not coming to Washington’s legalization party: minors. Scientific evidence suggests that marijuana poses few long-term health risks to adults but can harm adolescents whose brains are still developing. The liquor-control board has made it a priority to keep people under the age of twenty-one out of I-502 stores. But, according to some studies, a quarter of marijuana consumers are underage. Kleiman told the city council that it would be better for children to get marijuana from parents or friends who buy it at I-502 stores than to obtain it through the black market, because of the testing and the quality control. Moreover, if kids keep resorting to the black market, they will sustain the criminal enterprises that I-502 was designed to eliminate. “Once you have a licensed-store system, you should expect—and in fact want—most of the pot that goes to kids to go through that system,” Kleiman said, adding, with a seditious grin, “You can’t say that out loud. But I can.” Young people who can obtain a green card already purchase pot from dispensaries. “Nineteen-year-old kids on skateboards with a medical-authorization card,” Ben Jammin told me. “That’s the cash cow now.”

“You’re amazing! Where do you even the time to shave your legs?” 

The morning after Kleiman’s presentation at the city council, I drove to Tacoma to meet with Jay Berneburg, a lawyer who works exclusively on pot cases. Along the way, I heard a radio report on Kleiman’s presentation, which highlighted his call for a police crackdown.

In the reception area outside Berneburg’s office, I spotted a bowl of matchbooks. Each one was emblazoned with his phone number and the words “Drive Fast, Take Chances, Call Collect.” Berneburg is in his fifties, and has a ponytail and wire-framed glasses. His voice has an ebullient rasp, and he walks with a piratical swagger. “I have two hundred dispensary clients,” he told me, before catching himself. “Well, I represent collective gardens.” Many of Berneburg’s clients have worked in the marijuana industry for decades. When the liquor-control board starts issuing licenses, he told me, his clients will have to decide whether it’s worth it to “come in from the cold.”

He introduced me to a client—a longtime grower who asked that I not use his name. The man planned to apply for a license to grow pot, but complained that, because of all the taxes and restrictions, he’d have to “grow more to make less money.” Berneburg said that many of his clients are ambivalent. “I can get a bag of weed as easy as I can get a dozen eggs,” he said. “That’s the way it has been, and that’s the way it will be. The black market’s not going anywhere.”

Allen Ginsberg once suggested that the paranoia that sometimes results from smoking marijuana is an effect “not of the narcotic but of the law.” Berneburg and his clientele are dubious about the state’s intentions, and Kleiman’s presentation to Seattle’s city council did not help matters. “We’re going to have the toughest enforcement in the country to make our legalization plan work?” Berneburg sputtered. “That is ass backward!”

In his view, Kleiman’s proposal was driven not by high-minded policy considerations but by the logic of the street: “Look at what a thug will do for a thousand dollars. The state wants to make millions! I’m predicting a bloodbath, as the liquor-control board tries to capture market share. We’re going to see some weird shit go down.”

Berneburg began talking feverishly about jackboots and mass resistance, and I was reminded that part of the allure of cannabis is its historical connection to the counterculture. Berneburg recalled, “I was at a Grateful Dead concert once when I was a graduate student. I complained that there were cops there. And the guy I was with said, ‘It wouldn’t be any fun without the cops. If there wasn’t that risk and danger, who the fuck would care?’ ”

When Kleiman is not on the road, he lives in the Brentwood neighborhood of Los Angeles, in a book-lined apartment overlooking a narrow courtyard. After I arrived there one morning, Kleiman prepared coffee, though he doesn’t drink it himself. In another departure from convention, he prefers hot chocolate, even in high summer. “I like chocolate, and it’s a stimulant,” he explained.

In 1995, after many years as a lecturer at Harvard, Kleiman moved to U.C.L.A. He enjoys the West Coast, but his pallor marks him as an outsider. He grew up in a Jewish enclave of Baltimore, where his father was a surgeon, and he misses the East Coast, where his ardor for policy is less exotic.

