Marijuana Legalization with Douglas Berman

I discuss marijuana legalization and why Congress is so incompetent, with Ohio State's Douglas Berman and UVA Law 3L, Cortney Inman, my co-host for this episode.

Douglas Berman is the Newton D. Baker-Baker & Hostetler Chair in Law, and the Executive Director of the Drug Enforcement and Policy Center at Ohio State University’s Moritz College of Law. His principal teaching and research focus is criminal law and sentencing, and marijuana law and policy.

Professor Berman is the co-author of two casebooks. Sentencing Law and Policy and Marijuana Law and Policy. He has served as an editor of the Federal Sentencing Reporter for more than a decade and is the sole creator and author of the widely-read and widely-cited blog, Sentencing Law and Policy, which now receives nearly 100,000 page views per month and was the first blog ever cited by the U.S. Supreme Court.

Recommended Reading:

Drug Enforcement and Policy Center: Marijuana Reform Focus Area
https://moritzlaw.osu.edu/faculty-and-research/drug-enforcement-and-policy-center/marijuana-reform

Joanna Lampe, Congressional Research Service, Does the President Have the Power to Legalize Marijuana? (Nov. 4, 2021), at https://crsreports.congress.gov/product/pdf/LSB/LSB10655  

Jennifer Le, Federal Cannabis Reform – Is 2022 the Year?, National Law Review (Feb 11, 2022), at
https://www.natlawreview.com/article/federal-cannabis-reform-2022-year 

Hailey Fuchs & Natalie Fertig, Big Weed is on the brink of scoring big political wins. So where are they?. Politico, Jan. 22, 2022, at https://www.politico.com/news/2022/01/22/big-weed-brink-scoring-political-wins-527604 

Douglas Berman & Alex Kreit, Marijuana Law & Policy Casebook https://www.amazon.com/Marijuana-Law-Policy-Douglas-Berman/dp/1531010377

Transcript

SPEAKER_05: 0:00

Do you want to be Douglas or Doug? You can call me Doug. That's just a lot easier. And I always tend to use Douglas in my writing just because it almost makes me sound important.

SPEAKER_01: 0:11

I'm the same way. I use Kimberly because I don't know. That's like what we did in the 90s. But I'm just Kim. Hey, hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick. Douglas Berman is the Newton D. Baker, Baker and Hostetler Chair in Law and the Executive Director of the Drug Enforcement and Policy Center at Ohio State University's Moritz College of Law. His principal teaching and research focus is criminal law and sentencing and marijuana law and policy. Professor Berman is the co-author of two case books, Sentencing Law and Policy and Marijuana Law and Policy. He has served as an editor of the Federal Sentencing Reporter for more than a decade and is the sole creator and author of the widely read and widely cited blog, Sentencing Law and Policy, which now receives nearly 100,000 page views per month and was the first blog ever cited by the U.S. Supreme Court.

SPEAKER_05: 1:15

More thank yous. I really appreciate the you having me on and hopefully this conversation is as exciting for all of you as it necessarily is for me.

SPEAKER_01: 1:25

It's going to be much more exciting for us because we're going to learn more from you than you are from us. We're very excited to talk to you today. Let me allow Courtney to introduce herself. She is the co-host for today and Courtney, you have the first question. So once you introduce yourself, you can proceed.

SPEAKER_10: 1:40

Hi, I'm Courtney Inman. I'm a 3L at UVA and I'm super excited to get to talk to you about this topic today. So my question, well, one of the things we discussed in class kind of for a while was the issue of big marijuana. And I had concerns mainly with large companies coming in and usurping the ability of small businesses to be able to thrive in the marijuana industry. So I'm a strong advocate for legalization or decriminalization, but I think it needs to be done right. And I don't think we should be pushing legislation through that fails to consider the economic, social, racial equity factors related to legalization. So when I was reading through some of these bills being considered in the House and Senate, I started to wonder what the federal government could do to help protect the ability of small businesses and especially Black-owned businesses to be able to thrive. For example, one of my particular concerns was that in some states, they've created these licensing regimes that In practice, box out small growers or businesses where you impose really costly licensing fees or require that a business be completely vertically integrated, such that you'd have to be both the grower, the transporter, and the operator of the storefront. So overall, I was just kind of wondering how a federal law might be able to prevent such results and instead allow both large and small businesses to coincide. And additionally, putting aside the likelihood of such a law even passing, would such a law pose federalism concerns by telling the state how to structure the licensing regime?

SPEAKER_05: 3:16

So thanks for that great question. And I'm going to do a little bit of mini lecturing, if that's okay, because I think the question pumps it well for a bunch of different reasons. First and foremost, though, and this is kind of a theme I'm going to keep returning to, is I think not that the debate over legalization has moved too quickly. It's actually been around for quite some time. But I think a lot of advocates who, as you framed it, you know, I'm supporting reform, supporting legalization, but we've got to do it right. And sure, we need to do everything right if we can, but we need to really figure out what is the wrong that is most important for us to undo. And if they're wrong, and I think it's a little bit taken to your question, and I'll do, of course, really bad weed puns throughout, is that's the fun of teaching in this area. We've got more fun with bad linguistics than possible. But big is the problem. I don't want big. Okay. But for me, the big that I really have been troubled by this, you know, is based in my own work in criminal justice reform and, you know, where I sort of come to the marijuana conversation, big government, and particularly big government as expressed through prohibition, as expressed through criminalization, is the big I'm most worried about getting out.

UNKNOWN: 4:39

And

SPEAKER_05: 4:39

big marketplace, and of course, and it's sort of, you know, notable, and I think it's a sign of how successful some of the, at least skeptics about reform have been. Hey, we don't want another big tobacco. We don't want big pharma in charge here. We don't want big alcohol sort of defining this market going forward. And I'm not resistant to that thinking that that's something we need to worry a lot about. But until we get, as I sort of see it, big government, out of the way. And I don't mean big government and kind of the, you know, there's too much regulation. We'll get to that maybe later in our conversation, but just prohibition and criminalization and the stunning footprint. And of course, inequitable footprint that is put, you know, we can say literally on the necks of individuals. And of course, that's not always about big and small, right? We have big tobacco. Big tobacco didn't kill Eric Arden, right? Criminalization of selling in a kind of quasi gray market, individual cigarettes killed Eric Garner. Now, some people would say, oh, a big tobacco supports the police to go after the folks who are doing that. I'm fairly confident. I'm troubled if it's illicit or really subject to criminalization. I'm fairly confident there will be small players of all sorts in this industry, like there are in every industry over time. And to enable criminalization to stay in place until we figure out what's the right way to make sure we kind of have marketing government working together to make this beautiful utopian vision of what this market can become. Well, I don't think we've got a utopian vision of any market that we've been working on for literally decades and centuries. And here I'll do a little bit of sort of backstory. I'm still drawn to, I still advocate to my students, I advocate to you too, everybody who cares about this, Go back, it's literally 50 years ago, last month, it was known as the Schaeffer Commission Report, which was prompted by then-President Nixon, where he created this commission that he hoped would say that marijuana is so scary and dangerous that we need to have it on Schedule 1 and that we need to heavily criminalize it and heavily punish it. The Schaeffer Commission came back with this incredibly nuanced report talking about the history, talking about health issues, and the key theme they emphasized, or that I emphasize about the work that they did, is that whatever you think about marijuana use, it's not as harmful as criminalization. And they actually kicked off at the state level, mostly, it didn't have any purchase at the federal level, state decriminalization campaigns. But it ended up working that well, sort of for the reason, Courtney, you're, A, these equity programs their states are putting in place aren't working that well. you know, and this is where my libertarian tendencies come to the fore, the government doesn't do anything that well, or more importantly, they're not that nimble and they're not that eager unless the politics push them effectively and consistently to do better. Markets, for good or for bad, are pretty darn nimble. And at the end of the day, and this is where I'll kind of wrap it up and get to some other questions that are in this space, if we as potential consumers are concerned about big, then go buy small, right? And maybe push the government to create a framework that makes it easier for us as consumers to do that, right? And so I'm always going to be inclined to say and encourage, and this is a public health story, this is a marketplace story, there's other things. And I don't think many people have sort of worked towards this, even though people are working really hard on how to make social equity work better. But how about differential tax rates? Right? Rather than let's build a structure that says, you know, you get these benefits and you get to build this way or that way. Something that's a lot more nimble and a lot easier to modify over time is what the tax structure is. If there's certain kinds of businesses, small businesses, minority owned businesses that we think ought to get some preference, you can actually do that sustainably over time, probably by shaping consumer behavior. Tax is the obvious way that that can be done at the government level, but it can also be done just by information flows. Realistically, and this is where I may be overly bullish on the marketplace, it's gonna be mostly young people, mostly progressives, that are likely to drive the marijuana marketplace in the short term, probably in the long term, generally, except maybe medically, right? It'll be old people who drive medicinal drug markets. And so if there's a progressive consumer base I am at least hopeful the market can get us in that direction. Not perfectly, because it never does. And we need to be, as I think you are and lots of other people are as well, concerned about this big story. But I come back to this idea of let's get big government out of it, especially big, harmful criminalization, policing, enforcement, all sorts of elements to that. And then we can worry about, oh gosh, is it all big pot companies and do we not like how they're moving the market forward.

SPEAKER_01: 9:46

Can I just ask you a follow-up, which is my sense is that this is one of the debates that has sort of slowed down legalization in some states. Is that right? And do you have any specific examples of states where this has been an issue and sort of what the holdup has been?

