busted: america's war on marijuana
FRONTLINE's Interview with MARK KLEIMAN.  He is professor at the School of Public Policy and Social Research University of California, L.A.  He recently joined a group  of scientists, drug experts and public officials in proposing a new middle of the road approach to America's drug policy.  Interview conducted in the winter of 1997-98.
INTERVIEWER

How would you characterize the current state of debate in America over marijuana and how we approach marijuana law enforcement?

MARK KLEIMAN

There are two points of view about marijuana. One is that of all the illicit drugs, and of all the intoxicants including alcohol, marijuana is probably the least dangerous on a number of dimensions. Certainly, compared to alcohol, it is much less toxic and much less likely to lead to violence.

The other viewpoint is that marijuana is the illicit drug most likely to be used by juveniles, and that it is a much more dangerous drug than many people believe. In particular, it has a higher capture rate to addiction--a higher fraction of the people who use marijuana go on to use it heavily for a long time--than people give it credit for, though marijuana addiction is not, for most people, nearly as serious as chronic alcoholism can be.

So one point of view is why are we making this huge fuss about this relatively benign chemical? The other point of view is that eighth-graders shouldn't be using intoxicants. Too many of them have now started to use marijuana, and General McCaffrey said the other month that the most dangerous drug in America is marijuana in the hands of a 14-year-old.

Keeping middle-class kids from drugs has always ranked very high among the goals of American drug policy. It's never quite stated that way, but it's their parents who are organized into a powerful political force.

So one group looks at the broader drug problem and says, "We ought to be concentrating on heroin, cocaine, methamphetamine, and on alcohol and nicotine." And other people who say rising marijuana use among kids is a huge problem. It's hard to find anybody who gets really worried about marijuana use by adults. That's just not at the top of anybody's list. But because it's the most prevalent of the illicit drugs, especially among kids, it gets a lot of attention; maybe more than it deserves.

INTERVIEWER

What percentage of total illegal drug use in America is marijuana?

KLEIMAN

About 75% of the people who use any illicit drug, use only marijuana. And most of those people only use relatively small amounts of marijuana. When people talk about "drug users," what they have in their mind is often a junkie nodding off on a street corner or a hopped-up crack head. But most drug users, meaning illicit drug users, are occasional marijuana smokers.

That makes the whole discourse about drug policy sound very weird to anybody who actually knows the numbers; people have in their minds this notion of a drug user that just doesn't match has most people who actually use illicit drugs.

It's like many other situations where perceptions are distorted. A small number of people generate most of the problem, and they're the people you think about. But those extreme cases are by definition not typical.

INTERVIEWER

If you took marijuana out of the equation, what would be left in terms of the total illegal drug problem in America?

KLEIMAN

Well, the illegal drug problem is one thing; illegal drug users are a different thing. If you took marijuana out of the equation, you would be left with relatively few--several million illicit drug users. You'd still be left with more than 85% of the total revenues of the illicit drug business. So the vast number of marijuana users don't account for much of the total dollars spent.

The same thing is true if you look among marijuana users. The couple of million who stay stoned all day, every day, account for the vast bulk of the total marijuana consumed, and thus the total revenues of the illicit marijuana industry. That's typical. The money in any drug, including alcohol, is in the addicts, not the casual users. There was a big fuss during the 80s about how much casual middle-class drug use there was and how respectable folks were supporting the markets. It's certainly true that most people who are illicit drug users are employed, stable respectable citizens. But it doesn't follow that if we could get the employed, stable respectable citizens to stop using illicit drugs, the problem would mostly go away.

That turns out not to be true; the problem is concentrated in a relatively small hard core. Four-fifths of the cocaine consumed in this country is consumed by about 2.5 million very heavy cocaine users. All the rest of the cocaine users, the bulk of the survey reported cocaine use, accounts for very little quantity. We use about $30 billion a year worth of cocaine in this country. If there were 10 million people, and the survey says there aren't that many anymore, but if there were 10 million people, each of them using $500 worth of cocaine a year--that's a couple of rocks a week--that would only be $5 billion worth. The other $25 billion has to go to people who use a lot of cocaine.