When I asked Kleiman about his experience with marijuana, he replied, “If you do drug policy and you’re asked whether you use drugs, you’ve got two choices. You can say, ‘Yes, I’m a lawbreaker. Please come arrest me and ignore everything I say, because I’m a bad person.’ Or, ‘No, actually, I don’t know what the hell I’m talking about.’ Since neither of those is an advantageous admission, I don’t answer the question.”

He was more forthcoming about psychedelics. He told me to look up a YouTube video that captures a raucous conference organized in 1990 by the Multidisciplinary Association of Psychedelic Studies. Kleiman, appearing alongside Timothy Leary and Ram Dass, wears a tie-dyed T-shirt and speaks about a future of “performance-enhancing” drugs. Kleiman told me, “I’ve never met anybody who used cocaine thirty years ago and says, ‘You know, I really learned a lot from my cocaine use.’ But you know the Steve Jobs quote about how Windows would be a better operating system if Bill Gates had dropped acid just once?” One of Kleiman’s books is called “Against Excess”—the title refers both to the war on drugs and to drug use. Leary, he told me, was undone by excess: “The tragedy of the sixties is that people managed to apply the drug-use practices of an Irish drunk to a very different chemical.”

In 1986, Kleiman and a collaborator, Peter Reuter, published a seminal paper, “Risks and Prices,” which argued that the drug trade should be analyzed not as a moral issue or a justice issue but as a market that is dynamic and adaptive. After the paper was published, Kleiman told Reuter, “We’re monopolists in selling drug-policy analysis. If only there were a demand for it, we’d be rich!”

Kleiman and Reuter garnered an academic following, and more scholars adopted their rigorously empirical approach to drug policy. But Kleiman achieved his first mainstream policy victory only recently, for advancing an idea called “swift and certain.” Traditionally, criminals who have been placed on probation or parole are subjected to random drug testing. A failed test is a violation, and offenders sometimes receive extended jail sentences. But the timing of tests is sporadic, and many probationers take their chances and use drugs, either because they can’t control themselves or because the minimal likelihood of a test encourages risk. For decades, Kleiman argued that it would be better to schedule frequent drug tests for people on parole or probation, followed by relatively minor sanctions for those who fail. The idea was unpopular both with policymakers who wanted to severely punish drug use and with those who viewed addiction as a medical condition. Then, in 2004, a judge in Hawaii instituted a pilot program mirroring the swift-and-certain approach. People in the program were significantly less likely to use drugs when they knew they would be sanctioned for it, even minimally. And Hawaii’s criminal-justice system saved money, in part by reducing the number of prisoners serving long-term sentences. In 2010, Kleiman promoted the idea in a widely praised book, “When Brute Force Fails,” and other jurisdictions across the country—including Seattle—adopted the program.

Kleiman is gratified by this belated success, but he is frustrated that most drug policy remains influenced more by ideology than by data. There are few reliable studies about the dynamics of the illegal drug market, and scientists are shockingly ignorant of the pharmacology of cannabis. The Controlled Substances Act placed marijuana in the most restrictive category of narcotics, which meant that it had “a high potential for abuse” and no medicinal value. When scientists have sought to study, say, the role of cannabis in easing pain or diminishing seizures, they have faced considerable difficulty obtaining plants for testing.

Only one facility in the U.S. grows marijuana for scientists: the Coy W. Waller Laboratory, at the University of Mississippi. Established by the government in 1968, it can produce hundreds of pounds of pot in a year. During harvest season, armed guards patrol the facility. In order to obtain weed from Waller, academics must first seek approval from the Department of Health and Human Services and from the Drug Enforcement Administration. Although these entities have enthusiastically supported research into marijuana’s dangerous properties, they have been wary of inquiries into possible benefits of the drug. A few years ago, a team of researchers developed an experiment to explore whether cannabis eased post-traumatic stress in combat veterans. The team was denied access to pot from Waller. Kleiman calls such incidents “a disgrace.”

“Do you, Ashley, take Nesbitt and his genome to be your husband?” 

