On unintended consequences and the odd relationship between a traumatic pneumothorax and making marijuana legal

In Ports and pot, I asked Doug Berman rhetorically: Could it be that the new legal regime in the Rocky Mountains is a “win-win” for both the cartels and the State of Colorado? Doug responded. As usual his views were vigorously argued.

Needing a CT guided needle biopsy of my left lung, I stalled for time to address Doug’s trenchant remarks. At about the same time, Scott Greenfield, at Simple Justice, asked if everyone could play. I said sure. Now, Scott has posted an extremely well-reasoned response to my question. See Is The Rocky Mountain High A Win-Win?

It is the weekend. No medical stuff is scheduled. I no longer have an excuse for failing to defend my views about the idiocy of Colorado’s pot policy and my concern that such a policy may be a “win-win” for the cartels and Colorado (at least so far as sin taxes are a “painless” way of raising state revenues).  So, here goes.

Preface

First, today, I am not addressing medical marijuana. Indeed, I am glad that the Obama administration announced Friday that it was extending to the University of Arizona a waiver to study the potential medicinal benefits of marijuana. That said, if I were the King, and it was determined that there was in fact medicinal benefits to the drug, I would dictate that registered pharmacists dispense the drugs as opposed to street corner vendors.

Second, with regard to the broader question of making marijuana freely available, I found the February 26, 2014, editorial of the Christian Science Monitor, entitled “Warning signs on Colorado’s marijuana legalization” to be well worth reading. As the editorial points out, there is good reason to believe that Colorado’s experiment is dangerous and especially for children. Perhaps surprisingly, and as the newspaper recounts, the Governor of Colorado expresses many of the concerns highlighted by the Monitor.

Third, I thank Doug and Scott for their engagement.

Introduction

I have shamelessly used my illness as a foundation for recent posts to this blog. This iteration continues that ploy.

On Friday, I went to the University of Nebraska Medical Center for a CT guided needle biopsy of nodule in my left lung. The friendly and skilled assistant professor of medicine, Dr. Cris Vargo, who did the procedure, warned me of the risk of unintended consequences like a collapsed lung, referred to medically as a traumatic pneumothorax.

As I remember Dr. Vargo’s warning, about 25 percent of the time the procedure I underwent produces a pneumothorax from punching a needle through the chest and into the lung. Such a problem is not fun to fix if it does not naturally resolve. Nonetheless, the risk was clearly worth taking in my case. The chance of a lung cancer of a type different that my Hodgkin’s lymphoma diagnosis was real. If I had a second type of cancer that was  not discovered before I started treatment for lymphoma, that would not be good. So, I undertook the risk willingly.

Guess what? Yep. A traumatic pneumothorax developed. As it turned out, it resolved itself without intervention about three hours after the procedure. So, I was allowed to leave UNMC and we drove home. As I prepared to respond to Doug and Scott, the words “unintended consequences” rang loudly in mind.

Doug’s Comment

I asked Doug to answer the rhetorical question of whether Colorado’s experiment might be a “win-win” for the cartels and Colorado.  Doug’s answer was a non-answer. He simply slipped the punch, lamely, in my view, writing that there were “[l]ots of uncertain market variables in play . . . .”   Come on, man!

Doug then threw out a bunch of (disjointed) distractions.  He wrote that I should:

consider that legal sellers now have a reason to want to rat out the illegal ones and cops have more resources to focus on scofflaws. (Also, if Feds fix banking problems, legal folks can take plastic and not just cash.). Moreover, if Colorado citizens think use/sale of pot should be legal, cartels selling pot there only are just shady businesses avoiding regulation, not evil doers. Finally, as the moonshine comment highlights, legal sellers can and should be able to provide a more consistent and predictable product.

Doug apparently does not want to address the question directly, and for good reason.  As the Monitor’s editorial points out, President Obama and others are justly worried that: “If we start having a situation where big corporations with lots of resources and distribution and marketing arms are suddenly going out there, peddling marijuana, then the levels of abuse that may take place are going to be higher[.]”  Doug, I think the cartels are far closer in skill, money and guile to big corporations than they are to the mere “scofflaws” recounted in your response. Don’t you?