SPEAKER_05: 10:02

Yeah, absolutely. So, I mean, this is a variation of the best is the enemy of the good, right? And I think the two most tangible examples Examples, although you put it nicely to say it slowed it down rather than stopped it. In New Jersey, they elected a governor in 2017 who campaigned quite aggressively on a marijuana legalization platform. And he had a very progressive legislature that was supportive of legalization in theory. But then when it came down to write the bill, there were members who were saying, we've got to make sure we have minority-owned businesses. We need to make sure there's enough social equity. built into the structure here. There were would-be industry participants who said, who cares what this looks like? Or more accurately, we're like, we don't want that stuff. The industry is up and chugging right away. It's so bogged down, the legislative debate in New Jersey, that the way the legislature dealt with the fight was to put it on the ballot in 2020. So even though there was clear consensus, and again, in the meantime, 10,000 people are getting arrested for marijuana offenses. And of course, criminalization continues even after legalization. Juvenile arrests, Colorado had a really bad problem with an uptick in juvenile arrests after full legalization there. You have the Eric Gardner problem, right? People not complying with regulated marketplaces and then still being subject to criminal enforcement. But New Jersey was sort of my state level example of debating over the particulars and really a fight between sort of moderate industry oriented legalization advocates and more progressive social justice oriented legalization advocates couldn't get a deal done. And that slowed a move away from big government for at least a couple of years. The federal level is of course the more, I don't wanna say profound, consequential version of this, right? I think in some of the readings I provided the Safe Banking Act seems to have the most significant widespread support on both the GOP and the democratic side of the aisle. That's not getting done largely because advocates for much bigger reform on the Senate side are saying, we're afraid if we pass banking reform that helps the industry but doesn't help everybody and then significantly diminishes kind of widespread support for broader legalization efforts. And so we're not willing, we mostly hear this from Schumer, Senator Schumer and Senator Booker, not willing to advance something that I'm almost certain would pass and probably pass 75 votes in the Senate, Because doing a little bit better will prevent us from doing a whole lot better with the bill that we're working on that has every bell and whistle for reform that mostly progressive advocates are saying should be essential to how we do this.

SPEAKER_01: 12:49

So this is what's holding up the banking because I'm just– I continue to be amazed that that hasn't gone anywhere. It seems– so uncontroversial. It seems like it should be so uncontroversial. And I keep thinking, okay, this year, this year, and it never comes. Okay, so it's interesting to hear what's the hold up there.

SPEAKER_05: 13:09

You know, I can drill in even a little bit more about it because it comes down to, hey, you know, banks are run by rich white people and they're already making money from this industry and they're already sort of leading it. They're the ones who win. And they're the only ones that win with the Safe Banking Act, though we've heard some very interesting sort of pushback for advocates for, hey, let's get something done. Hey, you know who's really not having access to capital in a world in which banks can't provide loans and do other things? It's actually the small businesses. It's actually the minority-owned businesses that don't have those venture capital friends that they can reach out to who can write a billion-dollar check or who can talk to their other rich friends to sort of get their business moving forward. And so there's an interesting sort of sub-debate about whether or not sort of greasing the wheels of commerce here is only good for some folks or it's good for everybody. Maybe it's more good for the richy riches and the banks, but it still will help minority, small business, other communities enough that it's worth doing even without these broader reforms. But at least right now, most of the more progressive advocacy groups, certainly the senators that have the ability to control this right now are saying we want more. There's some interesting conversation I've heard, especially when it looks like the bigger bills aren't going to make any progress in the Senate. Could we add a few social equity type provisions to the banking bill to get that to the finish line? And I think that's really the thing to watch really for the next six months, especially if the polls continue to suggest that the Republicans are taking over because then there will be the kind of real politic of, okay, nothing's going to get done in the next Congress of any significance Should we take this win and allow, I think this is part of it, allow the Democrats to at least brag that they got something done or know if it's the wrong kind of something, is that worse for our brand than to just move on to the next thing? cycle of Congress and see what the politics look like then.

SPEAKER_01: 15:08

So I want to come back to the racial equity questions because we have a number of student comments about that. But I guess before we leave the banking question, this is something that Madison and I had discussed in class. Madison is from Colorado. And to neither one of us does it look like legitimizing banking for the pot industry would only help rich white people and bankers. I mean, and I'll let Madison speak here, but to me, that seems to have the potential to undermine much of what we're hoping to accomplish by legalization, by keeping a portion of this sort of in a black market, one that is attractive to criminals, one that attracts violence. And so I guess I continue to be amazed that people make that argument, but I want to get your take on it because maybe I overestimate the problems. Madison, can you just touch on Colorado experience that you and I were discussing in class the other day?

SPEAKER_09: 16:04

Yeah. Hi, I'm Madison. I'm also a 3L at UVA. Like I just mentioned, I grew up in Colorado and I was actually in high school when Colorado legalized marijuana. And I One of the biggest challenges was the fact that it had to be basically an all cash business because we couldn't use any business that was associated with marijuana could not use banks. And that still continues to be a challenge. There are some local credit unions that are state chartered that are allowing marijuana businesses to do business with them. But largely, it's still an all cash business, which leads to basically these warehouses of cash that are just sitting there. And this cash is having much more difficulty entering into the economy. And that just seems bad for absolutely everybody. Like the reason that we have banks is to allow for capital to be invested in other ways and whatnot. And you have, I think in Colorado, within the first five years, it was a$10 billion industry. And that money is not being put back into the economy in the same way. So it strikes me as strange how, because it doesn't benefit really anybody to have it in sort of this all cash space. And I don't know why almost a decade in at this point, we still have not seen any sort of movement on that front. And in Colorado, there was an increase in crime whenever we see large, I mean, again, just warehouses of cash that have to have these armed guards around them all the time. We had border patrol at one point, like everything was just sort of chaotic. And it seems like a lot of this could be fixed by allowing people these businesses to use banks.

SPEAKER_05: 17:39

Yeah. So, I mean, you put your finger on it and, you know, we can go back to some congressional conversation in 2013, even before Colorado fully opened the first fully legal adult use marketplace. And people were saying then, you know, we need banking services. This is crazy to imagine running this industry on an all cash basis. And so you're absolutely right. It's been a decade. We haven't fixed it. I use that partially as exhibit one of governments are not nimble. and markets are, and I'll talk a little bit about that. I think this is part of it. There's so many elements to why some kind of banking reform hasn't gotten done at the federal level. I think most fundamentally, there's still not insignificant opposition to legalization and significant reform. We are, I think, in all the questions that were wonderful that you all put together, built around what lots of people who work in this space kind of function through, okay, we're on a path to full legalization, it's inevitable, let's go get it right, rather than fight over whether this is gonna happen. But there are still lots of people, possibly a majority of members of Congress, who are like, no, this is not inevitable, and it's not a good thing, and passing banking reform puts us one step closer to inevitability, right? So I think one level of this is, those who are concerned, maybe not concerned that we'll eventually get to legalization, but maybe concerned that on the path there, we need to do it right. We need to do it right from a public safety perspective. We need to do it right from a public health perspective. We need to do it right from even a social justice perspective. And if we just let the bankers go do their thing, that'll just move us too quickly down that path in a way that at least makes it comfortable for me to vote no, or at least to be comfortable that we're not yet fixing this one I'll then add, and this is a version of, and I don't know if you all know the reference to bootleggers and Baptists, but it's a part of the coalition between people who don't want to see reform at all and those who benefit from a lack of reform. I don't think there's a big armored car union that's busy lobbying Congress on these issues, but they've got a lot more jobs. There's a lot of retired police officers who have jobs standing in front of dispensaries, you know, having a lot more fun than they might do other things. And you know what? They're getting paid in cash, perhaps, and not reporting all their income, or they're otherwise sort of benefiting from a system where it may be broke a little, but kind of broken away that's working for me. And certainly that's been true for dispensaries and those working in the industry. It's awfully hard. We hear this from some of the resistors to reform, some of the prohibitionists, who are like, Gee, it can't be that big a problem every time a new state opens a new market. There's a whole bunch of folks sort of applying for licenses. Gosh, how big a problem is this really? How big a problem is the 280E tax issue at the federal level? The industry would not be so heated up if these were real barriers to the effectiveness of sort of functioning that some advocates for reform say it is. Last but importantly not least, and there's a really good article just this week coming out on this, the marketplace has figured out a whole bunch of workarounds. You probably know. This was my experience visiting Colorado some years ago. There's an ATM in every dispensary. And you know what you can do in the ATM? You put your cash card in, you put the credit card in there, and it's out money. And you know what? The bank is getting their 2% without having to fill out a whole bunch of forms about whether this is illegal money. And so that's That's all part and parcel of ways in which the banking system has found its way here, even though not in the traditional way. And then the more recent article was a report, I think it was in Forbes or Bloomberg, a financial publication notably, that probably a quarter of the industry right now, so they estimated about$7 billion of a$28 billion legal industry nationwide is working off of what they call cashless ATMs. I don't know if anybody knows what that is. This was sort of news to me, where literally you go into the dispensary and instead of having to go to the ATM, take out cash and then pay for your product, they have a little machine right there on the counter that kind of looks like a credit card machine. You can put in your debit card, you can put in your credit card, whatever it is, but then it gets reported as an ATM transaction. And you can even get a little bit of cash back With that, it has to do it in multiples of 20 to essentially sort of disguise this as an ATM transaction, but it's just become another way in which smaller players, right? It's been actually a lot of kind of shady money transaction entities that have set up these operations to allow people to use plastic. And of course, here's where market matters, right? And this is where markets and consumer tendencies drive this in so many different ways. There's apparently very good data that suggests if you're paying with plastic in a dispensary and somewhere else that you could use cash alternatively, you're gonna spend, roughly speaking, 10 to 20% more. So these businesses have an incentive to have you able to use your plastic instead of using cash, even if it's an ATM machine right there. So they've invented a way to do that, even though the banking bill hasn't passed. It'd be much better for tax collection purposes, for public safety purposes, for all those, to get this banking bill passed? Sure, but the dispensary owners, the real sort of butts of the industry, are busy figuring out a way to make do, and that's serving them well enough for the time being that it's not surprising to me that this has stalled, notwithstanding that, again, it's, you know, the policy makes this kind of a no brainer.

SPEAKER_01: 23:15

I'm going to turn to Caitlin O'Malley and Jackson with some questions to sort of return us to the racial equity issues that Courtney started us off with. And Courtney may have some follow ups. Caitlin and Jackson, I think maybe both of you ask your questions, and then we'll have Doug respond to the two of them together. Hi,

SPEAKER_12: 23:32

I'm Caitlin O'Malley. I'm a 3L at UVA. Pleasure to meet you. My question was, what do you feel is the best way to address the damage that has been done by the racism embedded in the current criminal regulatory regime?