In a 2012 federal survey, ten million people reported having driven under the influence of an illegal drug in the previous year, most commonly marijuana. Alison Holcomb decided that I-502 should include provisions for testing drivers for drug intoxication. But scientists know little about how the key components of marijuana—tetrahydrocannabinol (THC) and cannabidiol (CBD)—affect different users. So Holcomb opted for a blunt test: if you are stopped while driving erratically, and your blood contains five nanograms of active THC, you will be issued a D.U.I. citation. The number is arbitrary: because marijuana affects users differently, the presence of a certain level of THC in the blood does not correlate predictably with a level of impairment. And if you are only an occasional user your THC level tends to drop rapidly about an hour after ingestion, whereas if you are a regular user the chemical can linger in your system for days. Because many medical users consume cannabis daily, the Washington test could have the practical effect of barring sick patients from the road, even though their heightened tolerance may leave them unimpaired.

No one is happy with the solution. The Marijuana Policy Project, a national organization urging reform of cannabis laws, argues that the THC test “criminalizes sober drivers.” Studies co-authored by researchers at the National Institute on Drug Abuse, meanwhile, suggest that a five-nanogram baseline may be too permissive—that impairment is possible with lower levels of THC. Kleiman points out that a blood test for THC cannot tell authorities whether the driver took a puff five minutes or five days ago. “You’d need some fairly fancy chemistry with metabolites to determine when the subject used,” he told me. “A mouth swab might work, but that remains to be developed.” (Some of the tax revenue from legalization will fund research on marijuana intoxication.)

The lack of a proper test is symptomatic of a larger problem. As Kleiman puts it, “We have done essentially no research about the effect on individuals of different mixes of chemicals.” I-502 declares that each legal pot plant should be traced and tracked “from seed to sale.” Bureaucrats seem to agree that cannabis should be sold with a label describing the drug’s effects. But if you don’t have the science, what do you put on the label?

Increasingly, consumers are moving away from smoking pot and shifting to extracted oils, concentrates, and “edibles” such as pot-infused cookies. Kleiman sees this as a potentially promising development: if you knew the precise quantity of THC in an edible, you could design the product so that it contained segments, as in a chocolate bar, and inform the consumer about the buzz he might anticipate from each piece. “We need to know at least as much about cannabis as Pillsbury knows about brownie mix,” Kleiman likes to say. “And we don’t.”

This summer, the liquor-control board held dozens of public meetings across Washington, soliciting input about I-502. In the eastern part of the state, which is more conservative, board members were lambasted for flooding the community with drugs. In western Washington, they were decried for being too stringent. When I asked Randy Simmons, the I-502 project manager, to describe the hearings, he said, “A circus.”

One such meeting was held on August 6th, in a cavernous event space near Seattle’s Space Needle. A crowd of about a hundred assembled to hear the board members give short presentations. Citizens then approached an open mike. One speaker introduced himself as Arthur West. A medical-marijuana advocate, he began reading aloud from a six-page statement denouncing the board. The board members whispered in anxious consultation. Then Sharon Foster, the chair, announced, “Mr. West has filed a lawsuit against us. So, given that, we will not respond.”

The next speaker was a paunchy man in his sixties. “My name is Steve Sarich,” he said. “I have not filed a lawsuit against you—yet.” The crowd laughed. Sarich is well known in Seattle. He is an erotic photographer turned pot impresario who operates a dispensary; until recently, he also ran a company that makes edibles and a service for obtaining medical-marijuana authorizations. The 2007 raid that recovered fifteen hundred cannabis plants took place at Sarich’s home. He was one of the loudest opponents of I-502, which, he claimed, would enable the government to persecute cannabis patients through the D.U.I. provision. Several people suggested to me that Sarich’s opposition was driven by a desire to play the provocateur—and to protect his position in the medical-marijuana market. He turned to the room and announced, “I can guarantee that you’ve been lied to when they say, ‘We are not looking to take over medical.’”