Doug then asserts a shopworn non sequitur. That is, “Why do you think ending pot prohibition is any more idiotic, RGK, than was ending alcohol prohibition?” Well, unlike booze, this country never had a cultural tradition of smoking dope. Alcohol prohibition ran against the grain of our history, no matter the justifiable health reasons behind the policy. For over 1,000 years, our descendants consumed alcohol as a part of cherished rituals. As a result, trying to put a stopper in that bottle was doomed to failure. Not same, same with dope.

Finally, Doug asks: “Just curious what drives your disaffinity for free markets and free people.” My flip answer is that I am German. I am all for free markets and free people except when I’m not.

More seriously, I think culture matters.  As a matter of fact, I think a productive cultural tradition is central to good government and a healthy society.  By and large, our culture has produced good government and a healthy society. We have never before had a history or tradition of smoking dope. I don’t believe that a marijuana culture produces good government or a healthy country and that being true, our government ought not help to normalize such a culture.

In this vein, there is a real, present and specific danger that by normalizing dope consumption, we will harm a lot of young people. As the Monitor editorial points out, “With easier access to the drugs [there is] a subtle message that pot is not dangerous, . . . . According to the National Institutes of Health, 1 in 6 16-year-olds who tries marijuana will become addicted to it.”

Why in hell would you want to tell a kid that smoking dope is just fine?  “Do as I say, and not as I do,” won’t work. After all, in Colorado dope is legal, profitable, and helps support Colorado’s treasury. That being so, it is inevitable that adolescents will view pot consumption as perfectly acceptable. To the degree that legalizing marijuana increases consumption among young people, and that seems a given at least to some extent, Colorado’s experiment is not only idiotic but it is a public health disaster.

Scott’s Post

Unlike Doug, Scott takes the challenge head-on. That is, he explains in great detail why Colorado’s legalization experiment will not be a “win” for the cartels. Scott’s reasoning is not easy to dispute, but Scott’s analysis requires that certain economic predictions turn out to be true. Essentially, he argues that price pressure will ultimately move the cartels to other venues and other products.*  Scott may be right, but, as he acknowledges, that may take a good deal of time and, even then, Colorado’s fixation on driving price up by regulation and taxation gives the cartels plenty of room to profit in the short and medium term.**

Ultimately, here’s what concerns me the most.  Pretty quick, someone is going to get real serious about scaling up marijuana production, wholesale distribution and retail sales in the legal market place that Colorado has created. According to the Monitor, Obama and his Justice Department fear that legit corporations will see the profit potential and gradually move into the market in a big way. (When that happens, Birkenstocks will be out!)  If that fear is real, and I believe it is, there is simply no reason to think that the cartels will not find ways to invest in this legal business as well. Indeed, the members of the cartels are certainly the most experienced “businessmen” in the marijuana trade. Just as the Mafia found ways to invest in and profitably use legitimate business (gambling, trash hauling, construction), there is no reason to think that the cartels are any less adept at doing the same or similar things with the legal pot business in Colorado and elsewhere.***

So, Scott, you’re analysis makes much sense. But, if it were me, and unlike you, I would not bet against the cartels.

Conclusion

Both Doug and Scott may be right, and I sure could be wrong. After all, I started this little discussion after talking dope policy with a Colorado doc who held a scalpel to my chest while I was enjoying the mellow feeling induced by Versed and Fentanyl. How’s that for irony?

The foregoing admitted, I can’t get over my fear that Colorado’s pot experiment will end with unintended consequences that are not good.  But what the hell do I know?

RGK

*“The average drug trafficking organization” can “lose 90% of its profit and still be profitable[.]” OrianaTillman and Lowell Bergman, Do the math: Why the illegal drug business is thriving, PBS, Frontline Series. This makes it easy for cartels to operate in states where pot is legal but relatively expensive. In short, I have big worries that the price will never drop far enough to drive out the cartels.