SPEAKER_02: 23:46

And hey, I'm Jackson Bailey. I'm also a 3L at Virginia. And my question goes along with Caitlin's. As she pointed out, the racialized history of drug prohibitions is an important discussion. And race has been a major factor in what has become mainstream and what has become taboo in America. So it'd be interesting to hear your opinion on how we move forward from this history.

SPEAKER_05: 24:10

Wonderful. Thank you. Thank you for those questions. And of course, there's a lot of history there, right? It doesn't just extend to drug policy. It extends to all of our criminal justice system. Obviously, there's structural inequality that pervades everything we do. And I think that's an important thing to keep in mind, again, against the backdrop of, you know, we shouldn't let the best be the enemy of the good, right? You know, it's not like magically we're going to pass a bill, whether at the federal level or the state level, that says let's provide some advantage for historically harmed communities and think, oh, everyone's going to stop historically harming them, right? And this is where I think focusing on priorities, and rightly so, lots of people will have different sets of priorities. Mine is undoing the war on drugs and the criminalization and the disparate harms of Marijuana, as you probably are all familiar, the ACLU has documented terrifically African-Americans are four times more likely to be arrested for marijuana offenses than whites. Other people of color, other minorities have likewise been disadvantaged historically, both in kind of the way in which drug policy has been operationalized and just oftentimes in what gets decided to be legal or illegal in its very first instance. And so I think it's right, and both your questions reflect that, to understand that history and then ask, okay, both what are the biggest harms we can readily address short and long-term? And for me, it's expungement, a variety of efforts to have resentencing and a range of restorative and the term reparations can be controversial, but I'll happily use it in this setting. But for me, it's repairing the damage of being subject to the criminal justice system. And I've been fortunate enough, I think it's white privilege to some degree as well, that I've done things that I'm not proud of that didn't get me a criminal record, didn't get me subject to the long tail that comes with even an arrest. And I think really important, I think often underappreciated, especially by people who have been fortunate enough not to have significant encounters with the criminal justice system, there's the tangible stuff that the collateral consequences that you may all be aware of, the way in which having a drug conviction can mean not having access to student loans, not having access to certain housing, not having access to a variety of other public and private realities. But it also means not even thinking about your own human potential because you've grown up in a community, you've been subject to quite accurate messages that not only is there structural disadvantage to persons of particular races or particular backgrounds, but that once you've gotten caught up in the criminal justice system, forget it, right? You know, you've got two strikes against you and it's not even worth trying. And I think trying to quite aggressively undo that reality, undo that reality, not just expunging convictions, trying to do resentencings and otherwise get people out of the criminal justice system, but undoing a broader story that, you know, this is something that folks should, in a sense, self-censor or self-limit their vision of what they can achieve and where their life can go. And so that's why my first article in this space was kind of emphasizing the need to go from petition-based to more automatic expungement systems to get rid of all the records that are disproportionately borne by people of color, that I'd like to see robust resentencing for everybody involved in any marijuana offense at any point, because clearly the way we think about this activity circa 2022 is radically different than even how we thought about it in 2002, let alone 1982, let alone 1962. And yes, there are people still in prison for stuff they did related to marijuana from 1962. And so the footprint is just so profound and so in need of attention. I'll finish that by saying, and that attention needs to include not just legal reform, but significant resources, right? So money is needed to help not just expunge records, but to communicate people that they've had their records expunged. I'm actually quite worried that the move towards automatic expungement, wonderful, a DA or a governor sometimes or other public officials, we've expunged 10,000 marijuana records, pat us on the back, isn't that wonderful? And people who have those records don't know. or are righteously suspicious. Oh, that's nice that I'm expunged, but you know what? People can still find my record somewhere online. I'm still going to be subject maybe in a private employment setting to stigma from this, helping people not only know what that means, but then especially as we think about access to public services, private opportunities, having access to lawyers, having access to other means, perhaps governmental, sometimes even on the private sector side, to get their lives in a positive direction. I think that's where we not only need to devote ourselves, but there's so much work to do there. This is where my own kind of weird frustration of like, yeah, would it be great if 10 years from now, the marijuana industry is much more diverse and progressive than a lot of other corporate worlds? Yeah, that would be great. But if 10 years from now, as I'm quite fearful is going to be likely, there are still literally hundreds of thousands of people with criminal records and at least thousands, if not tens of thousands, of people still serving prison time, not just for marijuana offenses, but for a range of drug offenses that I hope, this is the last piece of my own kind of utopian wishful thinking, as we see we can do better undoing the criminalization and the consequences of criminalization for marijuana, then we turn to other drugs too, because I think the entire war on drugs has been built around a very problematic punitive model rather than a public health model that I hope marijuana reform can be sort of beacon for. But, you know, I hope a lot of things that don't come true. And so I'm not. Yeah,

SPEAKER_01: 30:21

I think Courtney wanted to ask a quick follow up about the collateral consequences. And then I think after that, I'm going to ask you about drugs other than marijuana and what the future might hold there. So go ahead, Courtney.

SPEAKER_10: 30:33

Sure. So on the collateral consequences point, I know that it's It's a whole messy system. And one of the things, and also like collateral consequences are a problem outside of just drug related crimes, but they're particularly harsh with regards to drug crimes. So one of the things that I've kind of wondered about in researching the issue of collateral consequences is that if you expunge somebody's criminal conviction, do those automatically go away? Or is it kind of like a gray area where you'd still maybe have to petition to be able to get eligibility for student loans or SNAP or TANF benefits or public housing. So I wonder if you could talk a little bit to that.

SPEAKER_05: 31:16

Yeah, and it's a great question. One of the things that is so frustrating, and this is true, I think, for probably everybody in every space, but especially criminal justice folks, the data and then answers to good basic questions like that are so complicated and opaque, right? So we literally do not know how many people in the country have a criminal conviction. We literally do not know how many people in the country have a marijuana conviction or a drug conviction or other things. We literally need, this is one of the things that the center I work with at the Ohio State University Morris College of Law, a little promo there for the drug policy, Drug Enforcement and Policy Center. We have a program going on called Opportunity Port that is an online tool designed to help people answer questions about whether their conviction is subject to record sealing under Ohio law. And that itself is so complicated. Even finding out about eligibility in so many settings requires a lawyer, often requires the problem with the petition-based system, often requires a lawyer to help you make the petition to a court to get a record sealed or to get expungement. And even the lingo here can be confusing and complicated. And then generally speaking, most state laws, the vision of most state laws is once expunged, once sealed, the direct legal consequences of that conviction go away. However, and this is again where lots of folks have been talking about this in light of a move to a digital world, that typically doesn't preclude an employer, a private employer, from doing kind of a very comprehensive background search. In fact, sometimes there are employers who will say, look, I know you can find out whether or not a record's been sealed because there's a court record of sealing. I'd like to find out about that. I know I'm not supposed to hold that against the company. an applicant, but it's still important to me, important to me in a variety of ways. One of the ways that that's been addressed is a number of states have passed legislation that say a private employer can't be subject to a negligent hiring lawsuit for any harm that subsequently follows if a record's been sealed. There are ways to kind of address that private side of things. There have also been laws that say that private databases that have been created with all criminal records around the country can be ordered to remove records after something's been sealed. And so there really is an attentiveness to try to make sure that gets addressed, but it's incomplete and for lots of people insufficient, especially as I mentioned earlier, there are plenty of people who have plenty of suspicion about, hey, I got this relief, but is that really going to make a difference, right? Or is that, you know, I think it more comes in and I don't want to do the paperwork. It's not worth the hassle. because I'm not sure it will, practically speaking, end up having that kind of benefit for me. And that's, again, where there's so much work to do to not only, I think one of the other questions was, can we run a campaign about this kind of stuff? I think having campaigns about the value of getting your record sealed, the value of getting expungement, and all the ways in which that can, and here are a bunch of people who have benefited from that, right? And so it's a really good set of concerns that you're right to say, is not just discussed in the marijuana reform context, but across the range of our criminal justice system. And I do think, and this is where I've written a little bit about this and done some work, I think the marijuana reform discourse and the emphasis on the need to have expungement and other kind of record relief as part of reform has jumpstarted a broader set of criminal justice reform conversations to its benefit.

SPEAKER_01: 34:49

And so, Doug, can I just follow up? You brought up drugs other than marijuana, and that's one of the things that I'm interested in because, you know, I'm just impatient, right? Like we're not even, we haven't even fixed the marijuana issue yet. And I'm already like, okay, can we fix some other things next? I think it was Oregon perhaps who has decriminalized more broadly. I mean, do you expect to see more activity there? And if so, where, and then what will it look like?

SPEAKER_05: 35:13

Yeah, it's an excellent question. And absolutely. It's funny because the There are advocates for marijuana reform who say, as I sort of did at least a little bit, you know, we'll start here and then we'll get to all the other drugs. There are opponents of marijuana reform who say, hey, this isn't just about marijuana. You guys are going to move next to all those more dangerous and scary drugs. And, you know, that's why we're wanting to stop here before we even get to marijuana. And so that relationship between reform of marijuana and other drug-related issues is a profoundly important one. And you're right. Oregon was the first state, did it by initiative, right? That's itself one part of the story of how these lessons of experience grow on each other, right? So most of marijuana reform starting medically in California in 1996, spreading across the country for the next 20 years or so, obviously Colorado and Washington starting full recreational marijuana. All of that was done by ballot initiatives. And that's

SPEAKER_01: 36:12

what we thought. Alex had actually raised that question in class. You'll meet him in just a few minutes. But it was our suspicion that there was a definite correlation with ballot measures and progress on legalization or decriminalization.

