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September 28, 2004

Marijuana: Enforcement Costs and Illegality

In an earlier post, "Why Marijuana Should Be Illegal," I argued that marijuana should be illegal even if it is a neutral activity, like watching bad TV shows, because neutral activities displace good activities. In that post, I explicitly put aside considerations of the cost of enforcement, noting that they could reverse the conclusion. But on reflection, I think I was wrong to say that. If we have decided that marijuana should be illegal, putting aside enforcement costs, then high enforcement costs would not reverse the conclusion.

The reason is simple: just because we make something illegal doesn't mean we need to enforce the law. To be sure, our current marijuana laws, though by no means vigorously enforced, are costly-- we do devote police time to tracking down major growers and dealers, even though I doubt police are spending any time tracking down users (as opposed, perhaps, to arresting them if they smoke in front of a policeman who is passing by for other reasons). But we wouldn't have to. We could limit ourselves to going after marijuana fields that the policeman happens to see while patrolling, and going only after dealers who advertise on national TV. The degree of enforcement is an important policy question-- an issue where the advocates of marijuana have largely won-- but it is separable from the legality issue. Minimal enforcement is close to costless (it could even be profitable, with fines and seizures); tight enforcement would probably be more costly than the current lax enforcement.

It's not obvious to me, though, that tight enforcement would be more costly to non-criminals than the current lax enforcement. Currently we investigate, prosecute, and punish dealers. This is expensive because enough profit is at stake for them to hide their activities carefully, to be dangerous to the police, and to hire talented lawyers, and we punish them with prison time, which is expensive. Users are more numerous, but each is cheaper.

The idea that illegality and enforcement levels can be separated applies generally. We could make pornography, adultery, homosexuality, cruelty to animals, and necrophilia illegal while spending minimally on enforcement. And in fact we tolerate high levels of many crimes. Consider burglary. We spend vast sums of money to catch and imprison burglars, but the War on Burglary has failed, a critic might say. Burglary is still common. But that we've failed to stop burglary does not tell us that it should be made legal, or that we should spend less on suppressing it.

Posted by erasmuse at September 28, 2004 08:40 AM

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It seems to me that what you present is selective enforcement; that brings up arguments re basic rights and the general disregard of law by the limp enforcement.

Of course the tight control that the gov't has over experimentation with marijuana, a substance that the gov't says has no known medical uses, prevents medical experitments re the beneficial effects of the drug: a very nicely closed circle.

IMHO there can be a situation where medical use is allowed but casual, self-dosing, recreational use is forbidden.

Posted by: Patrios at September 28, 2004 10:34 AM

This seems a particularly bad idea. Say we criminalize a range of things we consider undesirable, and then say they not be enforced except under unusual circumstances. It would likely be the case then that a large proportion of the population would be in violation of some morality law at some point. Then, say I publish something on my website critical of the government. Now, we have freedom of speech, so I can't be arrested for saying naughty things about the government. But the police could surely be asked to pay particular attention to whether or not I'm in violation of any of the numerous laws that aren't enforced much. And I'm thrown in jail for having a copy of Playboy, not for my anti-government comments. Enforcement is entirely arbitrary, and anyone (except for the exceedingly virtuous) can be thrown in jail at the whim of the administration. Don't think I want to live in that kind of a world.

Posted by: Eric Crampton at September 29, 2004 10:49 PM

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