Foster was looking haggard. “Truly, folks,” she said. “We do not have a role in medical marijuana at this time, and we don’t know if we ever will.”

A tall, gray-haired man introduced himself as John Dickinson. He announced that, at six earlier forums on I-502, he had incorrectly said that he was once the largest importer of hashish in the country. In fact, he had been No. 2.

“Thank you,” Foster said, tightly.

Dickinson was not finished. Referring to the pot that will be sold at I-502 stores, he said, “I heard out in the hallway that you were going to put a limiton how high the THC will go.”

“Rumors abound,” Foster said.

Dickinson noted that some countries, like the Netherlands, had considered banning strains whose THC content exceeded fifteen per cent. “Is there any word about limiting the THC level?” he asked.

“No,” Foster said.

“Good!” Dickinson exclaimed, smiling. “Because I was going to share with people the strongest marijuana in the world.” He held aloft a baggie of weed, to laughter and applause. “It’s twenty-nine per cent!”

Another speaker was Linzy Burton, a drug-treatment counsellor for young people. A middle-aged black man, he stood out in the crowd. The proponents of legalization in Washington appear to skew white and middle class, but the population of users is considerably more diverse.

“My family has a history of drugs and alcohol,” Burton began. “Everybody knows that marijuana is one of the gateway drugs.” This claim has been comprehensively debunked, and there were some groans of protest. But Burton persisted. He said that in the south end of Seattle, where he works, there was already a heavy concentration of medical-marijuana establishments, many of them near schools. “How many more storefronts will be allowed to open up in our community?” he asked.

One of Foster’s colleagues assured him that I-502 would not permit many stores to open in a single neighborhood. Burton had more to say, but Foster reminded him that there were many others waiting to ask questions. He pointed out that prior speakers had been permitted to ramble, and that he was one of the few attendees who represented “the youth.” He began to shout. “There’s people here who want to make money on this! People like me will be dealing with the fallout.”

This past spring, a former Microsoft executive named Jamen Shively held a press conference in Seattle. Announcing his intention to raise as much as a hundred million dollars and invest it in the pot business, he proclaimed, “Yes—we are Big Marijuana.” The national pot market may exceed thirty billion dollars, and a wave of media stories this spring heralded the birth of a new industry. A headline in Vice: “get rich or high trying.”

Investors, prospectors, speculators, and salesmen are scrambling to join the so-called Green Rush. At investment summits, marijuana entrepreneurs pitch potential angel investors. The continued taboo on cannabis can give these proceedings a strange vibe. At one summit I attended, in a Manhattan office tower, people pitching startups wore tags with their full names, whereas potential investors wore tags that said only “Rick R.,” or “John T.,” as if they were members of an addiction support group.

When Kleiman learned of Shively’s press conference, he wrote a lacerating blog post: “It was inevitable that the legalization of cannabis would attract a certain number of insensate greedheads to the industry. And I suppose it was also inevitable that some of them would be terminally stupid.” Kleiman believes that the negative social consequences of legalization may be severe if profiteers can turn cannabis into a largely unregulated commercial product. He suggested to Washington’s liquor-control board that it limit the volume that any individual grower can produce under I-502, in order to curb the “power of large producers.” In October, the board announced that the largest producers will be limited to growing marijuana fields of thirty thousand square feet.

Because marijuana remains illegal under federal law, Kleiman is highly skeptical of the Green Rush. “Making money by selling marijuana is a very risky proposition,” he told me. “Making money by fleecing investors is much safer.” (The Financial Industry Regulatory Authority recently issued a warning to investors about “marijuana stock scams.”)

“I’m a bird dog.” 

Under I-502, new pot businesses cannot be vertically integrated: growers and processors must remain separate entities from sellers. This provision is aimed, in part, at preventing a single business from dominating the industry. But boosters for the new pot economy have taken to citing an adage attributed to Mark Twain: “When everyone is looking for gold, it’s a good time to be in the pick-and-shovel business.” So-called ancillary businesses are not barred by federal law, and the most careful investors are focussing on these markets.