SPEAKER_05: 36:26

Yeah, absolutely. It's been, you know, and there's a wonderfully rich story that connects to so many different dimensions of life, right? It was really the AIDS epidemic that was the groundwork for creating the conditions for California cities and then ultimately the whole state of California being extraordinarily supportive of medical marijuana reform, though in that context it was very much driven by nobody should be called a criminal for using marijuana as medicine, especially, sympathetically, if they're dying of AIDS, which in the mid-90s when this all happened, an AIDS diagnosis was truly a death sentence at that time. And so that then grew not only as activists brought about initiatives in other states but as there was a realization that talking about this as medicine kind of softened concern about drug use and and put the forefront quite sympathetic figures for who wants to use marijuana and why i bring that point up because i think that's already the move psychedelics i don't know if any of you are keeping track of kind of this story this is sort of the next frontier of drugs that is very much following the cannabis playbook where there's a real investment in the medical potential of a range of psychedelics. What's so interesting in that space is there hasn't been, well, maybe actually there has been as much resistance and legal challenges to doing sophisticated research, but for largely 50 years, a set of doctors have been pushing really hard on the medicinal potential of a variety of psychedelic substances and have gotten far enough in the traditional FDA approval process that there's now exuberance, perhaps excessive exuberance in the marketplace, in the venture capital space, thinking that there are going to be a massive number of new applications for psychedelic drugs to deal particularly with treatment resistant depression and PTSD. I emphasize that point because I think one thing that's so interesting As we think about kind of the medical term, both with marijuana and now with psychedelics, is you might say it's the failure of big pharma and traditional medicine, right? That the types of conditions that have sort of come to the fore, that have driven an openness kind of from the public and policymakers to allow use of these drugs. We haven't figured out anything for AIDS. All right. Even if it's just kind of giving relief at the end of days. All right, fine. Okay. We're not going to criminalize somebody for doing that. ptsd that's terrible oh and all of our veterans have that and we haven't figured out anything for that okay that's one of the quite classic qualifying conditions uh for medical marijuana programs it seems to be a centerpiece of a lot of fundraising and advocacy around psychedelics as a possible treatment mechanism and so we've seen ballot initiatives in oregon also and then a few other cities to provide for regulated, kind of medicalized regimes for psychedelics. But here's again where things get so interesting so quickly. There's definitely a community that wants to use psychedelics for recreational purposes, wants to say, as I think most people now agree with on the marijuana space, hey, this really isn't that dangerous. It's been demonized through history for a variety of reasons. And so, yes, let's have medical applications. But if people want to go to a party and do this, that should be okay, too. And we should the very least not call it criminal and maybe at the very most you know have stores that sell this in a kind of a regularized kind of way how that conversation is going to play out whether the medical piece of it dominates as i expect it will for the next decade and that then becomes the end of it or if that recreational move is willing to sort of come out and say you know let's let's just do it like marijuana's on it uh i think that will not only be really significant in the psychedelic space itself but then that will end up defining a bunch of other drugs as well, whether it's cocaine. I don't hear much talk of medical meth, but there certainly is the opportunity, and this is really what the medical move has historically always done, to reframe our understanding of the pros and cons of using a particular drug. And that is something that I think for drug reformers is always gonna be really appealing, and that's where what we've seen with marijuana today, what we'll see with psychedelics in the years to come, will really end up being a template for those who want to go more broadly.

SPEAKER_01: 40:58

So I'm going to turn to Caitlin Stallings. There's two Caitlin's here, so you don't get them confused. And this is something that we brought up a little bit when we were actually discussing the SAFE Act. And I thought Caitlin noticed something interesting about all of the legislation that had been introduced, which is that almost all of it seemed to make bipartisan support less likely. Caitlin, do you want to elaborate? I thought that was quite insightful for you to pick up on that.

SPEAKER_11: 41:24

Yeah. So hi, I'm Caitlin Stallings. I'm the other Caitlin. I'm also a 3L at UVA. And so one of the things like Professor Kravik just said that I noticed was that all of the legislation or most of the legislation tried to be very comprehensive and do kind of everything at once. You know, for example, I found in the CAO, there was a requirement that we mandate federal research and studies regarding the impact of cannabis, including any benefits or impairments on the human brain and health conditions, and especially its impact on dry And I sort of was like, is that not research we already have? And if we don't, maybe legislation that instead focused on starting off, let's get the research out there, find out what impairments it may cause, so then we can use that in our arguments to pass more comprehensive research. So basically, my question comes down to, would it make more sense and be more palatable and get more bipartisan support if we push through instead piecemeal legislation instead of these comprehensive? That's

SPEAKER_05: 42:26

a great question, Caitlin, and I'll put up front, I am an incrementalist through and through. And so I'm always kind of a big fan of like, let's do the obvious little stuff and then we can worry about the big stuff later. And I'll give you sort of two variations of that. When Colorado and Washington came online with their bout initiatives, I was thinking about, I was writing a little bit about, we just need like a federal agency that will collect data. because we don't have that and we don't know what's going on and it's very hard and what's really depressing in this space and especially depressing for those concerned about sort of big marijuana or sort of big stories here is the industry and particularly the bigger players in the industry, they're the only ones who have a lot of data, right? They have the data about are people using edibles versus tinctures versus flour because they collect that data and they sell it to their friends and fans who need that data to run their businesses and every state the federal government even more so is so behind on just knowing what's going on that absolutely I think first and foremost, you're mentioning research, and I'll talk about that in a minute, but just even having data. Okay, I'll go to one that you're quite right to wonder about, but it's so frustrating because we don't have good data that all we still can do is wonder is how does using marijuana affect your ability to drive? you would think that's kind of easy to figure out. It's not. Why is it not? Well, historically, a lot of the studies that have been done in private labs and all of that, first, they're not allowed to have access to marijuana. They can't go get people stoned and put them on a simulator because that's technically illegal. So we just haven't had research to do that. To the extent there's been an effort to study traffic accidents and patterns and testing, a couple of things have come out and a couple of things that add to the challenge. Marijuana, much different than alcohol. is processed by people's systems and is related to impairment in much different ways depending on your history with the drug. That's true a little bit with alcohol. We know about having tolerance, but particularly marijuana, if somebody is a heavy THC user, they can have a lot more THC in their system and not have any problem driving relatively effectively. you could have a novice user who could have a very little bit of THC in their system and have a real problem with that, right? And that's a little bit true with alcohol, but it's super true when it comes to marijuana. So we don't really kind of are able to use just THC levels as a good guide to impairment. That's why we don't have, you know, kind of a THC breathalyzer or some other way to do that. In addition, and this is even sort of more interesting, a lot of the early studies or a lot of the efforts to study this effectively have to deal with the fact that it's mostly young people who are users And the other thing we know about young people, besides the fact that they're more likely to use marijuana, is they're not great drivers. So like if you, oh, look, we've got a lot of people who get into accidents and they have marijuana in their system. Well, yeah, it's a bunch of young people and young people disproportionately have marijuana in their system. So that doesn't mean the marijuana, you know, correlation versus causation. We all know that. And that's kind of been a problem with these with these sets of studies. And so you can actually spend years. A couple days or a couple hours Googling and you'll see, oh, no, proof that it's a problem. No, proof that it's not a problem. Here's another level of it that's really challenging and has changed, but changed very slowly. Historically, when people would get in a fatal accident, there would be a blood test or some kind of test done. Do they have alcohol in their system? Put that into a drunk driving database. Do they have drugs in their system? And every drug would get coded together. Now, in Colorado and a bunch of other states, they've started to peel out marijuana in their testing. The problem with that is it ultimately often leads to, hey, there's a lot more people with marijuana in their system. Yeah, because we started testing for that specifically, and a lot of the other data was sort of mushed together from a decade ago. Last but not least, and again, not to harp on this point, but it's why we need more research on this point, plus a whole lot of other things. The vast majority of people who have marijuana in their system, when they get into an accident, particularly a fatal accident, also have alcohol in their system, also have other drugs in their system. And so how you piece out effectively, is it just the marijuana? Now, again, you could say, and people would be inclined to say, but yeah, people who are using marijuana are probably more likely to use alcohol and probably more likely to use other drugs, whatever the environment is, legal or not. So that counts as a problem. But other people would say, no, no, no, just marijuana use. That doesn't make you a more dangerous driver. Particularly interesting is there's some studies that actually suggest that marijuana makes you a safer driver, but most of those studies are done in states where marijuana is illegal, and there's good reason to fear that people are driving more cautiously because they know they have marijuana in their system, right? And one of the funny things about drunk driving, which is a real problem, is not only does alcohol tend to make you a bigger risk taker, but people who will have maybe four drinks and think they're under the limit aren't thinking to themselves, I better not get pulled over is then I'll be in trouble, right? They're just not processing it that way. Whereas when marijuana is illegal, people may be thinking that no matter how much marijuana they've consumed, but you make marijuana legal, and now maybe people are more comfortable driving stoned, especially if they've been convinced by this conversation and others, well, it's not clear being stoned makes me a worse driver, and so here we go, right? And so it's a hard one to unwind, and that's just one of a million other different issues that we need better research on, and we particularly need federally funded and federally not just allowed, but supported research across a range of issues. What's fascinating, and I don't know if you knew this when you were writing your question, but literally just in the last week, both the Senate and the House have passed marijuana research bills. Now, what's interesting is they're slightly different pills. Some are more focused on medical research. Others are focused on research more broadly. But again, this gets back to the, like, why weren't we doing this 25 years ago when California passed the medical marijuana initiative? Like, that's when we sort of started the research at the federal level. And some people would say, oh, we do a lot of research. Some of the prohibitionists emphasize that we've had thousands and thousands of studies about marijuana and its health effects. The problem has been historically NIDA, a federal agency that's sort of focused on drug issues and a bunch of other significant funding sources, have, roughly speaking, supported funding to show the harms of marijuana and other drugs basically 10 to 1 relative to potential benefits. So who gets funding are people who come up with proposals of, well, aren't you a worse driver if you use marijuana? Oh, here's some money. Go work on that. could you be a better driver when you use marijuana? And so hopefully we've gotten to a point where this research can now be more balanced and be well-funded. But I gave you that long-winded accounting of the driving issue because it's really complicated to do this work well. And of course, good scientists want to do 20 studies over 20 years, and that's not easy to do, especially if you don't have the resources. And so there's a lot of work to be done here, but I'm with you. I think Congress has failed by not getting us started on that. literally decades ago more effectively, but it's never too late to start. So I'm hoping these bills that passed on research will actually get to the president's desk and we'll be moving in that direction.

