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Thursday, January 16, 2014

Sincere marijuana reform question: exactly what are DEA officials "scared" of?

The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level."  Here is the context:

The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan.  “Every part of the world where this has been tried, it has failed time and time again.”

Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....

Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay.  “There are more dispensaries in Denver than there are Starbucks,” he said.  “The idea somehow people in our country have that this is somehow good for us as a nation is wrong.  It’s a bad thing.”

Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...

Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said.  “It’s going to cost us in terms of social costs.”

Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.

That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere.  Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual.  Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."

This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States.  The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming.  These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.

It is quite possible, as the DEA official suggests, that "this is a bad experiment."  But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared."  More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:

  • roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;

  • roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.

I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal.  But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments.  Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.

But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.

I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.

Posted by Douglas A. Berman on January 16, 2014 at 09:45 AM in Current Affairs | Permalink


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Doug, there is a standard set of arguments "pro" and "con" marijuana legalization, much of it based on predictions of harm. One side predicts that good things happen if marijuana is legalized, and the other side predicts that bad things would happen. My guess is that the DEA officials who are scared of what would happen if marijuana is broadly legalized are just thinking of the standard arguments on the bad effects predicted by those on the "con "side. For a summary of the arguments, see here: http://www.balancedpolitics.org/marijuana_legalization.htm
You may also find this wikipedia page helpful, although it is about drugs generally more than marijuana specifically:

Posted by: Orin Kerr | Jan 16, 2014 10:36:59 AM

Thanks Orin. This is my guess, too, but does any of the 8 listed bad effects in your link really "scare" you? Maybe I am too concerned with semantics here, but words matter, especially when we are fighting a "war."

I am scared of nuclear war, terrorism and the people I care about getting seriously hurt or sick. But I am not truly scared by the possibility, e.g., that "legalization would increase the chances of the drug falling into the hands of kids." Moreover, advocates of reforms have some statistics to suggest that legalization actually helps decrease access to drugs by the under-aged.

One reason I want more specification here is to know (a) whether the rhetoric of being "scared" is just political rhetoric or a true description of feelings, and (b) what are the SPECIFIC negative consequences DEA fears so those in particular can be most closely watched.

Notably, one item on the list you reference is purely moral (#3 "use of marijuana [is] morally wrong") and another is very paternalistic (#6 "Physical damage would be done to users that abuse the drug."). If these are the primary concerns/costs driving DEA officials to be scared, my assessment of their views is quite different than if their concern is drugged driving (#2) or second-hand smoke harm (#7) or wider use of harder drugs (#1). And, of course, sensible regulatory responses should differ depending upon the specific social harms driving the reasoned and informed fears of responsible officials.

Posted by: Doug B. | Jan 16, 2014 11:15:00 AM

I believe what the DEA is scared of is loss of their rent. If we devoted 75% of the money spent on drug enforcement and punishment to regulation and treatment, the DEA would lose all of its glamour and most of its jobs.

Posted by: Jack | Jan 16, 2014 11:37:57 AM

Doug, I can't tell if you're being serious, or if you're just poking fun at the pro-criminalization side by pretending not to even know what their arguments are -- sort of a "gosh, the other side's arguments are so totally dumb I really can't even figure out what they're even saying" rhetorical technique.

Posted by: Orin Kerr | Jan 16, 2014 11:44:25 AM

You do not have to have the same fears about a thing as others to understand that they may be legitimately afraid of something. If a person believes, as some research suggests, that marijuana use among young people has deleterious effects--lowering IQ, triggering depression and/or schizophrenia among individuals predisposed to those things-- you could be legitimately fearful of what that means when legalization makes usage more widespread, as it inevitably will.

Posted by: CHS | Jan 16, 2014 12:39:23 PM

CHS and Orin: I take it that Doug is not saying "what are they afraid of?" but rather "do they actually have good reason to be afraid?" The DEA's fears do not seem to anyone who is reasonably well informed on this topic to be justified.

I don't have a dog in this fight, but it's hard to find strong harm-reduction arguments (backed by evidence) in favor of criminalization. If you think it's a public health issue, the evidence is in favor of decriminalization and the DEA's fears are -- however real! -- pretty silly.

Posted by: bugaboo | Jan 16, 2014 1:03:49 PM

I do not agree that their fears are "silly". Not all mistaken notions are silly. If they fear a rise in consumption, as people who have been deterred from using because it is against the law( not everyone is sanguine about breaking laws and getting involved with people who do, I.e. sellers of drugs) , they could have legitimate concerns about what will happen when more young people are using. We do not yet know how big that number will be, and what that portends for the mental health profile of that group of young people. If the world of legalized marijuana comes to look like the world of legalized alcohol, where ubiquity makes access possible for teens and adults on a daily basis, it will embed a parallel track of problems that must be dealt with.

Posted by: CHS | Jan 16, 2014 1:52:55 PM

An observation: sometimes, our own views are so far away from those on the other side of an issue that we doubt the sincerity of the other side's expressed views and look for other motives for their expression -- e.g., "political rhetoric," as Doug floats, or financial self-interest, as Jack suggests. (To be clear, I am making a universal claim about human nature, not about any particular person, ideology, or side of any debate.)