Brendan Kennedy and Michael Blue run a private-equity firm, Privateer, that invests in the “cannabis space.” They met at Yale’s business school, and take pride in looking painfully square: they are clean-cut and athletic, and most days they wear suits. When I visited them one day, in a borrowed conference room in Seattle, they were making a pitch to a potential investor who had flown in from Chicago. The investor, concerned that word might get back to his professional circle in the Midwest, asked that I not divulge his name.

The cannabis market, Kennedy informed the investor, is already “bigger than corn.” He added, “The objective is to build a vertical conglomerate of companies in the medical-cannabis industry and, ultimately, the cannabis industry.”

As long as selling pot remains illegal under federal law, any business that is openly connected to the trade will find it difficult to put its money in a bank, because financial institutions do not want to risk the legal exposure. According to the National Cannabis Industry Association, fewer than half the medical-marijuana dispensaries in the U.S. have bank accounts. They struggle to make payroll, and have trouble paying taxes. One dispensary owner told me about taking seven thousand dollars in cash to theWashington Department of Revenue, to pay his monthly tax bill. He was turned away, because the teller refused to deposit his “drug money.”

Privateer has had its bank accounts shut down more than once. But, Kennedy explained to the potential client, the firm does not “touch the plant” when making its investments. Privateer has so far acquired only one company, Leafly, which aims at becoming the Yelp of cannabis—a sleek online guide to strains and dispensaries. Privateer recently closed a seven-million-dollar round of funding, which it intends to invest in other ancillary businesses, so that when pot becomes legal nationwide it can assume a dominant position in the market for cannabis itself.

In the interim, Kennedy said, he and Blue planned to “professionalize” the industry, starting with its image. They disdain iconography involving cannabis leaves or Bob Marley. Leafly’s Web site presents pot varieties in a grid that wittily alludes to the periodic table. Kennedy and Blue have sought advice from the Seattle marketing company Heckler Associates, best known for inventing the name Starbucks. Scott Lowry, the Heckler executive who handles the Privateer account, told me, “When we started working with Starbucks, nobody was drinking upscale coffee. It was pretty much Folgers in a can.” The cannabis industry represents a similar opportunity, he said.

The investor had a question. If marijuana became legal across the U.S., wouldn’t the price plummet, decimating profits? Before Kennedy and Blue could respond, he supplied the answer himself: “Volumes are going to go up, right?”

Kennedy and Blue exchanged an awkward glance. Then Kennedy told the investor, “I think volumes will go up.”

This is the most politically delicate aspect of Privateer’s sales pitch: the unspoken premise that legalization will probably entice more Americans to use marijuana. Presumably, there are potential consumers who do not use cannabis today because it is illegal, or because they don’t want to navigate the black market or obtain a dubious medical recommendation. For others, the process of legalization may diminish whatever stigma they associate with the drug. If legalization lowers the price of pot, some people may choose it over other intoxicants, like beer. One of Kleiman’s research papers suggests that kids are very likely to be “price sensitive,” as are chronic users and the poor, because cannabis “forms a larger share of their household budgets.”

If you’re looking to invest in marijuana, all this is good news. But Kleiman finds it troubling, from a policy perspective. He has long argued that the problem with legalizing any vice—whether it be alcohol, nicotine, or gambling—is that “addiction is where the money is.” Twenty per cent of the Americans who drink account for almost ninety per cent of all alcohol consumption. It cannot be news to beer and liquor companies that their key demographic is the problem drinker.

According to surveys, people who use marijuana “more than weekly” account for roughly ninety per cent of cannabis consumption. A rand study indicates that this trend is increasing: the number of “use days” reported by the heaviest consumers has risen markedly in recent years. Marijuana may not be physiologically addictive—you don’t go into severe physical withdrawal if you abruptly stop using it—and no one has ever died of an overdose. But even the most ardent advocates of legalization generally concede that it can become a problematic habit for some users. According to the National Survey on Drug Use and Health, more than eight million people reported trying to reduce their marijuana consumption in 2011.