SPEAKER_01: 49:45

So we wanted to have a quick discussion about the tax issue and then after that turn to a quote quick and then turn to framing because there were a lot of questions about framing issue that some of the readings in your casebook elucidated for us. So Jackson and Autumn, you guys have two separate questions, but I think they raise the same issue, which is the possibility of overtaxation. Let me start with Autumn and then Jackson, you can ask yours and then we'll let Doug answer them.

SPEAKER_08: 50:16

So hi, I'm Autumn. I'm a 3L. So something that's interesting that I thought to consider in the sale of drugs is taxes that the states are sold in. So Colorado, for instance, the sale of marijuana helps the education system with the taxes. But the issue, though, I think sometimes these taxes are set high and might promote instead the illegal sale of marijuana for lower prices instead. So do you think there should be an emphasis on fixing the taxes to help maybe regulate the sale of marijuana Yeah.

SPEAKER_02: 50:47

And building off that, my question was, is placing an extreme tax on marijuana through something such as the MORE Act the right way to avoid the continuation of a local drug trade as people may continue to buy from a local illegal dealer to avoid paying the tax? Or is it likely that marijuana eventually would go the way of alcohol where there are very few illegal markets?

SPEAKER_05: 51:10

Wonderful question. And I want to promoting this space as I'm doing with every topic. You know, there's so much there there. We actually did a two-hour webinar with the center on some of the tax issues, and both of your questions sort of get to what I think is what a lot of advocates and reform-minded folks are sort of starting from, which is we think it's appropriate to tax, and an important point, not if you take certain models of marijuana reform, right? If you take a medical model, if you really think this is valid in medicine and should be developed and promoted medicinally, We generally say as a society that, you know, we shouldn't be raising revenue on people's medicine, right? Now we still do and we have a market-based system and there are sales taxes on a variety of medicines and things like that. But one thing that's interesting when you start digging into the tax conversation, and this was something that played out interestingly in Colorado, and it's a variation on, you know, which markets are we paying attention to and are we concerned about the tax burden? Colorado imposed a fairly significant tax on adult use when it came on board with that, but exempted medical users from that and they had assumed a whole bunch of people were going to move from the medical marketplace into the adult use marketplace because they thought you know those were really recreational users that had just gotten a medical card kind of on the sly and would you know readily give up that card especially because that card costs a little bit of money to renew every year and it turned out because there was no tax on the medical product, they would happily keep that card and pay less for their product throughout the full year with the lower tax rate. And so there's every reason to believe, not just in this market, but others, that tax influences consumer behavior. And your points both are, A, consumers right now, especially in prohibitionist states or even in just medical marijuana states, are turning to an illicit, tax-free market, essentially, to get their product is a tax-based legal system kind of have a hard time pulling them out of that. And I think the basic answer is yes, because economics are economics, but the longer answer, and I think that you kind of indirectly referenced it too, we see people for drugs, particularly recreational drugs, very comfortable playing a significant premium. Now you might say, well, that's because they're addicted and that's why they're still paying a dollar a pack on cigarettes, but look at alcohol, right? The relationship between what we pay at a bar and what the cost of that product is, produces remarkable profits, not just for the alcohol company, not just for the restaurant industry, but fundamentally for the tax man as well. And my sense is drugs in general, recreational drugs in particular, are kind of a luxury good. And as a luxury good, though there's certainly price sensitivity, I think that price sensitivity can be shaped by a lot of other luxury good realities, including my guess would be the vast majority of new entrants into the consumer marketplace for marijuana are not going to say, oh yeah, it's been fun getting this for, you know,$10 at the dispensary, but there's a guy down the block that I can buy it from a little baggie for$6. No, they're a little nervous about that. It's just like, I mean, I think I'm certain there are people who could make some money on the sly by selling, you know, Bud Light in red solo cups, you know, outside of most bars. And some people do that, of course, on game day, right? So, you know, there are times at which a version of an illicit market emerges. Although, again, to me, what gets me to the heart of sort of the framing here is, and nobody's like, oh, God, people are, there's a black market here on game day. No, it's like, whatever, because most of the time we want to go to the bar, we want to go to the grocery store, wherever it is where we can buy alcohol, and we're willing to pay a relative premium, a relative premium for craft beer, a relative premium for a variety of associated products that go with our alcohol consumption. I think my instinct is the cannabis marketplace over time, it may take a decade, it may take two decades, will become robust enough that we'll be able to afford taxing it fairly heavily without leaving the legacy market very sustainable unless and until they, in a sense, up their game and become just a version of what we've come to like, so to speak, in other products. Now, part of that's based on just how much we treat cannabis like alcohol, which, of course, is the sort of talking points for a lot of reformers in a lot of states. We have a campaign in Ohio that's very much built in that model. In Ohio, not sure how Virginia does it, I can literally go to my grocery store and buy every kind of liquor. a little bit of a premium though they're all advertising you know state rock bottom prices right so they're competing on price a little bit but you know there's still significant taxes built into that i can buy it at my drugstore right we have beer and wine at my drugstore down the block for me and if cannabis is there particularly right if at every place i might want to access this drug i can buy it through the licit market i think that significantly diminishes the illicit market's potential place, right? And of course, one layer of this that's been true, especially in a state like Ohio with our medical marijuana regime, is we have a very limited number of dispensaries. And before the pandemic, they couldn't deliver. They didn't have drive-by pickup and other things like that. It's important to appreciate that it's not just the illicit market has historically been the only market and doesn't have taxes. They're a lot more convenient. for most people if they've been using that market regularly. Presumably they have the number on their phone and they text or they call and they get access to product. But my sense is, I'm not a regular engager in the illicit market marketplace, but my Walgreens is open and more accessible most of the time than the drug dealer, right? And they have a richer set of products. And I think I'm less worried about getting rid of the illicit market and less worried about taxes being too high that I am worried about the misuse of those taxes or, and this is what we see in alcohol, the industry ending up being a very vocal opponent of any efforts to raise revenue and use that revenue for anything other than to help their marketplace develop effectively. And so, but figuring out those tax and then the part that's especially dynamic about this in some of the federal proposals, I'm very much against. a heavy tax burden at the federal level. So I wanna actually leave room for states and localities to impose the taxes at heavy levels as they see fit to generate revenue at the local and state level that I think is much more likely to be well targeted to the communities that I think all of us think need the most help with whatever extra resources this creates. And so it's not just a question of how high are the taxes are, but how do you structure the taxes to make sure the revenues that's generated is likely going to the right place and is subject to the kind of political accountability that I think oftentimes we think at the federal level doesn't do a very good job.

SPEAKER_10: 58:26

Follow-up

SPEAKER_01: 58:26

from Courtney.

SPEAKER_10: 58:27

Yeah, so something that I thought about based on your response about kind of on pulling people out of the illicit market, I guess, when it is legalized, is I was thinking about states or areas like in D.C. They have this gray market of gifting or donation-based kind of quote-unquote sales, for lack of a better term, or trades, where you know, it's no longer the situation of somebody going and buying the$6 bag of weed from the sketchy drug dealer, but it's more of like an actual small business that some of them do have storefronts and it feels like a lot more like going to a marijuana version of Walgreens. So do you feel like, and I think Virginia kind of has adopted a similar approach, but not as explicitly, in that kind of situation, I feel like it throws a wrench in being able to have the benefit and the draw of, well, now you have a legal storefront because they've had years of having this kind of underground gray market. So yeah, I guess I was just thinking about that in relationship to the tax issue.

SPEAKER_05: 59:36

Well, and it's a great question about what do our markets look like right now? And we've definitely distorted them profoundly for the last 25 years or really for the last 100 years because of, again, kind of big government or now slightly smaller government still not doing things particularly well right and so you know the way in which we constructed starting in california and other states medical marijuana marketplaces necessarily meant people got in the habit of either lying about their condition or having only access to certain kinds of products in ohio for example when we passed our medical marijuana law you're not allowed to smoke but you're still allowed to think okay does that make a lot of sense probably not although there's a back story of how that came to be. There was a political compromise, but it meant that people who were prepared to be part of the legitimate market would need to vape rather than smoke, and that probably meant they learned about and got access to vaping products in a way that, again, good, bad, or indifferent, shaped what the consumer base looked like in Ohio and will probably influence it long-term. You're making the point, this was true in Vermont for a little while, where they had legalization but not commercialization. That's where DC has been stuck for a while. And that's ended up shaping the marketplace in a lot of ways. And I think it's absolutely right to see that legacy as kind of influencing what the short-term future looks like. Part of what I think I'm either excited about or scared about, depending on what day I think about it, I don't think we know what marijuana as a free legal product, legal and commercialized in a variety of different ways and used in a variety of ways, will look like for its relationship to maybe its human population or the American population. We've never been, at least in my lifetime in modern history, kind of free from the shadow of prohibition and the way in which that's shaped markets and stories. And again, I can't help but always kind of lean on alcohol and be like, Wow, when I was your age, there was this thing called wine coolers. And that was like, anybody heard of a wine cooler? Kim's laughing, of course, right? Because she remembers these days. That was going to take over the alcohol industry, basically, because they figured out a way that you bring it to a party, it was kind of like wine, but not really, and you could drink it like beer, but not really, and both men and women seemed to like it. It was gendered a bit in the way it was promoted, but you could not go to an 80s party and not have wine coolers. And then somehow the marketplace decided that's kind of dumb and geeky and largely because a generation of kids are like, why would I drink what my parents drank? And so now you're all drinking White Claw, right? And is that going to stay? I don't know. You know, it's kind of goofy too, but you know, you can't go to a party and not see White Claw, right? And that's

SPEAKER_01: 1:02:22

the first thing I, Doug, that's the first thing I thought of when I first saw White Claw. I'm like, wait, is this just like wine coolers again? And,