**See also  Marijuana Legalization Raises Fears Of Drug Cartels, NPR Boston, (Friday, February 21, 2014).

***For a fascinating a look at the cartels’ investment in legitimate non-financial businesses, see Sergio Ferragut, Organized Crime, Illicit Drugs and Money Laundering: the United  States and Mexico, International Security Programme Paper 2012/01,  Chatham House, pp. 9-14 (2012) (non-financial sector businesses).

38 responses

  1. As a dear, dear, friend of mine has often written: ” somethings are more important than others .” I am so happy the collapsed lung self corrected and you are in the hands of skilled doctors. I worry much more about you than the cartels but suspect you are once again the Oracle of Lincoln.

  2. Your Honor,

    While I agree with nearly all of what Greenfield wrote, his work is his. If the “Jeff” to whom you keep referring is me (as opposed to me being so self absorbed as to think so – isn’t it always about me?), I must demure and credit Scott.

    Jeff Gamso

  3. I think he may be referring to Jeff Greenfield. But then, that Jeff doesn’t have a mustache, so I can’t imagine why the judge would do so.

    And thanks, Judge, for the interesting question to play with. The nature of experiments is to find out what sort of unintended consequences happen. At least this one keeps people out of prison instead of putting them in, a very pleasant change of pace.

  4. Scott,

    Marilou and I thought we had fixed the truly idiotic “Jeff/Scott” fiasco. Sorry. As I wrote Marilou, I do think of you in the same way I think of Jeff Greenfield, long ago of the Yale Law School. Super bright and a great writer.

    Thanks for playing.

    All the best.

    RGK

  5. The only way I could rationally deal with what is going on in the world would be to get high and try to find some opening where my life would be relevant. But I have a cold, don’t like to smoke and don’t have any connections, the people in VT being all too interested in ratting others out. So, until Governor Schumlin and you stop thinking about the kids, whose parents should be parenting them, and allow me, an adult to purchase high quality weed at a reasonable price, I will remain irrelevant.

  6. Marilous told me, but I have an affinity for being confused with Jeff. I hope he feels that same, but I fear he would respond to my query, “who?”

    Thanks again, Judge, and as always, very best wishes.

    shg

  7. TF,

    Vapid? Oh dear!

    Truth be told, I seek to become a Midazolam “stoner.” I especially like to use it like a “blunt,” that is, with a sprinkling of Fentanyl.

    All the best.

    RGK

  8. RGK: I can’t get over my fear that Colorado’s pot experiment will end with unintended consequences that are not good.

    Life is all about risk, and weighing the costs. We know the costs of the status quo ante: a failed narco-terrorist state on our southern border, untold billions of dollars squandered enforcing laws brought to you by William Randolph Hearst, and hundreds of thousands of lives destroyed. My fellow Coloradans saw this and made the decision that if we legalized marijuana, things certainly couldn’t be worse.

    Obamacare isn’t perfect–it was not the best law, but it was the best law that could get through a Congress owned by vested interests–but it is better than the alternative. Sure, there will be some problematic consequences (most sane people try to stay off the roads at 2:30 AM, when all the drunks are driving home), but on balance, I expect the outcome will be positive.

    The test of how conservative you are is in how fearful you are of change.

  9. Ken,

    Good points.

    Your last words–“The test of how conservative you are is in how fearful you are of change”–well represents my view of the world. Put another way, “First, do no harm.”

    All the best.

    RGK

  10. RGK, your fair points mostly seem based on the view it is inherently bad for adults to do things which may become bad for society (or the adults themselves) if done too much and/or if done by kids. But do not nearly ALL “base” pleasures arguably fit into this category? Certainly alcohol use, tobacco use, gambling, sexual activity, football, NASCAR, sunbathing, scuba diving, and lots of other legal activities that occupy many Americans on many weekends fit the bill. And, though we might debate whether these activities are more or less part of our cultural tradition, I do not think that history defines what may or may not work in modern society.

    More broadly, unless and until I see evidence that pot addiction saps productivity as much or more than, say, iPhone games or March Madness, I want to resist the tendency of having governments decide what activities of seemingly minimal harm must be prohibited and subject to criminal punishment for the good of society.

