The End of the Forever War on Drugs, Pt. 5: Dispatch from New Jersey

by Dave Maier

It’s been a while since I posted on this issue, and I’ve already said most of what I intended to say about it, but things seem to be coming to a head in my own state, and I thought I’d report on that, including a couple of weird local wrinkles (the Garden State is a strange place). Three weeks ago, after months of missed deadlines, an adult-use marijuana legalization bill was approved by a joint (Assembly/Senate, that is, not … never mind) committee of the legislature, and may (note: may) be voted on later this year. If it is passed and signed into law by the governor – neither of which is a given – New Jersey would be the eleventh state to legalize adult use, and the second to do so by legislative action. (Washington and Colorado in 2012, Alaska and Oregon in 2014, California, Massachusetts, Maine, and Nevada in 2016, and Michigan in 2018 did so by voter referendum; Vermont did so by legislative action (in 2017, I think), although that state’s bill did not set up a legal market, which means that while it is legal to grow marijuana in one’s basement there, it remains illegal to buy seeds to do so.)

In this Friday’s local newspaper, one Republican senator, an opponent of the bill, was granted the entire space of the letters page for a long guest opinion on the matter. I’ll try not to debunk his points one by one, which would be boring (not to mention inconclusive, as we’ll see), but I did have a few thoughts.

First, while this issue has become increasingly non-partisan recently (one nationwide poll shows a narrow majority of Republicans in favor of legalization), in New Jersey’s legislature there is precious little Republican support for the bill. Possibly Republicans simply wish to deny the Democratic governor (more on him later) a political victory, with its attendant victory lap; or maybe they are manifesting party-line discipline on the matter. Interestingly, that party line is now in favor of what forty years ago we would have called the radical reform position, one which such groups as NORML were strongly advocating at the time: that is, decriminalization of simple possession (while that latter group, not surprisingly, now advocates a legal and regulated market).

In his letter, Sen. [Gerald] Cardinale indeed laments that the Republicans’ preferred policy of decriminalization is getting little attention. Rhetorically, however, the letter consists mainly of familiar prohibitionist talking points about how terrible it is that everybody is saying marijuana is totally safe, but actually it’s really terrible, and how it would be crazy to legalize it (because, again, marijuana is terrible so of course it should be illegal).

One’s first reaction to this might very well be to wonder why such easily disproven canards can still make it into print. For example, here’s NORML’s website, where it says in black and white (with gentle green hyperlinks): “Contrary to popular presumption, those of us who advocate for the legalization and regulation of the adult use marijuana market do not opine that the plant is altogether harmless or that it cannot be misused. In fact, it is precisely because marijuana use may pose potential risks to both the individual consumer and to public safety that lawmakers ought to regulate it accordingly.” This was also the stated reasoning behind Canada’s recently enacted nationwide legalization bill, which, I think, did make the news at least once.

Here’s the thing though. Most prohibitionists are indeed lying (or, you know, strawmanning) when they talk about the supposedly near-universally believed “myth” that marijuana is harmless (one wonders, didn’t Sen. Cardinale go to high school health class, or pick up any magazine whatsoever in the height of the Drug War era, or read the very newspaper in which his letter appears?). But let’s give the Senator the benefit of the doubt. Throughout his letter (passim, as they say), he says and/or implies that … well, let’s quote him: “Clearly, this is all about money […] [e.g.] the marijuana tax revenue [and] the political contributions that will flow from the extremely-profitable marijuana lobbying industry.” 

Here, unfortunately, if this is the context I might simply have to concede the point: that money makes the world, or at least New Jersey, go around. For example, we Garden Staters just returned Bob Menendez to the US Senate, in spite of his prosecution on corruption charges (he was acquitted, you see! So he must be clean! Or at least clean enough!). Our governor is one Phil Murphy, a tax-and-spend liberal straight from central casting, who coasted to an easy victory (not surprisingly, after eight years of Chris Christie), and promised several times during his campaign that he would demand an adult-use cannabis legalization bill from the legislature within 100 days (that would have been in April). He’s got a dozen things he wants to spend the tax money on, so he’s eager to get the bill passed. Some of the time, he makes the right noises: he dutifully lists several good reasons to end marijuana prohibition, and then at the end notes that “if we can make some [tax] money off of it, than so much the better” (or words to that effect). But it’s hard to avoid the impression that, as Sen. Cardinale says, money is the main motivating factor. For one thing, the Governor hasn’t even (as of this writing) come out in favor of the current bill, since – you knew this was coming – he thinks the tax rate is too low.

Another weird twist is this. After the 2017 election (our state is out of phase with the nation in this as well as other respects), it was widely assumed that the strong Democratic majority in the legislature meant that the Governor would easily have his way, and that marijuana was going to be legal here by, um, six months ago. One fly in the ointment I have already mentioned: the Democratic senators’ version of the bill features rather lower tax rates than the Governor would prefer – the reasoning being that a lower tax rate is necessary for one of the bill’s stated aims, and indeed a main reason that decriminalization is a pointless halfway measure: i.e., to undercut the black market.

