The case for legal pot use

A Harvard University professor of economics, Jeffrey Miron, has crunched the numbers, and he’s determined that legalizing marijuana would save $7.7 billion annually in money spent on enforcing dope laws. That breaks down to $5.3 billion in savings for state and local governments, and $2.4 billion in cost reductions at the federal level. This is noteworthy because the FBI reported the other day that more Americans were arrested for pot last year than at any time in U.S. history. And of the more than 770,000 people cited for dope-related offenses, nearly 90 percent were charged only with possession. Those are hundreds of thousands of criminal cases that didn’t have to be taking up the time and resources of our cops and courts. Meanwhile, Harvard’s Miron estimates that tax revenue for legalized pot would run about $2.4 billion annually if it were taxed like all other goods. Yet if marijuana were taxed at rates comparable to the aggressive levies placed on alcohol and tobacco — and it should be — Miron determined that it would yield $6.2 billion in annual revenue. "It’s kind of small potatoes compared to the ($319 billion) federal budget deficit," he told me. "But it’s not nothing." For the record, Miron says he isn’t a pot smoker. His interest in the subject comes instead from a desire to address what he sees as a failed public policy. "As an economist, I think about policies that are good for people and for society overall," Miron said. "This strikes me as very bad policy." And he isn’t alone in this conclusion. Prompted by Miron’s work, more than 500 economists have signed an open letter to President Bush and other public officials calling for "an open and honest debate about marijuana prohibition." The letter adds: "We believe such a debate will favor a regime in which marijuana is legal but taxed and regulated like other goods." Signatories include a trio of Nobel Prize winners — Milton Friedman of Stanford’s Hoover Institution, George Akerlof of UC Berkeley and Vernon Smith of George Mason University. "It’s absolutely disgraceful to think of picking up a 22-year-old for smoking pot," 93-year-old Friedman has been quoted by Forbes as saying. "More disgraceful is the denial of marijuana for medical purposes." In his study, "The Budgetary Implications of Marijuana Prohibition," Miron places the illicit U.S. market for marijuana at about $10.5 billion in annual sales. (Figures close to $11 billion seem to be the consensus among people who guess at such things.) Decriminalization would result in lower production costs as dope farming and processing go mainstream. It would also lead to what Miron believes would be only a modest increase in demand because "the people who care about it are already consuming it." Factoring in these two elements, he estimates that marijuana sales in a legalized marketplace would total about $8 billion a year (as opposed to $110 billion in annual U.S. sales of alcoholic beverages). If dope were taxed as heavily as alcohol and cigarettes, Miron calculates that annual sales would be worth almost $12 billion a year. Of this total, 80 percent would represent tax revenue. California would do especially well if marijuana were legalized. As it stands, pot is already the state’s largest cash crop, with annual sales estimated to be about $4 billion. Miron figures that decriminalizing marijuana would result in about $1 billion in law-enforcement-related savings for California, plus about $100 million in additional tax revenue. "That would certainly put a significant dent in a budget deficit of $2 billion or $3 billion," he said.

Where is common sense? Certainly not in the votes of the politicians.

Alice writes:

I’ll agree to support states’ rights for Oregon, if those judges can reason far enough to then apply that same standard to states’ anti-abortion laws. Surely if one state can decide to kill its elderly, another state can decide not to kill its babies. And maybe if this were permitted, it would promote a more civil society. People who like euthanasia can move to Oregon, and people who don’t like abortion can move to Kansas.

She makes a great point! I understand why abortion should be legalized, although I personally dislike abortions. Allowing states to make decisions on various decisions makes great sense to me. Example would include same-sex marriage (or civil unions), medical marijuana, euthanasia, abortion. We should let states make these decisions individually. If this encourages some people to move, I have no problem. After all, Nevada having legalized gambling and brothels has influenced population in that state.

The New New Federalism

The Oregon case will be an early test of whether the Roberts Court will continue and extend William Rehnquist’s legacy of restoring meaning and force to the notion that our system of government is one of limited and enumerated powers. For at bottom, the Oregon case turns on whether the Attorney General can, by an act of administrative fiat, nullify the expressed will of a majority of voters of one of the 50 United States.

The case dates from 2001, when then-Attorney General John Ashcroft asserted the authority under the Controlled Substances Act to bar doctors from prescribing the lethal dose of barbiturates that, under the Oregon law, terminally-ill patients are allowed to use to end their own lives.

It’s clear the Controlled Substances Act gives the federal government the power to regulate, bar or restrict drug availability, up to a point. The question in Gonzales is whether the AG can use that power to accomplish a quite different public-policy goal–the neutering of Oregon’s assisted-suicide law–simply by asserting that taking drugs to end one’s life is not a “legitimate medical purpose” for a barbiturate. That law, we should add, was twice endorsed by Oregon voters in statewide referendums.

In other words, this is a states’ rights case, but with an ironic twist. States’ rights has generally been considered a “conservative” issue. But in this case, as in the Raich medical marijuana case the Court decided in June, the rights in question are a state’s desire to pursue what are generally regarded as liberal social policies.

Or as I have repeatedly blogged, politicians have no firm principles. They will claim States’ rights when it suits their agenda. They will support Federal power when it supports their agenda.