If we took marijuana out of the equation, the number of illicit drug users would collapse dramatically. The drug problem wouldn't change much at all, because the drug problem we really have isn't much about marijuana.

The adolescent use issue is a serious one. I think it's probably bad for 14-year-olds to get stoned. I'm sure it's bad for them to get stoned in school; they're not going to learn anything. But against that we have the violence associated with the illicit markets and the imprisonment associated with drug law enforcement. Those problems are overwhelmingly the drugs other than marijuana.

The label "drug problem" seriously confuses the issue, because it treats all the illicit drugs as if they were alike. We need to look at substance abuse problems in the plural, because each drug is its own problem, though, of course, most heavy users use more than one drug.


INTERVIEWER

I follow you for the most part, but you said one thing that confused me. I thought there was a huge amount of marijuana arrests and I understood that one out of every six people in federal prisons are now in for marijuana offense.

KLEIMAN

Marijuana generates more arrests than any other illicit drug. Much of that doesn't have anything to do with law enforcement specifically targeting drug infractions. Much of that is literally somebody's driving a little funny, gets pulled over and the cop smells the marijuana smoke or sees the baggie on the seat. There are relatively few police officers out there who are spending their time trying to catch people using marijuana. More in suburban and rural areas obviously than in urban areas, but marijuana enforcement isn't a very high priority, it's just that there's a lot of marijuana smoking.

And there are a lot of people that still act as if it were more or less legal. And therefore, violate Cheech and Chong's first rule of marijuana smoking, which is don't blow smoke [in a] cop's face. So there are a lot of arrests. Most of them don't lead to much of anything, except annoyance and embarrassment.

Now at the federal level, where there is a lot of effort at domestic marijuana production, you get a substantial number of people going to prison for mostly large scale cultivation. There are relatively many marijuana prisoners in the federal prison system, but that system holds only about 10% of the nation's prison population; the other 90% are in state and county institutions.


The federal prison system is heavily oriented toward drug offenses, somewhat more than half of all federal prisoners are in for drug offenses. And some noticeable fraction of that is marijuana. But still, if you look at the overall burden of drug law enforcement and drug related imprisonment, marijuana doesn't count very high. These are all guesses, no one really has good numbers. My best guess is that there are about 400,000 people in prison or jail at any one time for drug offenses: possession, not very much possession, some possession, distribution offenses. Of that something less than 10%--30,000 or 40,000 people--are in prison for marijuana offenses.

That's a lot of prisoners, but it's not a very large fraction of the overall prison effort. When people talk about the drug problem generically, whether they're talking about drug abuse or the cost of drug law enforcement, and then immediately switch the topic to marijuana, that's a little deceptive. Nothing we do about marijuana can really put a dent in either the problem of drug abuse or the problem of drug-related law enforcement and imprisonment, because those problems are overwhelmingly about other drugs.

Marijuana laws have become a symbolic battleground, where the real battle is over what we should do about cocaine. Some people say, "The Netherlands has legalized cannabis, and nothing terrible happened; therefore, the U.S. should legalize cocaine." There are four problems with that proposition. First, The Netherlands haven't actually legalized anything, though flagrant retail marijuana dealing is tolerated. Second, we don't really know much about what the effect has been on rates of marijuana use there. Third, something that worked for the Dutch might not work here. Fourth, cocaine isn't cannabis.


And, yet, what to do about cocaine is really the big drug policy question, unless you're courageous enough to address the problem of what to do about alcohol, which accounts for more violence, more crime, more sickness, more death and more arrests than all other drugs combined.

INTERVIEWER

So why has marijuana become this kind of symbolic trigger point in this debate?