That has always seemed a minor roadbump (although it doesn’t seem to have yet been overcome). More seriously, a number of minority Democratic lawmakers are opposed to the bill in principle. In particular, Sen. Cardinale cites his colleague Sen. Ron Rice, the leader of the Legislative Black Caucus, who has called the bill “a slap in the face to the black community.” Sen. Rice, a former police officer, can perhaps be excused for his understandable attitude that law enforcement be afforded its traditional role in this matter – if not his sometimes surreal pronouncements about the purported dangers of “pot candy” and suchlike. On the other hand, it sometimes seems that his objections are more economic, having to do with profits going to rich white people rather than the local communities in which at least some of the proposed retail outlets would be located. If so, here again I might concede the point, as Sen. Rice no doubt knows the details of the bill better than I (although available online, the bill’s actual text is, as they say, tl;dr).

In any case that’s not what I want to talk about. Back to Sen. Cardinale’s letter: “Sen. Rice pointed out that in Colorado and Washington [the first two states to set up legal adult-use markets, both by referendum, in 2012], more minorities are being prosecuted post-legalization. He believes that this would happen in New Jersey […].”

Here again we have an easily disproved canard, although possibly one or the other senator is simply confused or unclear. The idea that “more minorities are being prosecuted post-legalization” is directed at one of the main stated motivations for ending prohibition: that the hammer of prohibition falls disproportionately on minorities (which it does). If ending prohibition doesn’t solve that problem, the thought goes, that motivation is moot. (Sen. Cardinale: “We can address the anti-minority bias in marijuana prosecutions, without having to deal with the heartache and trouble caused by legalization” – by arresting more white people, I guess?)

And lo, statistics from Colorado and Washington do indeed show that the proportion of minorities arrested for drug offenses remains disproportionate. But the overall arrest numbers, for minorities and white people alike, are way down. It remains unclear why minorities should prefer that they go back up to previous levels, rather than that we instead address the disparities that remain.

In any case, the October 2018 report by the Colorado Division of Criminal Justice, Department of Public Safety, the authoritative source in this context, notes right at the beginning, “The information presented here should be interpreted with caution. The majority of the data should be considered baseline and preliminary, in large part because data sources vary considerably in terms of what exists historically. Consequently, it is difficult to draw conclusions about the potential effects of marijuana legalization and commercialization on public safety, public health, or youth outcomes, and this may always be the case due to the lack of historical data. Furthermore, the measurement of available data elements can be affected by very context of marijuana legalization. For example, the decreasing social stigma regarding marijuana use could lead individuals to be more likely to report use on surveys and also to health workers in emergency departments and poison control centers, making marijuana use appear to increase when perhaps it has not.” 

That’s probably the main thing we need to remember about this, whether one is Sen. Cardinale or the director of NORML. So while it’s important not to make careless errors like the above, let’s not get into a game of Dueling Statistics. Indeed, you can’t do any research on this issue without seeing advocates of one side or another throwing out statistics going all every which way. (For more on this particular stat, see here.)

The issue of racial disparities in policing is a thorny one in any case. Although a passionate supporter, Michelle Alexander (The New Jim Crow) makes the important point that drug policy reform alone merely combats a symptom of racial oppression and not the underlying sociopolitical mechanisms. So we shouldn’t be surprised when removing a particular tool from the drug-war toolbox doesn’t change the objectionable racial dynamic. I don’t have any bright ideas here – read The New Jim Crow for a trenchant analysis – so let me just finish with a related provocative thought from a surprising source, about a seemingly rather different situation.

Just yesterday, by coincidence, I finished Masha Gessen’s brief essay Never Remember: Searching for Stalin’s Gulag in Putin’s Russia (with photos by Misha Friedman), and ran across the following. Let me be clear: I’m not suggesting that being arrested for walking down the street smoking a joint while black is the same as being put into solitary confinement in a Soviet prison camp. But the law-enforcement dynamic Gessen describes does seem eerily familiar in the context:

[Sergei Kovaliov’s] work on the Chronicles [of Current Events, an underground newspaper] had prepared Kovaliov for Perm-36 [a prison camp where Kovaliov was interned during the late 1970s] pretty well: he knew many of the camp rules and the possible penalties for violations. What he did not know was how enforcement worked. Back when he was typing up news items for the Chronicles—often these were about an imprisoned dissident being placed in solitary as punishment for having been unshaven or for having failed to button his prison robe all the way to the top […]—he had sometimes found himself wondering how hard it can be to observe clearly articulated rules, however absurd, and what the point of violating them was, considering the cost. At Perm-36 he found out that no one usually observed most of the tiny nitpicky rules—and the guards paid no attention unless they needed a pretext for placing you in solitary. Then you could be busted, as Kovaliov once was, for having the top button of your robe undone while in the bedroom in the barracks. The whole point of having detailed, excessive rules was to guarantee the option of selective enforcement: If the rules had been applied evenly and consistently, they would not have been very useful as an instrument of control. [p.99, emphasis added]

Whatever happens in New Jersey in the next few weeks, racial justice will still have a long way to go.

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