The Wall Street Journal has this issue right – it concerns much more than a narrow question. It represents a fundamental principle. I hope the Supreme Court is principled and not like Groucho (see quotes on the left).

A reader asked why I had moral problems with the Oregon law. I have written about the difference between active and passive euthanasia in the past – and provide these two links:

I the Oregon assisted suicide law legal

More on passive euthanasia

Those two posts make my personal position clear.

Supreme Court Hears Arguments on Oregon’s Assisted-Suicide Law

As I have written previously I am morally against physician assisted suicide. In my mind this action crosses an ethical line which troubles me.

However, I also consider myself a libertarian and a supporter of States’ Rights. While I disagree personally with the Oregon law, I must support their right to develop statute on this issue.

This decision would make an outstanding test question for law students. The issues are very complex. I personally must separate my personal philosophy about physician assisted suicide (strongly against) from the implications of the Attorney General being able to prosecute physicians who choose to help patients in need.

While I believe that physician assisted suicide leads to a slippery slope, so does a decision in favor of the Federal Government being able to prosecute physicians.

So I hope the Supreme Court will deny the Attorney General’s office their motion. And I hope other states refrain from passing such laws.

Occasionally this blog provides me intellectual entertainment. Two weeks ago I blogged about the Vioxx settlement. An interesting perspective on the Vioxx damage award This rant has sparked one of the most spirited, entertaining and thoughtful debates ever seen on this blog.

Curious JD stands on one side. He consistently attacks physicians. He blames us for all evils of drug companies and the insurance industry. I find his arguments askew of the main discussion – a clever form of sophistry (but what did you really expect).

While I have read all his words, they run into each other and I am at a bit of a loss to understand if he really believes this pablum, or he just likes to argue. The issue that he fails to ever address (in my opinion) is how when best delivers justice to patients, physicians and the pharmaceutical industry. His training elevates the jury trial to an exalted state. Yet all lawyers know that juries rarely decide cases merely by understanding the relevant issues. In fact, most lawyers tend towards obfuscation when presenting complex cases. Rather than develop a logical argument, they would rather confuse everyone, and have the case decided on other issues, like how they dress, their eloquence (or in some parts of the country being “down home, aw shucks”.

What physicians want (and patients deserve) is a system which fairly judges the issues. I have written repeatedly about special health courts. Such courts would decrease lawyer fees (CuriousJD will despise this part) on both sides. Patients would likely more often receive renumeration – making malpractice less of a semi-random lottery, or more of a justice system.

Likewise, the Vioxx cases should receive the same analyses. We know from research what complications Vioxx might cause. Vioxx does not cause arrhythmias, yet a jury was convinced of the evil of Big Pharma, and then went crazy in developing a judgement.

I doubt that the jury system was developed to make sociopolitical statements, yet clever lawyers understand the dynamics of juries and can use that understanding to achieve victory for their clients. But, I do not believe that the average jurist has the sophistication to really understand the complexities discussed in such cases.

Lawyers will accuse me of arrogance or being an elitist. I counter by saying that I just would like to see justice. When the current system fails to provide justice, then I argue we must look for an alternative system.

As we say in the South – “if it ain’t broke, don’t fix it” – but it is broke and we must fix it.

In the other corner is one of my medical students – WL. I am obviously biased in his favor – but his arguments are thoughtful and reasoned. As a former lawyer he understands the sophistry, obfuscation and hyperbole. He dissects CuriousJD with precision.

But then, you should read the debates yourself, and come to your own conclusions.

Vioxx-type danger and legal frivolity

Last week, a Texas jury found Merck was liable for the death of a man, Robert Ernst, who took Vioxx, the company’s painkiller. While the company will appeal an award of over $250 million to the Ernst widow, claiming that the jury did not find that Vioxx caused his death, the jury punished Merck for failing to change its marketing practice after its own study identified a small group of patients that had more heart problems after taking Vioxx. It’s message was, in the word of the words of one juror: “Stop doing the minimum to put your drugs on the market.”

Vioxx likely did not cause Mr. Ernst’s death. But the jury made it clear that causation is not the issue. Rather it believed that Merck was irresponsible for not doing a better job in making people aware of the real risks and benefits of Vioxx. While Merck may ultimately win its appeal on the merits, the fact is, if it has determined who would benefit from Vioxx and who is at risk, Merck could have avoided its current problems.

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Better science, not big damage awards, are the way to safer and more effective drugs. Litigation will discourage companies from pursuing research on drugs for incurable illnesses that, even with genetic testing, will have serious side effects. The only way out of this mess is for companies to personalize the development and prescribing of drugs. Merck’s learned the lesson of not targeting treatments the hard way. Let’s hope other companies are more proactive. Personalized medicine will make Vioxx-type lawsuits a rare effect of our legal system instead of the disease it is today.

Goldberg makes some interesting points. I agree that the damage award is nonsensical – see Jane Galt’s excellent analysis – Who decides–and how? What I like about Goldberg’s analysis is that he goes beyond the obvious and suggests a path for better evaluation. While I am not convinced that our science is currently sophisticated enough to meet his objectives, we can certainly start to approximate his objectives.

