Supporters of marijuana prohibition are confused. Newly confused, I should say, because they just don’t understand why marijuana legalization enjoys such widespread and increasing public support. It’s a crisis of faith for many of them, while for others it’s a new opportunity to shine, a new chance to show like-minded people how it is done. “It” in this context is how to oppose those legalizers, those sneaky folks in favor of legalization who are so gifted at fooling the public. Both reactions, though, produce the same result – more of the same old scare stories about marijuana.

Supporters of legalization, on the other hand, need to stay focused on some fundamental truths as they respond to the latest versions of reefer madness, the almost century-old tactic of using hysterical scare stories to justify marijuana prohibition. Here is one fundamental truth – the public policy debate over marijuana reform is not about marijuana, it is instead about whether or not people should be sent to jail or prison because they use cannabis for one reason or another. 

Of course the prohibitionists respond, often, that they agree that long jail terms are not fair, that most people are not sentenced to jail or prison for marijuana use, but that it should still be subject to criminal penalties as a way of sending the right message to society. But take the medical marijuana issue for example and consider this; a majority of the public does not believe that people who use marijuana for some therapeutic purpose are committing a criminal act. In academic terms, they don’t have the mens rea, the guilty mind, the criminal intent that justifies arrest, prosecution or sanction. It’s not really a matter of whether marijuana is medicine or not, it’s about whether using it as medicine justifies a criminal penalty.

Prohibition supporters are experiencing a lot of cognitive dissonance these days. Cognitive dissonance is a psychological term to describe the anxiety or stress people feel as the result of holding contradictory beliefs. In the case of supporters of marijuana prohibition the contradiction that’s stressing them out is between their beliefs that marijuana is harmful and their understanding that more and more of the public disagrees with them about this. Psychologists and psychology students can explore this notion further and speculate on how this problem may be addressed in terms of therapy. Here, the focus is on how this anxiety is expressed or manifest.

Case #1: Tom Gorman is the director of the Rocky Mountain High Intensity Drug Trafficking Area, a federal regional anti-drug task force. Mr. Gorman is worried that foreign drug cartels may infiltrate legal marijuana businesses in Colorado. He thinks that a) they are losing money because of legalization and therefore b) they will want a piece of the action, so c) they will try to extort their way into the trade by pressuring business owners. Here is how Gorman believes a business owner will react to this hypothetical pressure:

“They’re treacherous, and there’s no way when they show me a picture of my little girl walking to school that I am going to go to law enforcement, worrying about my family or my safety or blowing up my shop or whatever it is. I mean, they’re just treacherous. They have no morals. They do what they need to do to make money, so how do I combat that? I’m not gonna go to the cops. There’s no way I’m gonna go to the cops.”

Mr. Gorman is not clear in this interview what the relevance of this may be. Does this mean that Colorado shouldn’t legalize marijuana because it will provoke foreign drug cartels to drastic actions? Or does it mean that local, state and federal police should take steps to protect Colorado citizens from extortion?

Case #2Kevin Sabet is a former advisor to the Office of National Drug Control Policy who now teaches at the University of Florida College of Medicine. Dr. Sabet is an outspoken critic of marijuana’s legalization and has published several op-ed pieces on the subject. One of Sabet’s common themes is that contemporary marijuana reform measures are contributing to the creation of “Big Cannabis,” which is following the “Big Tobacco” model of lying to the public about the harm caused by its products in order to seek billions of dollars in profits.  Sabet thinks we need a new and improved approach to drug policy in which marijuana is illegal but people aren’t sent to jail or prison over it. He overlooks the resulting costs to society due to an unregulated illegal market, including, for example, the profit potential that attracts hundreds of thousands of teenagers to selling marijuana to their friends and contributing to pot’s under-age availability. 

The “Big Cannabis” reference, though, raises an interesting contrast with tobacco that is really not as useful as Sabet believes. There are several reasons this analogy breaks down on closer examination.

First, the health effects of marijuana are widely documented, much more so than the effects of tobacco ever have been. If anything, Americans are overwhelmed with information about the health effects of marijuana and have observed the impact of marijuana use for generations. Much of the public has decided the concerns Sabet and other have are reasons why marijuana should be regulated and controlled in a legal market.

Second, the tobacco market is an oligopoly, a market controlled by a few number of firms (two companies – Philip Morris and RJ Reynolds – control almost 75% of the market) and it is a market desperate for new customers – it targets the young because most adults are too well educated to use its products. The emerging marijuana market is a wide-open competitive market with no problem attracting adult users. Indeed, teenage users are a small and insignificant segment of marijuana user (about 10%). Tobacco is a product that is dependent on numerous additives to make it flavorful and pleasant to consume. Marijuana is a generic product, in which the natural product is what is brought to market (and this holds despite the emergence of edible products.) In fact, generic tobacco is a competitive threat to most tobacco companies. 

The biggest flaw in Sabet’s central argument is that current laws have utterly failed to control the cultivation of marijuana. Prohibition only works when the government can control the technology of production (policy wonks should look up what John Kaplan explained about this as far back as 1974 – an Oxford grad like Sabet ought to know this stuff). Marijuana is grown all over the United States; this is why prohibition is a failure and this is why using criminal law to control or reduce marijuana use is a failure. Additionally, this is why a regulated market is a better tool to address and minimize whatever harmful effects result from marijuana’s widespread use in American society. And this is why there will not be “Big Cannabis” similar to “Big Tobacco.” Production is, and will continue to be, so widespread that no monopoly, or oligopoly, can be formed.

There are other interesting cases out there. But most anti-legalization efforts have two things in common: they seek to scare people and they don’t hold up to critical examination. There are serious issues associated with the effort to legalize marijuana and they deserve and require public debate. Let’s start with the fundamental issue: should people who use marijuana be sent to jail or not? And if not, then is criminal law the best way to regulate marijuana’s production, distribution and sale? And if not, what is the public interest in this issue and what are our options? These are serious questions for serious people. Scare stories, on the other hand, just aren’t being taken seriously anymore. Just ask the public.