30 March 2019 Posted By : James P. Kennedy

Viewpoints: Not so fast on marijuana

In 1849, the California Gold Rush produced a rapid influx of fortune seekers willing to throw caution to the wind as they hastily set out to stake their claim to a lifetime of wealth. Nearly 170 years later, we are witnessing a similar phenomenon – this time a Green Rush – as scores of private individuals and public officials push ahead headlong with efforts to legalize the recreational use of marijuana.

Despite this growing perception that the decriminalization of marijuana is a fait accompli, what has become profoundly clear to me during my tenure as the United States Attorney and the nearly three decades I have spent as a federal prosecutor is how scarce the evidence is regarding marijuana’s impacts on individual health and societal wellness.

As a prosecutor, I look for evidence and facts and I ask questions.

The dearth of reliable evidence and facts regarding the actual effects that marijuana has on us, individually and collectively, is highly concerning to me and makes me question whether proponents of the legalization of recreational marijuana have sufficient evidence to carry their burden of making a responsible and informed decision.

On Jan. 12, 2017, the National Academy of Science released a 468-page study titled, “The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research.” One thing that the study makes clear is that the health effects of marijuana remain, largely, a mystery.

As far as marijuana’s potential health benefits, the study determined that there was “substantial evidence” of the efficacy of cannabis and cannabinoids in only a few areas: treating chronic pain in adults, helping reduce chemotherapy-induced nausea and vomiting, and improving patient-reported multiple sclerosis spasticity symptoms. Aside from the fact that these are all medical and therapeutic uses, the study also noted that “there are no good-quality randomized trials investigating” these options and that “very little is known about the efficacy, dose, routes of administration, or side effects of commonly used and commercially available cannabis products in the United States.” Such limited evidence hardly compels the conclusion that sweeping legislation legalizing the recreational use of marijuana is warranted. Instead, it suggests that to the extent that “substantial evidence” of marijuana’s benefits exists, those benefits lie exclusively in its medical uses, though further studies regarding medical marijuana’s efficacy, dosing, methods of administration, and side effects are required.

Evidence of harm

This more limited and cautious approach to the legalization of marijuana finds further support when one considers the areas for which there is “substantial evidence” of marijuana’s health harms. Specifically, the study found a statistical association between cannabis smoking and the following: worse respiratory symptoms and more frequent chronic bronchitis episodes; increased risk of motor vehicle crashes; lower birth weight in children; and the development of schizophrenia or other psychoses, with the highest risk among the most frequent users. How can it be sound public policy to legalize recreational marijuana when the evidence suggests it will lead to more people suffering respiratory issues, dying in car accidents, having less healthy babies, and developing certain forms of mental illness?

Oh, by the way, on that last harm, for which there is substantial evidence, while there is conflicting evidence whether those who suffer mental illness are more likely to commit violent crime, there is strong evidence that those who suffer from mental illness are far more likely to be the victims of violent crime. Again, how can it be sound public policy to legalize recreational marijuana when the evidence suggests not only that it may lead more people to commit violent crime, it will lead to more people being victimized by violent crime?

Beyond the foregoing, there is no other substantial evidence of marijuana’s health impacts. As to every other potential impact that marijuana has on our health as humans, the study found moderate, limited, insufficient or no evidence. Does it impair academic achievement and educational outcomes? Limited evidence says yes. Does it increase rates of unemployment and/or low income? Limited evidence says yes. Does it impair social functioning or engagement in developmentally appropriate social roles? Again, limited evidence says yes. How can it be sound public policy to legalize recreational marijuana when it very well may make us dumber, poorer, and less social, and when, in the end, we really do not know what it is going to do to people?

Finally, the study found “moderate evidence” of a statistical association between cannabis use and the development of substance dependence and/or substance abuse disorder for substances including other illicit drugs. In 2017, there were 72,000 fatal drug overdoses in America. Even if the “moderate evidence” establishing recreational marijuana’s role as a gateway drug is ignored, how can it be sound public policy to push for the legalization of recreational marijuana, when the very most that can be said is that we have no idea whether legalization will lead to an increase or a decrease in the number of overdose deaths?

Thriving black market

As with health costs and benefits, when it comes to social costs and benefits, there is again a dearth of solid evidence. Further, the overwhelming evidence from states, such as Oregon and Colorado, which have legalized recreational marijuana, demonstrates that legalization does not eliminate the illicit black market for marijuana. To the contrary, with legalization comes overproduction. My colleague Billy Williams, the United States Attorney for the District in Oregon and chairman of the Attorney General’s Advisory Committee’s Marijuana Working Group, estimates that Oregon’s annual marijuana production capacity is up to 10 times its annual marijuana consumption demand. That overproduction of marijuana leads to a glut of marijuana on the black-market, where illicit dealers – free from state regulation, taxes, cultivation, and supply chain logistics inherent in the legal manufacture of marijuana – are able to sell marijuana much more cheaply that those who are regulated. Demand for their illicit marijuana persists because most users are not inclined to pay premium prices just to avoid committing a very low-level transgression that police are increasingly being asked to ignore. As with all drug dealing, with increased competition between illicit dealers comes increased violence.

While there is, as I noted previously, no solid evidence to show whether marijuana legalization increases violent crime rates, one unassailable fact is that none of the states that have legalized marijuana have experienced a net reduction in violent crime. Moreover, during my tenure as a federal prosecutor here in Western New York, we have prosecuted numerous gang members for murders and acts of violence tied directly to the marijuana trade and turf wars between gangs competing for their market share of the illicit marijuana business. How can it be sound public policy to legalize recreational marijuana when we know not only that it has not led to a reduction in violent crime in any jurisdiction in which it has been tried but also that it will not end the illegal distribution of marijuana by organizations which have a demonstrated history of violence in our community?

Marijuana and money

In the end, I see this Green Rush as pioneered by two factions in pursuit of two very different types of green. For one, their motive is marijuana. For the other, their motive is money. As U.S. Attorney, I can offer overwhelming evidence to demonstrate that people motivated exclusively by either of those things – drugs or money – invariably fail to act in anyone’s best interest but their own, and as such, their actions are, by definition, antithetical to the public interest.

Finally, I would be remiss in my role as U.S. Attorney if I did not remind proponents of the Green Rush in New York of two important and unassailable provisions of current federal law. First, it remains a federal crime to possess, distribute or manufacture marijuana. Second, any property used to facilitate the manufacture or distribution of marijuana remains subject to federal seizure or forfeiture, as does any property that directly or indirectly constitutes proceeds derived from the manufacture or sale of marijuana.

With both the dearth of evidence and the current state of federal law providing appropriate cautionary markers along the way, I think we owe it to ourselves and to future generations to slow down and to proceed with great caution. Otherwise, we may well find ourselves at a place at which the only question left to ask is – how in the world did we end up here?”

James P. Kennedy is U.S. attorney for the Western District of New York.

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