KLEIMAN

Marijuana is the most widely-used illicit drug, and the illicit drug most likely to be used by respectable folks, and the kids of respectable folks. And for all those reasons, it's highly controversial. There are millions of employed, hard-working and productive Americans who are, by the definition of our current law, illicit-drug users. And so when people go on TV and say drug users are bad people and we should shoot them all, they're referring to a lot of people they know.

And the marijuana users resent it. People who like to smoke marijuana and they feel oppressed by the current laws, wind up being a large constituency for what are called the Drug Policy Reform Organizations, people who are interested in changing the drug laws. And they take, what seems to me, the completely illogical step of saying, marijuana's illegal, I like to use it, therefore the drug laws are wrong and no drug should be prohibited. I don't really think Aristotle would give his seal of approval to that syllogism, but that's what's in people's head. They see a drug law that, to them, looks like it's unnecessary, inappropriate. They see propositions about drug users, which they know don't apply to them, and they conclude that all drug laws are bad, and all propositions about drug users are false, as if the crack problem weren't real.

INTERVIEWER

You're saying on both sides of the debate, somehow marijuana is being taken as a sort of meshing with the other drugs?

KLEIMAN

Right. Marijuana is a symbol. Marijuana is the cutting edge of the problem on one dimension, because it's the drug that kids are most likely to use earliest, it's an illicit drug that's mostly likely to be used by a randomly selected person, and, therefore, it gets to be a symbol about all illicit drugs. But cannabis is the most widely used illicit drug, precisely because its negative impact on most users tends to be much smaller than the impact of cocaine or methamphetamine. Marijuana is grossly atypical of drugs. The combination of being most common and a total outlier makes marijuana a huge red herring in the drug policy debate.

INTERVIEWER

Talk about your initiative and how it started, why you saw a need for it.

KLEIMAN

Everybody who works in the drug policy area seriously is frustrated by the generally low level of the discussion: low factual content, low logical content, high emotional content. People are also frustrated by the viciousness and dishonesty that characterize both sides of the hawks-versus-doves drug debate. And it's actually worse in private than it is in public. I talk to people who are real hard-core drug warriors and people who are real hard-core legalizers, and their characterizations of one another are even nastier when the press isn't around.

On both sides, the beliefs and the animosities are quite sincere. People on the drug policy reform side think that the people who are interested in tougher drug abuse control have an agenda to repeal the Bill of Rights and turn the United States into a police state, turn the world into a police state.

Many people on the drug-warrior side think that drug policy reformers are drug addicts who are trying to make other people drug addicts. And once that's the situation, people start to say, "All's fair in love and war." For example, consider the debate about Prop 215 in California, the medical marijuana initiative. The proponents of Prop. 215 went around saying that their opponents didn't care about the suffering of people with cancer and AIDS. The other side said that the supporters of it were trying to spread drug abuse among kids.

Now neither of those were as false as you'd like them to be, but some of what was said was simply remote from the truth. People were saying on the Pro-215 side, that there was lots of scientific evidence of medical utility for cannabis. That's not true. I've read the literature and it's extremely thin. It's extremely thin largely because appropriate research has not been allowed to be done legally, but, in fact, there's just not enough evidence there to support a petition to the Food and Drug Administration for a New Drug Approval, which is what it takes to market any medication legally in this country.

If a drug company trying to market a new drug came forward with a pile of papers equivalent to the current scientific evidence about marijuana and said to the FDA: "Here's our evidence that this drug is safe and effective, give us our approval," the FDA would laugh at them. You can't bring a drug to the market with that level of ignorance about its medical utility.

On the other hand, some of the other opponents were saying, "There's not a shred of scientific evidence that marijuana's medically useful." Well that's nonsense, of course there's evidence; there's just not enough for an FDA submission. And the answer, therefore, has to be, let's do the research. I've been boring people for five years now by saying whenever this question comes up, "Let's do the research, let's find out, let's try it on some patients and see if they get better."