SPEAKER_05: 1:02:29

and again, you know, wonderfully, this is what a market does. This is how consumer bases evolve, right? You know, we'll, a generation from now, edibles be the only way people think about marijuana and smoking is, you know, even if marijuana is seen at least among certain populations as the equivalent of smoking tobacco. Again, the irony of that is the edible market emerged as robustly as it did, largely as a function of Colorado being the first legalization state, a whole bunch of people doing marijuana tourism into that state and then discovering, oh, my hotel doesn't let me smoke here. And I'll lose my$300 security deposit if I smoke legally in my hotel where I'm a tourist. But how am I going to, oh, I can have an edible? All right, I won't get in trouble for that. And edibles exploded. And folks who were involved in the initial regulations were like, everybody used to smoke marijuana. We didn't regulate edibles because we didn't even think about that. And then it wasn't the realities of people didn't want to smoke. People wanted to smoke. But as tourists, they didn't have spaces to smoke. And I really want to emphasize that when it comes to public consumption more generally. right? When are we going to have pot bars? And even more importantly, are those going to also have alcohol in them? Are they also going to have a variety of other, you know, drugs potentially, right? If we go down this route with psychedelics and others, and those stories may end up shaping what the marijuana market looks like more than just kind of individual marijuana consumers, right? And so I definitely think it's right. Anybody trying to do this and the old economists, in the long term, we're all dead, right? In the short term, these market dynamics are going to have all sorts of echo effects into how this unfolds. But I think it's important to be just kind of open-minded and curious. Like, what does responsible marijuana use look like? If and when we get to a moment in which we really do treat it like alcohol, or we really do have maybe some medical breakthroughs, then you might say, Oh, then it's actually probably kind of more like opioids. Well, that's a scary story to some degree, but it's not in the sense that there's not the same overdose potential and hopefully there won't be the same mismarketing. of marijuana as medicine that gets people to use it in a dangerous way.

SPEAKER_01: 1:04:44

The discussion we were having earlier and comparing marijuana to alcohol is I think a good segue to Alex's question. So let me turn it over to

SPEAKER_03: 1:04:52

him. Sure. Thank you. Hi, Doug. Thank you for joining us today. I'm another three out here at UVA. Yeah. So I think, you know, we have all these comparisons between marijuana and alcohol or tobacco or medicine. And it seems to me like marijuana is a unique enough product where those comparisons don't, none of them does the job, right? You have to sort of weave in between them. And when I think about it from a clean slate without trying to make any comparisons, I come to the conclusion that you said earlier, which is that marijuana is less dangerous than the black market we've set up for it. The regulations are what are doing the harm. So how much value do we really get out of doing these comparisons? Is it just a framing thing for activists? Or what's the barrier for us just starting from a clean slate and arguing for the pros and cons of marijuana

SPEAKER_05: 1:05:46

on its own? It's a terrific question. I love coming up with analogies to all sorts of things because I do think Marijuana is sui generis in lots of ways, but part of it is also to kind of inform our understanding of all these other things, right? So to the extent that this is classic academic law professor, it's great we talk about marijuana because then we can understand everything else a lot better, even if we don't understand marijuana better. But one of the things, and a colleague mentioned this at an event early on, there's almost nothing in our society that we sensibly and quite rigorously treat as both medicine and fun. It's quite possible. We talked about research. There might be such a thing as medicinal alcohol. Certainly during Prohibition, there was a carve-out for medicinal alcohol in federal law, and so a lot of doctors got very popular as prescribers of alcohol for relaxation and sleeping, especially if you think about what we often hear quasi-medical marijuana patients emphasize. Oh, it helps me sleep. It helps me relax after a hard day at work. Well, people use alcohol for that purpose. Pretty regularly, and yet we don't label it medicinal, not because it maybe doesn't deserve that label, but because we as a society just have a hard time framing anything in both camps or kind of understanding how we could treat a drug in sort of both ways. And that may itself be a problem we have. That's where I sort of get to the, can we just sort of look at marijuana as marijuana? That's just hard. We don't know what it is, right? We don't even know what term to use. I'm not supposed to say marijuana, maybe I'm supposed to say cannabis. I don't like actually using the term cannabis anymore because technically the Farm Bill of 2018 made the cannabis plant legal as long as it has a low enough THC level. Of course, THC is the Delta-9 THC, and I trust you all have the same stores near you that I have near me where people figured out how to synthesize CBD. in order to turn it into Delta-8 THC, which we still don't even know if it's more dangerous, less dangerous, depending on how you manufacture it. What is CBD? Apparently, there's seven different compounds. We could call CBD that can do 12 different things. So when you say, like, it's perfectly sensible, let's just look at marijuana on its own terms rather than comparing it to a bunch of other stuff. Well, you know, is it the whole plant? Is it hemp? Is it the CBD chemical? Is it the THC chemical? Is it some combination of those things? Is it, I mean, I'll go even further. When we talk about marijuana use, are we talking about the use of a product or are we talking about an activity, right? I don't think we think of really marijuana sort of comparable to food or even drugs, right? They're all hard labels. And of course, this is how I start my class with like, well, what's a drug? And it's actually really hard to define that. And most drugs are defined as affects your body, but not food. I'm like, well, that's not really very satisfying. Definition, but okay, if you say so. And so I think you're right, and it's an important point to highlight, is what the chapter was supposed to emphasize. Look, we had a history with prohibition, with big government, with alcohol, that we all decided failed. So therefore, calling it alcohol or like alcohol is good for the reformers. Interestingly, we had a history with tobacco that you could say was the failure of big government or the failure to regulate effectively. that has produced all of these public health harms. Okay, that's why the opponents of reform say it's like tobacco. And of course, there are other reasons to see it as comparable in a bunch of different kinds of ways. And of course, there's all the other drugs that you can focus on. I think maybe the next question is going to zero in on, I actually think there's real value in comparing it to other activities as well. And part of that is not just the story of, hey, maybe it's like skydiving, because It's risky if you don't know what you're doing, but if you know what you're doing, it's fine. But even more so, and this is again where I think comparisons help us unpack somewhat, not just how we think about this activity or drug, but also how we might think about pushing culture and regulation and markets. I'm not going to go skydive alone. You know, even if I were to walk on the street today and somebody's like, hey, 20 bucks, I'll take you up on an airplane and you can just jump out whenever you want. I'd be just like, Well, that's crazy. Of course, that can happen with marijuana. You know, hey, 20 bucks, you can have some marijuana and do it alone. Now, fortunately, I think marijuana usage, especially one time, is a lot less dangerous than dumb skydiving, right? But to go skydiving, we probably want to make sure we're with people who kind of know how to walk you through it, right? And there's a bunch of other risky activities that we kind of allow, in part because the market and our culture prevents people doing it in the worst kind of way. And I do think, and I think maybe this was in one of the other questions that somebody asked either already or probably before, that I think is a really important point. The culture of marijuana use has been largely a stoner culture. And that may be itself part of why there's a lot of opposition to it, right? If the culture of skydiving was a whole bunch of crazy people going up there and then, you know, falling to their death, I suspect we'd have a lot of opposition to it. legalizing skydiving, right? But, you know, that's not what the culture of skydiving is, right? And, you know, that's another layer, though, and this is where we can get back to the race issue and socioeconomic issues and all the biases built into our system. Part of what's driving resistance to the culture is a set of perceptions, conscious and subconscious, about that, right? And so maybe this is the way to wrap up a long answer to a is going to be in their mind making comparisons of one sort or another. And so to sort of pull those out, talk about them and think them through a little bit more, I think serves us well from a policy and a regulation perspective. But that's where I have the luxury of being a law professor. I got plenty of time to do that and I get to do it with cool people like you.

SPEAKER_01: 1:11:41

Turning to Samantha, she was actually interested in the comparison to prostitution.

SPEAKER_00: 1:11:46

Hi, I'm Samantha and I'm a 2L at UVA. And something that I thought was interesting is that you see with prostitution, a lot of people try to justify it's illegality through um saying that it's like dangerous um and lots of arguments about safety when in reality we see that legalization helps protect sex workers from violence disease um and other things and i think people against the legalization of marijuana turn to similar arguments about like the detrimental effects of marijuana and a lot of things that aren't proven to be true. And I think the real question for prostitution and marijuana is like the safety of who. I think a lot of people just don't want their family members or someone they know having easier access to prostitution or marijuana because they morally believe it's wrong. And I don't think it really stems from caring about the safety of sex workers or marijuana users. And I was just wondering if you could speak more about the comparison between prostitution and marijuana and if you think that would be a helpful comparison at all.

SPEAKER_05: 1:12:55

Yeah, I think it's a very interesting comparison. The way I tend to, though this is kind of an incomplete accounting of the comparison, is to highlight politically an awful lot of folks advocating for at least the decriminalization or the full legalization of sex work, quite expressly appealing to a harm-reducting frame. And I think that's a little bit of what you said that we're sort of talking about. Look, whatever else you think about this activity, it's going to happen. And if we legalize it and regulate it, it'll happen safer. And yet, I think you also put your finger on, yeah, but an awful lot of people think either for themselves, for their loved ones, or maybe for society as a whole, but this activity shouldn't happen. And at the end of the day, and I think this is what we really see if you drill down hard on the prohibitionists, you know, sort of strongest and most heartfelt point. Hey, I don't think there's any way to reduce harm, whether it's through decriminalization or legalization or some other mechanism that doesn't directly or indirectly signal, we don't like this, or I'm saying that a little bit backwards, but I think there's this not misguided fear of legitimization that I think is really driving certainly opponents to legalizing sex work and a variety of other kind of related activity, and I think are at the base of opposing marijuana legalization or decriminalization of drugs more generally. But the clearest way in our society, so they would say, I don't think they're wrong to say this, to tell everybody this is bad and evil and it shouldn't be done and just say no and continue to drive forward as a matter of culture and society, that this is not something we think good people should do, is to make it illegal, not only criminalize it, but punish it pretty darn severely. Oh, and if people aren't getting the message because they're still doing it, let's punish it more and let's continue to send that message. And I think this is the part that's particularly worrisome as you think through the challenge of breaking through that divide is not only is there understandable foundation for this view of we tell people this is wrong by making a criminal, but I can have an easier time talking to my child, talking to my neighbor, talking to whomever it is when it's stated in these black and white terms, right? That it's not just sends a powerful message. This makes it easier for me in my life to deliver on my own moral commitments. in a way that harm reduction approach even if I am sort of sincerely invested in reducing harm and there's a wonderful organization down in Mississippi I've gotten to know I think it's called End It For Good that's a number of I don't know if evangelical is the right word but very Christian oriented very religiously based advocates for ending the drug war and it's based very much in a everything you think you're against we deal with better by ending the drug war, right? You're sort of worried about people having access to drugs and being harmed by it. We'll do that better if we legalize and regulate more effectively. You're worried about bad people coming over the border or whatever else is the trope for who's using drugs to do harmful things to our society. We'll address that more effectively by legalization. But I don't think, and I think it's important to kind of keep this in mind, whether it's the prostitution comparison or any other comparison, if you fundamentally not only think This is something that morally bad may not even have to have to frame it, just something people shouldn't do, something good people shouldn't do. And it's so easy to lapse into, I want my government. Send that message as powerfully as possible. And that necessarily means prohibition and criminalization and punishment, not, well, it's allowed, but regulated this way and isn't things safer and armor and so on and so forth. And again, that... a kind of, I don't want to call it extremism, but sort of absolutism, can be very satisfying in thinking about the world being easy, and maybe even in a particular community it works, but it does, to some extent, require ignoring the human condition and the fact that, you know, criminalization has historically, especially in the drug setting, but in a lot of other settings as well, done a lot more harm than good for everybody.