    And speaking of unintended consequences, do you not see how the modern drug war has its roots in Nixon et al. eager to go after stoners and others “for the good of society.”. You may not worry about the Prohibitionist slippery slope, but our modern mass incarceration in the US suggest to me that a nation Lincoln said was conceived in liberty has already slipped pretty far down a freedom-fearing slope when wise conservatives like you make these kids of arguments in favor of big government criminal limits on free markets and free citizens.

  11. Doug, I am officially your fan.:-)

    I would submit that there are two intellectually consistent political philosophies: libertarianism and socialism. The difference between our modern liberals and conservatives is in what they want to control, with conservatives leaning toward the bedroom and liberals, the boardroom. Freedom is the ability to do something other people don’t like, and their counter-argument is invariably the same: “It’s for for the children.”

    That having been said, big government does have a valid place in a libertarian capitalist society, as the theoretical Adam Smith ideal of the free market hasn’t existed since Leland Stanford was in short pants. Sarah Palin can’t get up one morning and decide that she is tired of being a beauty queen and wants to be a lawyer, and hang out her shingle that very afternoon. Paradoxically, a well-regulated market comes closest to that ideal; the classic example is how the SEC regulates our financial markets and prosecutes insider trading.

    The drug war has been a quintessential example of the hazards of misregulation; even William F. Buckley got it a generation ago. https://www.youtube.com/watch?v=gTyucBinXnY While Drugs Limburger could always get his get his dittos (Oxycontin) prescribed and Congressmen get their hands casually slapped for buying coke, http://www.theguardian.com/world/2014/jan/27/florida-congressman-trey-radel-resign-cocaine-conviction, if you are a black man from the ‘hood, you can expect an extended stay in the often for-profit Greybar Hotel. And what that teaches us is even more corrosive to society than rampant drug abuse. As Chief Judge Edward “Naughty” Nottingham of the Distridt of Colorado intoned:

    The law in a republic such as this is in danger and cannot stand if a large portion or a significant portion of the citizens of that republic come to believe that it is not evenly enforced. That is what is meant by equal justice under the law. It is not that you get the same sentence as everyone else, of course. It is that you are treated equally.

    If it is perceived that there is one law for the rich and one law for everybody else, the law will ultimately fall into disrespect.

    Al Lewis, Nacchio: A Man For All Seasons, Denver Post, Jul. 27, 2007, available at http://blogs.denverpost.com/lewis/2007/07/27/nacchio-a-man-for-all-seasons/451/ (transcript of Judge Nottingham’s lecture on morality to former Qwest CEO Joseph Nacchio at sentencing),

    As the great Justice Brandeis quipped, “[i]f we desire respect for the law, we must first make the law respectable,” Louis Brandeis, as quoted in, A Treasury of Jewish Quotations 269 (Joseph L. Baron, ed. 1996) (citing an article in the Cleveland Plain-Dealer dated Oct. 15, 1912, as the original source). and a law that is a respecter of persons is no law at all.

    This, I would respectfully submit, is the ultimate legacy of the war on drugs.

  12. Please, Judge, watch out for that Fentanyl stuff. Unlike marijuana, it can be very dangerous if you get to like it too much.

  13. Anyone from the De Beers cartel of diamond companies reading this blog and care to add their two cents?

  14. So glad to hear your pneumothorax went away on it’s own! Wonderful! For the rest of your Blog, I thank you for your education in the Legal & Political World. I am a Humanitarian! Your Health & Well Being is All that Matters to Me:)

  15. Pingback: Legalization Of Marijuana Not Necessarily A Good Thing | That Mr. G Guy's Blog

  16. If I may make a philosophical diversion:

    I think there is a difference in viewpoint as to what the goal of laws in society should be between Doug and you which drives the divergent arguments you’re making. This also results, if I may be so bold, in a bit of talking past each other.

    Judge, your argument comes from a very consequentalist viewpoint. That is, you are looking at pot legalization and doing a simple weighing of pros and cons to society as you see them, and coming down on the “con” side. There are a number of factors going into that analysis, one of which as you mention in the comments is the precautionary principle, that without very good reason it’s better to not change things. Of course there can be a “pro” argument made within this framework, but the framework and the precautionary principle combined tend to tip the scales to “con.” For an analogy, this is the philosophy behind equitable relief, or old common law courts of equity (vs. courts of chancery), that the law should find the most just and best result possible, full stop.