It's more complicated than it sounds, because cannabis is a very hard drug to research. Western medicine is based on pure chemical species. If you have headache, you don't chew willow bark, you take acetylsalicylic acid--aspirin--which is a derivative of one of the molecules in willow bark. Once you define a pure chemical species, then you can do the research by modern standards. You say, "We're going to give so and so many milligrams per kilogram of body weight, packed in such and such a format, to X hundred patients, and we're going to give a placebo to a X hundred other patients selected at random from the same population, and neither group will know what they're taking so the expectation effect won't be at work, and we're going to have somebody who doesn't know who got what figure out how many in each group got better."

It's much harder to do that with cannabis. First off, you don't exactly know what you're giving because two different joints don't always contain the same amount, or even the same ratio, of the active agents. Not only does marijuana vary in its chemical composition, people vary in the way they smoke it. Worse yet, it's very hard to fool somebody who's an experienced marijuana user, by whether you give them marijuana or a placebo.

So it's not easy research to do, not impossible, but not easy. Much of the prejudice against cannabis among medical researchers has to do with the fact that it's herbal rather than the fact that it's illicit. Cannabis is both a controlled substance and a crude herbal preparation. Modern medical science doesn't want to deal with either category any more than it can avoid.


Part of the problem is marijuana is not an interesting scientific question. You just can't get tenure by finding out whether inhaling the smoke from an herbal preparation performs better or worse than oral administration of one of its active agents. That's just not a scientifically thrilling question.

In sum, the Prop. 215 debate contained an enormous amount of misrepresentation of motives and facts on both sides of the proposition. A number of us said, "Enough! We're at the point where the politics of drug abuse control are themselves a major barrier to getting drug policy right. So instead of writing one more set of papers on what a drug policy would be, let's address that directly. Let's talk about the problem of polarization. And let's try to write principles for drug policies that would not be agreed with by either the hard line hawks or the hard line doves, but that would be agreed with by sensible folks in the middle. Can we create a third way that's not either mindlessly trying to increase the drug war or mindlessly trying to end it, but trying to take seriously the goals of drug policy and see what policies might actually carry them out?"

INTERVIEWER

So you're trying to frame the debate in terms other than legalization and criminalization?

KLEIMAN

Right. We don't want to debate legalization versus prohibition, we don't want to debate use reduction versus harm reduction, we don't debate hawks versus doves, we want to say, "Wait a minute. This is really a complicated question. We need to look in detail at individual policies and figure out which ones will actually serve the public interest."

Some of the differences between current policy and ideal policy are in the direction of tightening. Some are in the direction of loosening. The important thing about them is not in which direction they're in, but whether they work. One of the slogans of the post-Mao reforms in China was, "Any cat is a good cat if it catches mice." Well, any drug policy is a good policy if it reduces the total damage that drugs do. And we ought to start looking for policies that work rather than policies that fits somebody's ideological preconceptions.

INTERVIEWER

Give me an example pertaining specifically to marijuana, if you can, of some of the principles ...

KLEIMAN

One of the principles is that we ought to base our policy on science. If we're trying to decide whether cannabis or its constituents ought to be permitted as medicine, then we ought to do the science and figure out what its medical effects actually are, and if it turns out to be safe and effective for some condition, then we ought to make it available, and if not, not. We shouldn't debate medical marijuana as a shadow play about the deeper question of legalization of marijuana for recreational use or the legalization of other things for recreational use.

The medical marijuana proposition in California was fought as if it was about how would we deal with really dangerous drugs like crack, which is silly. There's just no logical between whether inhaled whole cannabis outperforms oral THC in control of vomiting for people who are taking cancer chemotherapy and whether there should be mandatory minimums for crack dealers. Yet the Prop 215 lineup, which was theoretically about this limited issue, in fact, turned out to be around these border questions of how tough we should be on drug policy.

The proponents of drug policy reform, as they themselves--legalizers, as their opponents call them--people who want to de-emphasize the war on drugs, picked the one issue where their factual basis was pretty good and their emotional basis was terrific. They got to tell the voters, "This is about relief for people with cancer and AIDS." And one of them said to me, privately, "The only thing more potent than drugs as a negative symbol is cancer. We're going to make people choose between drugs and cancer, and they're going to vote for drugs."