SPEAKER_06: 1:17:14

Let me turn to Tom. Hi, Doug. I'm Tom Del Regno. I'm a 3L. And I'm To an extent, the way the criminalization and decriminalization processes sort of played out, it raises the question as to where the burden of proof should rest in sort of deciding the illegality of goods and services. And a recurring concern in this space has been when claims used to get a law enacted later turn out to be incorrect or unsubstantiated, yet the law remains in effect. And here, obviously, we think about the effort to persuade the public that marijuana is physically and morally harmful. And it kind of harkens back to, you know, the reefer madness campaign that was perpetuated in the 1930s and beyond. And here we sort of witness claims of harm as a justification for prohibition devolve into claims of precaution when later research sort of erodes the original claims of harm. And sort of in light of this, you know, in context where a choice to use a good or service uniquely affects the user alone. Do you have any thoughts on if it would be more beneficial to have a policy to sort of adopt a presumption against prohibitions or limitations? in the absence or significant lack of evidence of harm?

SPEAKER_01: 1:18:24

Tom actually had another question related to that. And I'm going to ask him to get that out there as well so you can respond to both of them. Tom, I really liked your cautionary tale about the power of government to persuade and sort of the unique resources and the way in which they've been deployed here, which I think follows up on your reference to the Reefer Madness campaign.

SPEAKER_06: 1:18:47

Generally, you know, a large segment of the population is prone to think that public service announcements and campaigns by public bodies, you know, as an example to combat cigarette smoking, are an appropriate role and activity for the government to engage in. But it seems, you know, the government has a particularly potent ability to ascribe to goods or services sort of a moral narrative. that influences the extent to which they are used, who the public thinks is using them. And what has been concerning, particularly before the emergence of the internet, is that the public just had a lack of access to information that made it difficult to sort of challenge these notions. And again, we live in a different age now where we have access to internet and we can take in information, evaluate the claims that are made. But do you think we should still be wary of the government's ability to influence notions of morality and public perception? Or do you think the increased access to information sort of mitigates this concern?

SPEAKER_05: 1:19:46

Two great questions and apologies to use labels to suggest, you know, there's a kind of a libertarian theme kind of gurgling beneath. And I say that because I have a libertarian theme gurgling beneath. And so, you know, on the presumption point, and I would do it beyond even a concern for, you know, a past history of, you know, bad information or, you know, government promotion of a particular attitude towards, you know, whether it's a drug or an activity or whatever else we're talking about. I very strongly believe, and I think this is where we've gone wrong, it's part of the underpinnings of mass incarceration and other problems I see in our society. We've turned to criminalization as a first resort rather than a last resort in our government toolbox. oh, we don't like people texting while they walk down the sidewalk. Well, let's make that a crime. Oh, people are still doing it. All right, we need then at least a year in jail if you do that, right? And so it's not just we turn to criminalization first rather than other sort of government suasion tools. We've turned to imprisonment often first among the only punishment that really counts. And I just, For me, there's a...

SPEAKER_01: 1:20:56

For some reason, at this point, I got kicked off the internet, which caused a break in Doug's response to Tom's excellent question. I'm sorry about that. It picks back up in just a minute, and I don't think you miss very much.

SPEAKER_05: 1:21:07

You know, in answer to Tom, it was giving my grand theory of government, which is, you know, I want bigger governments to spend more time trying to help educate, though I think part of your question, Tom, was that there's a long history of you know, we can focus again on the race issue or a bunch of other ugly parts of American history that highlight that the wrong factors have been influencing how the government tries to educate. But that I do think in a digital world, I do think in a marketplace that also tries to educate or inform in a variety of different ways, it's valuable to have a set of non-market entities that have their own sets of commitments. I do think there's a risk that they'll have their own sets of biases. But I also think, and again, this gets to my grand theory, having a nice, healthy relationship between government players and market participants kind of gets us closer to a good space. And again, I tend to use education as a good example of that. I think it's great that we have some private colleges and we have some public colleges, right? I think it's great that we have a lot of those things too, right? It's a little bit of a wisdom of the crowd sort of story. And so another sort of layer of or at least responds to your question is I think I like to have very different views about sort of government as educator at the federal level versus the state level versus the local level. And I think maybe one of your questions should have got to this issue. I think in marijuana policy, I think really all policy, localism has a lot more benefits than we realize. And that, yes, there can be value in having the federal government doing stuff of all sorts, I would like to have them especially empowering states and localities to have the kind of laboratories of democracy that is long in our discourse, and I think the marijuana experience is an incredible version of, and I definitely think that for all of those entities, especially the larger the sort of government, the less they should be absolute in any respect, right? So absolute prohibition, blanket prohibition just seems like a very bad national policy for anything. And of course, you know, whether it's marijuana, whether it's whatever else that you've seen in this space, you know, individuals will resist, even if it has to be on an illicit market, at some point localities and states will come up with their own way of doing things that they think are better policy for them. But I would also say at the other extreme, right? oh, let's get the federal government out of drug policy altogether. Let's just not have them do nothing. Well, no, that's not great either, right? Partially because drugs are going to move across borders and you're going to need some mechanisms to help better understand and regulate just what's moving that way. And of course, they move internationally as well. But also, the federal government is going to be able to do certain things, partially because they can print their own money, but partially because the way in which federal activity garners attention, attention from the free market media, attention from politicians and voters, you know, at the local level, at the state level. All of that means they've got some important responsibilities and important opportunities to, you know, nudge the consumer, nudge the marketplace. And again, that's where I think It's easy to say in a generic way, you know, let's be really nimble and let's have a bunch of different flexible mechanisms at every level of government. But I think, again, the sort of drug policy in general, marijuana policy in particular, is highlighting over and over and over again how hard it is to have kind of a simple policy and then be confident it's going to work, you know. consistently over time.

SPEAKER_01: 1:25:00

I'm going to turn to Neva. I believe that Neva is the one who had brought up the stoner culture reference and the need for perhaps a PR rehabilitation. So I'll turn it to her. Hi,

SPEAKER_07: 1:25:10

yes, I'm Neva Jones. I'm also a 3L here at UVA. So when we're talking about messaging, whether or not it's from the government or another agency, Many of the articles that we read in Marijuana Law and Policy, they touted the beneficial health aspects of marijuana. But if a drug can be placed in a regime, regardless of whether the designation decision is backed by empirical evidence grounded in science or medicine, is that the most effective strategy? Could marijuana be moved to the market regime simply by a better, more effective PR campaign? As Professor Kravik noted, maybe something that combats the lazy stoner narrative or even something that just makes marijuana use more normal or more mainstream.