    Doug’s argument is a much more rights-focused argument, and in its strongest form is saying that the pros and cons to society are only one factor of analysis, and probably not the most important one. In Doug’s argument then, even if society is made a bit worse off by legalizing pot, the fact of having it illegal violates fundamental rights of people to do as they choose, on threat of imprisonment. That is, the tool of “send people with guns to take you from your home and put you in prison” should only be used for acts which are severe violations of social norms or the rights of others, not things which are roughly on par with drinking alcohol. For an analogy, this is the philosophy behind the exclusionary rule: a man may walk free even though we know he is guilty, because his individual rights matter more than the net benefit to society of imprisoning him. The formal philosophy behind this is called “deontology” in modern academic circles if you want to go down that rabbit hole.

    Anyway, glad to hear you recovered from that incident, and wish you all the best.

    -Peter

  17. pdgb,

    Yes, of course, you are right. I have a bit of an addictive personality anyway. So, you’re caution is particularly important. Thanks.

    All the best.

    RGK

  18. Doug,

    First, you may be right. Perhaps I have watched Reefer Madness too many times.

    Second, and, more seriously, I see much more harm to mass marijuana consumption than you do. It comes in part from sentencing so many people to prison terms where marijuana consumption (and addiction to that drug) played a not insignificant part. Moreover, the negative impact on poor communities, and especially the black community, of normalizing marijuana consumption which has already occurred is proof positive to me that the Colorado policy is a disaster.

    Third, it is true that I fear the loss liberty less than I fear the disintegration of a healthy culture.

    Finally, and again, thanks for being a good sport. I especially appreciate that about you.

    All the best.

    RGK

  19. Peter H.,

    I am fascinated by your comment, and agree almost entirely with it. Long ago, I was very close to doing a Phd in traditional political thought (Plato to Hobbes) when I decided that law would be more fun. For what it is worth, I think Doug comes close to Locke and his idea of “natural rights.” I have long since rejected that approach as comforting but not realistic. On the contrary, I am much more likely to see the tiger in the forest stalking the least among us and thus see government as providing a civilizing and restraining role.

    As I know you know, we could discuss this in much greater depth. But, I think, that would be boring to many readers.

    All the best.

    RGK

  20. Pleasing to see this analysis, though my own affinity for liberty and rights to be free from oppressive goverment restrictions is based in a deeper kind of rule utilitarianism/consequentialism. At least at this moment in human history, those societies with the most respect for human freedom and individual rights seem to have the most health and wealth as a whole.

    Put more forcefully, I do not really understand the moral force of most rights-based claims, but I do notice that societies which are concerned with fostering human freedom always seem to do better for its people than those with other approaches.

    In addition, the older leaders every generation defines a healthy culture in its own (self serving) ways — slavery was thought healthy for blacks by our Framers; alcohol and gambling and pork and caffine have long been deemed unhealthy by some religions but not others; the Beatles were demonic to many 50 years ago, rap rotted brains 25 years ago, and now it may be violent video games. And so on. Perhaps my Jewish heritage makes me uniquely fear letting government moralists define who is healthy and who is not, but I am still waiting to see protests in the street in any nation over too much freedom.

    Finally, I urge you to consider whether prohibition of pot explains the harm you see much more than pot itself. Note how the end of alcohol prohibition is what changed Capones into Coors. As I finish some white wine with my wife, I continue to wonder whether the poor communities you note would be much better off if we had legalized pot in the 1970s as was then recommended by a leading govt study.

  21. Thanks for the kind words. I won’t belabor the point except to say that Berman points out my wrongness about his views below (he is a rule consequentialist, not a deontologist).

  22. Ah, sorry for mis-pegging you. My only defense is I was working from a small sample size, and got the je ne sais quoi of deontology.