INTERVIEWER

And AIDS, right?

KLEIMAN

And AIDS. Prop. 215 was exactly that cynical in the way it was packaged and promoted. They did a brilliant job at it and their opponents were asleep at the switch, and so by 56% to 44%, Californians voted to make a hole in the marijuana law to allow people to use it and grow it for medical purposes.

The day after Prop. 215 passed, Dennis Peron, who was one of the organizers of the Prop. 215 campaign said, more or less, "Smoking pot is good for you, therefore all marijuana use is medical." That was not part of the pre-election packaging.

If you want a symbol of what has gone wrong in the American drug policy debate, try the Prop. 215 victory party, where you could watch on TV as the supporters lit up their joints. They'd gone around saying, "No, this doesn't have anything to do with intoxication, this is about medicine for sick people," and there they were celebrating the passage of Prop. 215 by toking up. That sort of behavior is one of the things we wanted to criticize.

INTERVIEWER

So it was a smoke screen for a legalization debate?

KLEIMAN

Right. On both sides, Prop. 215 was a screen for debate about drug legalization. The proponents were using it as a stalking horse. They figured out that they could get people to vote for this because it sounded pretty reasonable and having gotten them to take their first step, might get them to take subsequent steps. They'd also figured out, I think quite correctly, that once Prop. 215 had passed, there would be a series of difficult problems for the people trying to do drug law enforcement.

So the confrontation between the drug czar's office and the physician was all well understood in advance as a likely consequence of the way Prop. 215 was written. It was carefully written ambiguously to make it very hard for everybody on the government side to do it right.

Because the proponents of the legalization of marijuana for non-medical use have been at the forefront of the movement for its medical use, there's a tendency for the drug warriors to say, "Oh, we know that's just a fraud. Since it's being supported by people we don't like, there must be nothing to it." That, of course, [is] false. It doesn't follow from the fact that the people who were saying something have an ulterior motive, that what they're saying isn't true.

I actually think it's quite likely that if we do the appropriate medical research, we'll discover that for some applications, inhaling cannabis vapor is better than swallowing a THC pill. It shouldn't be an issue of principle; after all, the main psychoactive agent of marijuana is already a legal drug. The only question is whether the mix of agents that's in the natural material, and taking it in by lung rather than taking it by mouth, ought to be allowed for patients whose doctors think is good for them. That's not a major drug policy issue, or at least it shouldn't be.

When Dr. Herbert Kleber, now at CASA, was Bill Bennett's Deputy Drug Czar for demand reduction, said and he has been saying the same thing ever since, "Medical marijuana is not a drug policy issue, it's purely a medical issue." I think that was the right thing to say, and I think it's still the right thing to say.

Disappointingly, Herb couldn't persuade his boss or other people in the federal government to allow the research to go forward. And so we had this absurd situation where people in the government and other drug warriors are saying that marijuana shouldn't be approved for medical use because there's not appropriate research, while at the same time making it impossible to do the research. Donald Abrams, who's an AIDS researcher in San Francisco, has been trying to get a study of medical marijuana going for five years now. And it's been held up in one regulatory road block after another. Because a lot of people simply do not want this research to happen. He finally got approval, but only for a study that focuses only on safety and doesn't even try to prove efficacy.


INTERVIEWER

Coming back to your principles, do you also address issues of a mandatory minimums specifically for marijuana as well as other illegal drugs?

KLEIMAN

Sentences shouldn't be used merely to express disapproval. It's a very expensive way to send a message. We ought to think about sentencing in terms of its actual impacts on behavior, and we ought to frame our sentences in ways that make sense both morally and practically. Mandatory sentencing per se I don't think is a bad idea. Judges hate it cause it takes away their discretion. I'm not convinced the judges use their discretion all that well, so I'm not very distressed by taking it away.

Do I think guideline systems, that allow some discretion in special cases, are probably on balance to be preferred to mandatory minimums? Yes, but that's not really much of a change.