The big riddle, Kleiman believes, is whether marijuana might become a substitute for alcohol. He would be happy if a switch to cannabis caused a decline in drinking. Alcohol use has far more detrimental social costs than marijuana use, by virtually any measure: addiction, accidents, violence, illness, death. But what if users instead “complement” alcohol with pot? A recent paper in the Journal of Policy Analysis and Management suggests that, “as marijuana becomes more available, young adults in Colorado and Washington will respond by drinking less, not more.” But the truth is that scholars have done almost no research on consumer preferences involving marijuana and alcohol, and how they might change under full legalization.

Kleiman is fond of saying that the U.S. government should triple taxes on alcohol. In his dealings with Washington’s liquor-control board, he did little to hide the contempt he feels for the country’s lax regulation of alcohol, and he warned that I-502 blindly applied the state’s alcohol policies to marijuana. “The alcohol model is a very, very bad model that’s had very, very bad outcomes,” Kleiman told the board. “We shouldn’t want to do that again.”

One afternoon this summer, Kleiman went to Washington, D.C., to attend a symposium on legalization hosted by the National Institute of Justice. In a speech, he said, “The primary impact of legalizing cannabis is there will be probably six hundred and fifty thousand fewer arrests every year and forty thousand fewer people behind bars. And there will be an additional . . . fifteen billion stoned hours.” He looked out at the half-empty auditorium. “You have to decide whether a stoned hour is a good thing or a bad thing,” he went on. “That decision is going to drive a lot of your judgment about whether legalization is a good idea or a bad idea. But, even if you had your values straight, you’d have to know the facts. And we mostly don’t.”

For years, Kleiman’s resistance to outright legalization was based, in part, on a fear that commercialization of the drug could triple its use. But when he arrived in Washington State he proposed an audacious solution. In order to curb problematic consumption, you could introduce a license for using cannabis. We issue licenses to drive a car or to own a gun—why not a license for consuming recreational drugs? Any adult could obtain such a license, and the license could stipulate a quota for personal monthly use. This quota would be set by the user, and could be large or small. But, once the consumer had set a quota, it could be changed only in writing—with a month’s notice. Such an innovation could counteract the dangers of excessive, impulsive use by encouraging individuals to set their own limits. Users could set very high quotas for themselves, of course, but the provision would nudge at least some citizens into being more responsible. To work properly, a personal-quota system would need a central database of marijuana users, which would allow I-502 stores to determine if customers were trying to exceed their monthly allotments.

Kleiman’s solution was ingeniously eclectic—a hybrid that balanced individual liberty and state control. Nobody liked it. He floated the idea to the liquor-control board, but its members never seriously considered it. “In their liquor-board hat, they don’t think of themselves as having primarily a drug-abuse-control mission,” he said to me. “Their job is to make sure the taxes are paid, hours are observed, and no direct sales are made to minors. The idea of a personal quota has no place in that system.”

Phil Heymann told me, “Mark’s instincts are not to think too much about political feasibility. That would be a waste of his talents.”

At the symposium in D.C., Kleiman told the audience that his greatest worry about I-502 was advertising. What could the type of marketing that turned millions of Americans into Starbucks addicts do with marijuana? I-502 will restrict advertising near schools, and campaigns cannot be aimed at children. But the Supreme Court has interpreted the protections of the First Amendment to extend to “commercial free speech,” and a ban on advertising a legal product might be deemed unconstitutional. For Kleiman, one flaw of I-502 is that the state will simply regulate stores owned by private individuals. It would be better for the state to own and operate the stores—that way, government officials could opt not to advertise at all. But states cannot order their employees to violate federal law, so state ownership is not yet an option. In any case, many states have eagerly marketed vice for tax money, most notably with state-run lotteries and casinos. Earlier this year, the liquor-control board unveiled a logo for Washington State marijuana, with a cannabis leaf superimposed on a map of the state. After an outcry that the state was “promoting” pot, the design was abandoned.