    Regarding your reference to alcohol prohibition, I would like to make a book recommendation: Last Call by Daniel Okrent. It’s a really excellent history of the social and political movement that led to prohibition, and the counter-movement for its repeal.

  23. Doug,

    Consider whether the nations you laud have achieved and maintained the common good not because they emphasize rights-based reasoning above all else but because their governments have a tradition of rock solid stability. That is, they are very slow to change the fundamentals of what works.

    Additionally, I have feared the “state of nature” for a very long time. I doubt that my age has much to do with my fear of rights-based reasoning as a justification for changing a status quo that provides a reasonably safe environment for most citizens.

    Lastly, the marijuana legalization debate is not an all or nothing proposition. Rationalizing penalties makes more sense to me than the extreme of legalizing consumption. For example, since the early 1970s, Nebraska has said if you have an ounce or less of marijuana on your person you violate the law, but it is not a crime. It is an infraction for which the only penalty is a fine.

    All the best.

    RGK

  24. I apologize if that came across as disrespectful – just an unintended consequence of my attempt at black humor. I don’t buy your Helen Lovejoyesque argument though – since it does not account for other countries which have suffered no significant loss of quality of life or health due to legalization (Holland, Portugal, Brazil). Also, aren’t you troubled by the status quo? – so many people in power confess to have used/use it on one hand and on the hand these same people make/enforce laws that put others in prison for the same thing.

  25. TF,

    Tom, I knew you meant no disrespect, and, in this venue, it is perfectly OK to refer to my musings as vapid. They frequently are just that.

    I am troubled by the status quo with respect to the length of federal prison sentences in drug cases. There is much room for agreement on that subject even if we disagree on the legalization question.

    All the best.

    RGK

  26. Pingback: A Federal Judge’s Cancer Treatment Got Him Thinking About Marijuana. | Gazelle

  27. I want to comment on the idea you brought up that marijuana poses a danger to children. I would like to posit that this substance poses no more danger to children than alcohol currently does. I would also like to bring up the idea that it is really the responsibility of every parent to educate their children about the dangers present in the world. I know that we live in a world where parents regularly shirk that responsibility, but I am of the opinion that my freedoms shouldn’t be limited just because others are shirking their social duties. Thank you for your time and thought.

  28. I know I”m a little late to the part, but…

    “Obama and his Justice Department fear that legit corporations will see the profit potential and gradually move into the market in a big way. (When that happens, Birkenstocks will be out!) If that fear is real, and I believe it is, there is simply no reason to think that the cartels will not find ways to invest in this legal business as well.Indeed, the members of the cartels are certainly the most experienced “businessmen” in the marijuana trade. Just as the Mafia found ways to invest in and profitably use legitimate business (gambling, trash hauling, construction), there is no reason to think that the cartels are any less adept at doing the same or similar things with the legal pot business in Colorado and elsewhere”

    Getting corporations to move into the market is to be desired, not feared. Tobacco companies make a fairly similar product without the violence and in compliance with the law. Their sales and advertising are closely regulated, which is easy because they are big, profit first corporations. They settle their contractual disputes through the courts and mediation, because they are big, profit first corporations.

    Gambling. Trash hauling. Construction. Not mentioned, but I’ll add import/export and union organization. But not brewing and distilling. Notice any common vein running through there? Once prohibition ended, organized crime left the distilling and brewing industries. They moved into government contract servicing where their skills at corruption and regulatory capture returned the best profits. (I’m arguing that Las Vegas’ history is so path dependent that its not useful for generalizing).

    I may not have much love for the wing-tip and pin-strip crowd, but I’d bet on them, backed up by American monopoly on force and a population that would love to get back to the whole ‘respecting the police’ norm, over the cartel.

    And it goes without saying, best wishes for your health.

  29. A Leap at the Wheel,

    Very interesting perspective. You may be right. Indeed, last night, CNN showed a former Microsoft executive’s marijuana start-up growing operation that is explicitly predicated on the notion of scaling up production of very high quality weed. To the degree that such an operation is considered to be a “good corporate citizen,” certainly such an operation could give the cartels a run for their money.

    All the best.

    RGK

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