The issue is, what should the mandatory sentences, or the guidelines, be based on? Our current federal statute bases sentencing on the quantity of the drug involved more than anything else. That, I think, is a mistake. I think we ought to start basing sentences on the conduct of the people engaged. Are they using violence, are they using corruption, are they using kids? If we make that change, I think we'll have a more sensible set of sentences whether we use mandatory sentences or not.

INTERVIEWER

What do you say to a drug warrior who would say, "What's wrong with what we're doing now?"

KLEIMAN

Well, what's wrong with what you're doing now is that we now have 400,000 Americans behind bars at any one time for drug law offenses. That's an awful a lot of people to be caged up. And despite that, the price of cocaine and the price of heroin are close to their all time lows. We're not succeeding through enforcement in getting drug prices up and drug availability down nearly as much as I would have expected. We continue to have a huge problem of drug abuse that doesn't seem to be touched very much by our current policies.

Insofar as the current policies have a consistence theme, it's reducing the number of drug users. That turns out, I think not to be the most important objective.

The number of cocaine users has been falling since 1985. Have you noticed the cocaine problem going away? No, in fact, at least through the early part of this decade, it was getting worse, because what matters is the number of heavy users, and the amount of damage that's done by dealing enterprises, not nearly no so much the number of users, especially not the number of marijuana users.

KLEIMAN

The notion that we could go ahead and legalize something under tight regulation, and that the tight regulation would actually stay in place, ignores the reality of campaign funding. Even if you made some drugs legal and made it a public monopoly, is there any reason to think it wouldn't be like the state lotteries?

I remember the arguments for a public lottery. It was partly about raising some money for the government, but much of it was, "There are a lot of people who like to play the numbers. Why should we give their money to the criminals? We might just as well put that money toward the schools."

And then what do we get? We get state governments hiring really good ad agencies to try to produce compulsive gamblers. One of my favorites was for the Massachusetts Lottery Commission. You hear this sort of creepy voice saying, "Think of a number between one and five." It turns out that about 70% of the population, if asked to pick a number between one and five, will pick three.

Then you get a three bleeding onto the screen in psychedelic colors, and the voice says, "If you picked three you may have ESP. Have you played your number today?"

If we legalize marijuana or any other drug, either we will have a private industry whose profits depend on creating and maintaining addicts, or we will have a public beauracracy whose revenues depend on creating and maintaining addicts. Somebody's going to get a revenue stream from selling licit drugs, and whoever gets that revenue stream is going to try and maximize it. What you might call the political economy of drug legalization is a bigger problem than the legalizers seem to grasp.


INTERVIEWER

How about de-criminalization?

KLEIMAN

De-criminalization has many different meanings. The primary meaning is that production and sale are still illegal, but possession for private use and purchase are legal. That's basically what alcohol prohibition was. It was not illegal to own alcohol, it was not illegal to drink alcohol, it's only illegal to sell it or manufacture it.

So what people are proposing is that we go back to what we call alcohol prohibition for, say, marijuana. Now the difficulty is you're increasing the size of the market; presumably there are some people who don't use marijuana because it's illegal. So you increase the size of the market and leave that larger market in the hands of criminals. Off-hand it sounds like a bad deal. Now the question is how much would the market increase under different kinds of de-criminalization?

The extreme of de-criminalization is what some European countries have. It's simply not against the law to possess drugs--any drugs--for personal use. That's the law in Italy, in Spain and in the Czech Republic. The less radical form is what ten states in the U.S. have. Marijuana possession is still illegal, but you can't get arrested for it. At most, there's a fine or at most there's a non-custodial sentence.

Curiously the studies show very little impact of de-criminalzation on consumption. It may be there, but you simply can't measure the impact. If the result is that you have fewer people going to jail and no more drug use, well that's presumably a win, but nobody's studied that closely enough to know the answer. In any case, since there aren't many people going to jail for simply using marijuana, it's not clear how much of a difference it would make.

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