I know nothing about DEA culture, nor do I have an especially strong or informed stance on pot legalization (though I confess I am looking forward to my next trip to Colorado). But in my experience with other regulatory and policy environments, while ulterior motives are certainly sometimes at play, people generally really do believe the moral-policy arguments they make, hard as those are for others to accept or, at times, even process. Yes, IRBs sometimes make decisions that can only be explained by a theory of regulatory capture, as when -- in the name of human subjects protection -- they reject or require changes to a protocol based on concerns about the copyright on an instrument researchers want to use -- something that could threaten the university with liability but poses no harm whatever to human subjects. But in general, IRB members, those who train them, and many scholars of research ethics really do believe that, for instance, paying subjects undermines their voluntary, informed consent (despite virtually no evidence in support of this proposition and some evidence to the contrary).

It's not hard to see why those who have devoted themselves to the task of protecting research subjects from research might find themselves on one end of a spectrum on these and similar issues, just as it's not hard to see why DEA agents would find themselves more "scared" than perhaps the average citizen (and certainly the average academic) of pot legalization: self-selection, tunnel vision, confirmation bias, etc. There's also a really interesting literature on "double risk aversion" that suggests that those tasked with making welfare decisions for third parties are more risk averse than when they make the same decisions for themselves. The phenomenon appears to be especially acute in health-related contexts. So, for instance, I would not be surprised to learn that a DEA agent both smokes pot and holds a sincere paternalistic belief that others should be protected from pot legalization.

Posted by: Michelle Meyer | Jan 16, 2014 1:58:35 PM

Bugaboo, if Doug wanted to use the post to argue against the merits of the DEA's arguments, he probably should not have written a post asking for "sincere" help to "really understand" what the arguments are.

Posted by: Orin Kerr | Jan 16, 2014 2:30:22 PM

Very helpful points, all, which in turn make me ever more eager to express my interest in hearing DEA officials explain which particular social costs are driving their fears. I am being serious here, Orin, because I do not think any of the standard arguments against reform are "totally dumb." Rather, it is that the standard arguments against reform are totally varied, both philosophically and empirically.

So, to highlight some of the comments already, I really want to know if the DEA's concerns/fears are principally about increased marijuana use among young people. If so, regulations in reform states could be focused on this concern: e.g., not only prohibiting sales to those under 21, but threatening the termination of a sales license to any dispensary whose marijuana product are regularly acquired by young people. Instead, if the biggest worry is drugged driving, we might consider prohibiting anyone with a drivers license from buying more than one ounce a month. And so on. And, as I noted above, some fears that others may consider not only legitimate, but very weighty, because of their religious or social background may or may not be as weighty in my mind. (E.g., I assume some devout Mormons for religious reasons may be troubled that so many Americans use/enjoy the stimulant drug of caffeine, but I do not think most Americans of other backgrounds would be quick to embrace fears expressed only by Mormons about the evils of Red Bull.)

For reasons Michelle highlights, I think there is a risk of significant cognitive biases at work (consciously and subconsciously) when DEA officials say they are scared by marijuana reform. Ergo, in order to better understand the basis for these feelings, I want them better explained to me. As I hoped my post made clear, I am not trying to play games or possum here, I am just really trying my best to better understand an informed and important public policy perspective on an issue that I have been thinking a lot about lately in my own research and teaching.

Posted by: Doug B. | Jan 16, 2014 2:32:44 PM

Thanks for the explanation, Doug. I don't know if Capra's answer is likely to be revealing of what the DEA things generally, as it is more of a weird personal rant than a careful explanation. But if you're interested, the full answer is here: http://www.youtube.com/watch?v=wGJjSKj4Pmw
As best I can tell, Capra seems to have a wide range of concerns, ranging from the role of organized crime to drug addiction to marijuana being a gateway drug to marijuana legalization having been a failure where it was tried. But his answer comes off as a weird personal rant, so I don't know if it is helpful to understand the viewpoint of the pro-criminalization side.

Posted by: Orin Kerr | Jan 16, 2014 5:30:36 PM

Thanks much for the link, Orin, as the excited discussion of Mr. Capra is really interesting. I would not call it a weird personal rant at all; I see it as a telling and emotional response by a long-time drug warrior --- I see he has worked with DEA for 27 years --- who seems truly stunned and deeply troubled that lots of folks are starting to seek to change laws based on the view that the drug war he has long fought is no longer worth fighting quite so hard.

What strikes me as most notable, and arguably most important in this discussion, is the ready linkage between marijuana and other illegal drugs like meth and the failure to see linkages to tobacco and alcohol. At one going, Capra say he is most troubled by those who seek to profit from addiction. Of course, the tobacco industry is right now the group making billion from addiction, and I (foolishly?) hope that we might undermine the power and harms caused by that industry if they are not the only legal smoking game in town.

Once again, thanks for the link and the broader engagement on an issue that I think really needs a lot more refined discussion and exploration among academics and researchers without any significant skin in the game.

Posted by: Doug B. | Jan 16, 2014 6:02:34 PM

Doug B., an important question is whether you can best identify the arguments on the other side by listening to a DEA official. The official goes after organized crime groups that are often involved in different drugs for a living, so he is likely to see drug legalization of a particular drug as approval of part of what the organized crime groups are doing. That is, he does enforcement, not criminology, so he's focused on whether the people he goes after are bad people; he's not particularly well suited to weigh in on the predictive question of what kind of people would be involved in marijuana production in a world where it is legalized.

Posted by: Orin Kerr | Jan 16, 2014 6:10:06 PM

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