SPEAKER_05: 1:25:56

It's a wonderful question, and it's funny, it makes me think of what was a, I don't know if it was disastrous, but not sustained ad campaign by what I consider sort of the leading anti-reform group, they go by SAM, Smart Approaches to Marijuana. I don't know if anybody's seen their worker, Kevin Sabet, who was actually in the Office of National Drug Control Policy for a number of years in the Bush and Obama years, has sort of become the leading voice against reform. And about five or six years ago, right when sort of Colorado and Washington were getting their market open and a bunch of other states were debating initiative campaigns or other ways to do reform, they ran, I think it was in the Times, it was certainly in a bunch of big newspapers, this gigantic full-page ad which showed a guy kind of wearing tie-dye and sort of hippie-ish a little bit in their, like, headdress or whatever, but then in, like, a three-piece suit or a very fancy, like, Brooks Brothers suit and just, like, you know, corporate money was what it was supposed to convey. And, you know, sort of the campaign is something that's sort of themed in a bunch of different ways, sometimes more successful than this is, you know, this is not your 60s marijuana anymore. You know, this is corporate America trying to sort of take over the weed industry and become the next big tobacco, right? And that was what they thought. And it's a decent talking point at times, but everybody in the advocacy community universe was like, hooray, they're going to get us away from that stoner image that has been killing us for so many years with a certain segment of the population. You know, the folks we really need to move to get this done are a bunch of sort of money marketplace GOP type folks. And when they see it's white people in three-piece suits that are behind this, sounds good to them, right? And so it's to me sort of a good example of both the opportunity to and a range of challenges around kind of rebranding what has all this history, right? And of course, again, I bring that up, partially piggybacking off of some other points we were talking about earlier as well, which is it wasn't just, we want to show you that it's sort of being corporatized and, you know, big marijuana is emerging, but this should scare you like big tobacco because we have that history that still sort of, you know, burns us to some extent, you know, jokes aside. And so that's what I want you thinking of when you're hearing this discourse about reform. Firstly, I think we're at a point where it's not just the stoner culture is potentially harming perceptions of marijuana, especially among communities that don't know this well. It's that the industry, and this is true for alcohol and other illicit activities as well, is always going to be attentive to the heaviest users, right? That's where their profit margins are. That's where their customer bases are. That's where they hope and this is the concern, to turn more people to be like. And so what we've seen is not just the persistent perception of kind of donor culture and the way in which that may continue to bias reform efforts, but also a worry that the industry is advocating against sensible regulation that is because their heavy users, their early adopters, you know, the historic users of the illicit marketplace they don't want thc limits for example that's my favorite example here where if you look at the public health science and we haven't talked about that too much but i'm happy to do so if folks are interested i think the biggest scary thing about a modern legal marijuana market is if the products are 20 30 40 thc and there isn't a super robust marketplace for lower concentration marijuana because it seems like that's where there's more danger in long-term use and excessive use, just like if all you could buy is gallons of whiskey, I don't think that would be a healthy alcohol market. And yet, there's a lot of pushback from the industry to try to stop THC limits in regulation because they know they've got a customer base that really wants that heavy-duty stuff. And likewise, there's been talk about prohibiting women who are pregnant from accessing marijuana and different ways to try to regulate that. And again, the industry is kind of very against any kind of, I think they're okay with warning labels, but no, there shouldn't be a rule that we can't sell to pregnant people because it just shouldn't be that kind of rule and that will scare people away and so on and so forth. And so I think we're getting toward a richer understanding of who are marijuana users. But I also think advocates for reform would be wise to do more of that and work especially harder. Actually, there was a big debate last point on this front, which I thought was really interesting. And again, it's not in our textbook because it's already an old story. But when I first started teaching this in 2013, 2014, one big interesting conversation point was, is marijuana reform kind of like gay marriage reform? Because at that time, you know, all the old people were against it. All the young people were for it. It was happening state by state. And it was like, oh, wow, look, these are progressive movements that, you know, smarter young people are getting us old people to stop dealing with. And I bring that up in part because there were a lot of people in the marijuana community who said, gosh, maybe we need to adopt what had been in the 80s and 90s, a kind of popular but controversial move in the LGBT community, which was trying to out more, quote unquote, respectable people as gay. And I think it's actually quite interesting that there's a handful of celebrities and music stars who marijuana use is part of their brand. But if you really think about it and look at how this gets kind of operationalized, every awards party has got alcohol all over the place. And, you know, oh, there'll be weed after the party, but there's still kind of this stigma. There's still this kind of sense of even in places where it's been legalized and there's so much conversation about, you know, how we're at a different place, it still carries that baggage, whether it's the stoner use baggage or just the, yeah, I like to use this, but I just don't want to talk about it. I don't want to be outed. That was the, that was the debate. And there was, I think a fairly consistent choice among the marijuana policy advocates. We're not going to go that route. We're not going to try to make an effort. I like how many people we know in sports culture and entertainment culture, you know, in the music industry are regularly using this drug and it's actually part of their sometimes creative, creative work. And I think that's kind of like the Alyssa Mark. I think we'll get there. Like, I think your children will not know what the stoner is maybe, or you'll have to like educate them about that. It's like when you watch the reefer men, this movie, you're kind of like, you know, You're giggling. They're all really well-dressed. Is that what the scary user was in the 30s? A really well-dressed person playing piano? Okay, I guess so. And so, you know, I think those are things that are going to change generationally, whether we want them to or not. But I think it's interesting to think about, you know, whether reform-minded folks, you know, would be well-served. And last little point, I don't know if you've seen the other, the marijuana mom has been a little bit of that. discourse, kind of, you know, kind of like the wine mom. And of course, the pandemic has made us all rethink our relationships of all sorts, including substances. But, you know, they all have their own pros and cons, both as an advocacy matter and then just as sort of, you know, basic morals about what we think advocacy should look like.

SPEAKER_01: 1:33:36

We turn it over to Madison.

SPEAKER_09: 1:33:38

Hi again. So my mother-in-law is actually a prosecutor in Texas and in a pretty conservative district of Texas that is kind of known for going ahead and giving the toughest sentences that they can. And she was speaking to me one time about kind of the issue that she's been running into when selecting juries, where particularly on drug cases, a lot of jurors are just saying either we won't convict or we won't follow sentencing guidelines because we think that this is silly that these types of claims are still being brought. And so I was just curious if you could speak a little bit to that shift in attitude. And if you think that that shift in attitude could practically weaken the laws that are on the books in places like Texas, where it seems unlikely that we have recreational marijuana being legalized in the near future.

SPEAKER_05: 1:34:27

Yeah, so I mean, you know, I'm a criminal justice guy, and I like how the criminal justice system, when functioning well, has lots and lots of checks and balances. And I especially think it's just one as I sort of see it, of a variety of ways in which the people have power. And of course, that means lots of different things. So one way people have power is they can vote out. I'm not suggesting that they do, your mother-in-law, if they think she's prosecuting too many of these, right? A lot of people who function, especially at the state level in the criminal justice system, are subject to election. And we've certainly seen, you know, in the progressive prosecutor movement, a number of folks, you know, actively campaigning on, I want to arrest people for this. And again, I think it gets coupled with in a way that it'd be interesting to hear your mother-in-law's vision. that, hey, I'm going to say that not because I think I shouldn't arrest people, but because I know juries aren't going to convict people of this. And so, therefore, it's just a waste of time and money to arrest people and then have them get acquitted or have the system not follow up. In fact, it sends a worse message to do it that way. That's why we need reform. That can be, through the criminal justice system, an engine of reform. And again, I do think in California, one piece of what got us medical marijuana to begin with was a significant number of AIDS patients and others using marijuana, being arrested, and the system kind of saying, this is a big waste of time. These people are dying anyway. Why are we doing this? And that sort of bubbled up. I'll focus on Texas some more because New Mexico, some of you may know, just last week opened the first legal market, the fully legal recreational market that borders on Texas. And there's an interesting debate going on about whether lots of people in Texas will start driving to New Mexico to go buy their weed. And of course, there's two layers to that, right? One is Texas isn't going to love losing a lot of tax revenue that way, although it's currently not tax revenue, it's just in the illicit marketplace, presumably. But I assume, notwithstanding that there will be a significant amount of border traffic that way, I remember thinking about this in the context of Colorado being the first mover a decade ago, but I assume Texas won't spend money putting a bunch of police on the border to arrest people as they're driving back from New Mexico or making the claim that we have probable cause because you have Texas plates and you're driving from New Mexico into Texas and you kind of have a car that looks like what we think is a hot user's car and so on and so forth, right? So choices are being made in real time that are reflecting, kind of shifting beliefs and attitudes. And my guess would be if literally... A town on the border between Texas and New Mexico started to detail all of their police force to just be on the border to try to catch people driving back from New Mexico. A town would be like, what are you doing? Really? This is what we're spending our time and money on now, right? And that's what we've seen just in the Northeast states that there's been more and more moves to legalization as states have done it. And of course, this is where I think gambling is an interesting parallel here too, right? We've seen gambling spread across the nation again because people will travel to another state to go gamble and there goes the revenue and if we can't beat them, let's join them, right? And so I do think that's one of the variety of forces that will get us there. But then also I think what we're waiting on or I'm waiting on in a different kind of way is have we yet to have any really bad stories from legalization and reform. And there have been a handful of, you know, kind of ugly cases that were prioritized right after Colorado legalized that seemed like somebody did a violent crime right after getting high or jumped off a hotel balcony. I remember that case got a lot of attention early on. But at the end of the day, I think the story of why reform continues to chug along, and I throw it out there 10 years from now, we'll be talking about not if Texas will legalize, but what form it's adopted and what that looks like, is because the harms of to the extent that they're identifiable and tangible are diffuse and also much more long-term. We'll see if we have lots of psychosis or lots of other health problems from greater marijuana use 25, 30 years from now, but the benefits are real immediate, right? The tax revenue, the economic development jobs, hopefully the reduction in law enforcement misuse of resources accordingly, and all of those realities is what continues to make me bullish on these reform tendencies and then the last piece of that is we'll tend to take in the harms like we'll just be used to it and so we're used to the harms of alcohol we're used to drunk driving and nobody's like well let's prohibit alcohol because there's a lot of drunk driving deaths we're like no we should deal with that better and i emphasize this point to get back to my we should use criminalization last and i'll tell a little parable here um it's only a matter of time before we all have self-driving cars, right? So that will kind of not quite cure the problem, but help it a lot. And we've already helped it a lot through market campaigns and other things, much safer cars that we have now than we had 25, 50 years ago. But I will emphasize one point that's, again, a part of the interesting worry as we think long-term about these sets of issues. We probably could right now have every single car mandated to have a passive alcohol detection system in the driver's seat. The technology exists, right? You've probably heard about ignition locks and, you know, people have to blow into a tube once they've got a drunk driving convicted. But we don't need to rely on that or make that a default. The technology is good enough that you could sit down in the driver's seat and the driver's seat would detect whether you have a certain BAC emerging from your sweat. And I'll be socratic for a minute. Who do you think has lobbied most effectively against having that be a federal or some kind of legal requirement in the creation of safer new cars.

SPEAKER_09: 1:40:33

Probably just like car manufacturers?

SPEAKER_05: 1:40:35

No, they're happy to do it. It's actually the alcohol industry and the restaurateurs. Realize how harmful it would be to alcohol and restaurant businesses if you knew, wow, if I go out and when they offer me that second drink, if I take that second drink, there's a chance my car won't start when I want to drive home. That's Not great for restaurants and the alcohol industry. It would be great for road safety. We probably have 5,000 less deaths a year from driving accidents. But again, markets and industries have a way of putting different priorities ahead of what you might call sort of extreme public safety measures, right? And so that's where if the industry that wants to be in Texas can leverage the experience your mother-in-law is having whether it's leveraging it through campaign donations or just telling the story of, look, people are there already. Let's just get it done. I think it's going to happen. It's complicated and challenging, but that's why a bunch of bright folks need to be continuing to think hard about this and continuing to push both market actors and government actors to be open-minded and straightforward in the work they're doing in this space.

SPEAKER_01: 1:41:50

Well, it was great to have you join us, and thank you again for doing it.

SPEAKER_05: 1:41:54

Thanks. Thanks for having me. Thanks for all the work that you're doing. I'm loving listening to this season. So keep up the great work and I'm honored to be a part of it.