“I don’t like stores,” Kleiman told me. “Stores are basically marketing centers.” He tried to sell the liquor-control board on an alternative approach: home delivery of pot. Such services already exist for medical marijuana. But, to Kleiman’s frustration, the board rejected the idea. At the symposium, he said, “It’s very hard, in the somewhat Manichaean world of politics, not to go from ‘Cannabis is illegal and you should go to jail for selling it or using it’ to ‘Cannabis should be tightly regulated,’ without going all the way to ‘We should sell it like cornflakes.’”

Ethan Nadelmann, of the Drug Policy Alliance, thinks that Kleiman’s fears are overblown: when the Netherlands decriminalized marijuana, consumption levels rose, but they remained lower than in many countries where pot was prohibited. The popularity of the drug has risen and fallen over the decades, and nobody really understands why. If marijuana consumption goes up in Washington in the coming years, it wouldn’t be possible to attribute this shift entirely to I-502.

When I asked Alison Holcomb whether she could live with a big increase in marijuana consumption, she paused. Holcomb knows that legislators in other states are monitoring the experiments in Washington and Colorado. “Would it bother me if problematic use went way up?” she said. “Yes. Would it make me think that we should go back to treating it as a crime? No.”

After Kleiman’s speech, we walked to a coffee shop, where he ordered a hot chocolate. His work for the liquor-control board was drawing to a close, he told me. He and his botec colleagues had proposed several follow-up studies—“I think we have a way of measuring the cross-elasticity of demand between alcohol and cannabis,” he noted—but the board said that it had only so much money. “They are properly quite focussed on the nuts and bolts of getting rules out to the world, getting licenses issued, getting stores up, getting stuff into stores,” he said. “I think we did some good by sort of urging them to look beyond that.” In mid-October, a working group appointed by the state legislature proposed abolishing the dispensary business, tightening the system for authorizing medical-cannabis use, and channelling patients into the I-502 stores—all ideas that Kleiman had proposed.

Still, I got a strong sense that his experience in Washington had not been entirely happy. By the time the liquor-control board hired Kleiman’s team, the state had only seven months left to construct a new economy. Officials had to barrel ahead, Kleiman told me, and did not have the time to integrate innovations such as personal licenses and home-delivery systems.

Randy Simmons, the I-502 project manager, observed that an academic can conceive regulations and mechanisms that seem brilliant on paper but is spared the need to reconcile that vision with “the real world of politics and all the different stakeholders and making different groups happy.” Simmons added, “They get to just say, ‘This is how we think it should be.’” When James Cole, the United States Deputy Attorney General, was asked recently about the Obama Administration’s decision to allow Washington and Colorado to legalize and regulate cannabis, he said, “There are no perfect solutions here.” It appears that I-502, like so many government programs, will be flawed from the start, and will demand patchwork modification in the coming years. One imperative of political life is that, at a certain point, you have to stop formulating a policy and start selling it, and when this transition occurred with I-502 Kleiman may have become an impediment. He is not one for the unequivocal endorsement. Yet, in his judgment, drug-policy questions are so complex that, if you are not at least somewhat equivocal, you aren’t thinking hard enough. He said of Washington’s state officials, “‘Complicated’ is not one of their objectives at the moment.”

For now, Kleiman will watch the rollout of I-502 from the sidelines, and blog about it. “It’s disappointing,” he told me. During one of our conversations, he paraphrased a famous joke about Hubert Humphrey: “Poor Hubert—he’s got solutions the rest of us don’t even have problems for.”

By January, Washington will have started dispensing licenses to grow and sell marijuana. Ben Jammin, the dealer, told me, “We’re not sure what’s coming—but it’s coming.” Kleiman is happy to see prohibition end, and he hopes that legalization is a great success, but he is no longer optimistic. He told me, “I think commercial production and sale of cannabis is going to end in tears.” ♦

Vía: https://www.newyorker.com/magazine/2013/11/18/buzzkill