Until we have a better funded FDA with a broader mandate, we will continue to see such stories. During my 30 years since graduation numerous drugs have had post-release difficulties. That will happen, because you cannot learn everything about a drug prior to release. We must give higher precedence to science than marketing. I fear that the pharmaceutical companies have not understood that concept. This judgement (even when lowered) should get their attention. Hopefully the companies will develop some risk aversion. Our patients deserve that.

If you have a JAMA subscription here is the link to an excellent commentary – Medical Marijuana, American Federalism, and the Supreme Court

The analysis is more technical (legally) than I really understand, but these quotes give the gist of the argument.

In Gonzalez v Raich, the US Supreme Court held that federal law enforcement authorities could criminally prosecute patients for possessing marijuana prescribed by a physician in accordance with state law.1 The Court did not overturn state medical marijuana laws but did open the door to criminal prosecution under federal drug statutes. The Court also did not foreclose future challenges to federal enforcement on other constitutional grounds (eg, an unwarranted invasion of patient-physician privacy).

Explaining the significance of Raich requires examination of 2 issues. The first concerns American federalism and raises an important constitutional principle about the appropriate scope of federal public health powers. The second issue concerns the use of marijuana as a medical treatment and raises intriguing questions about the practice of medicine and the patient-physician relationship. In Raich, the Supreme Court pointedly questioned the wisdom of prosecuting patients: “The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because . . . marijuana does have valid therapeutic purposes. The question before us, however, is not whether [the policy] is wise, [but] whether Congress has the power to regulate . . . medicinal substances . . . produced and consumed locally.“

So, the Supreme Court judged this case narrowly and left room for further challenges.

Sound regulation of medical marijuana requires government oversight based on public health, a rigorous research agenda, a private physician-patient relationship, and respect for patients who seek relief from suffering. A first step would be to reclassify marijuana as a schedule II drug because, like the schedule II substances cocaine and morphine, it fits well within the statutory definition of having “a high potential for abuse” but “a currently accepted medical use with severe restrictions.”23 This would allow for medical prescriptions subject to strict regulation without unduly interfering with federal drug policy. Allowing restricted access to marijuana for seriously ill patients would not necessarily send a “soft” or “wrong” message about drug abuse. The public can make a distinction between a drug of abuse and a drug prescribed by a physician for a compassionate purpose. The data suggest that marijuana may offer respite for some patients—a position supported by patient experiences and physician opinions. The “drug war” metaphor does not justify an ideology that removes hope from patients when they are most vulnerable and in need.

Well said!

Boys and girls this is not California, or Oregon, or even Nevada. This is the Deep South. Prescription for pot?

My colleague, Amos Bailey, gives some excellent summaries here:

Besides acting as an analgesic for chronic-pain patients, marijuana is used as an appetite stimulant and anti-nausea drug.

Doctors believe it works in the part of the brain that controls hunger and nausea. But they don’t understand the precise biochemistry, said Dr. Amos Bailey, director of Palliative Medicine at the Birmingham VA Medical Center. Bailey also started the palliative care unit at Cooper Green Hospital, where terminal cancer patients receive hospice care.

Legal drugs do not work on everyone. Doctors may try three or four medicines on a cancer patient, and that patient may still be wracked with nausea and may still lose weight, he said.

“Having something such as marijuana that’s part of the class of drugs you can use means you have possibilities for people who do not respond to conventional treatment,” Bailey said.

Bailey and his staff occasionally prescribe Marinol, a drug that is legal. It contains a synthetic from of THC, the major component of marijuana. But there are drawbacks to Marinol.

It costs from $400 to $800 a month, more than triple that of common cholesterol medications or painkillers. And because Marinol comes in pills, patients cannot control the dosage as well as they can with smoked marijuana. Also, marijuana, like all herbal remedies, has other active components not replicated in the synthetic forms.

“Quite frankly, this is something that patients may have already taken into their own hands,” he said. “And it makes sense to me when patients tell me the Marinol helped some, but the marijuana helped more,” Bailey said.

He never recommends marijuana, instead he reminds patients that marijuana is illegal and they could get into trouble.

But in the delicate dance between law-abiding physicians and desperately sick patients, it is understood that some patients use marijuana on their own.

It can be an excellent treatment, especially for Vietnam-era veterans who are comfortable using marijuana. “If it were legal, it would make it a lot easier to have these discussions, and for selected patients, I think it would be helpful,” Bailey said. “I don’t think we should make people criminals if we can avoid it, particularly very sick people.”

So apparently the Alabama legislature will examine this issue:

What Campbell says helps her most is marijuana. For a tee-totaling North Alabama Baptist, it’s been a lot for her to reckon with.

Yet she has decided to go public with her condition and her clandestine self-medication in hopes that marijuana will become legal for specific medical purposes if enough patients and doctors speak out. A bill introduced this legislative session would allow doctors to prescribe marijuana to patients suffering with fibromyalgia and other conditions such as glaucoma, HIV and cancer. The drug would remain illegal for everyone else.

Some physicians support it, saying marijuana is safer and more effective on certain patients than conventional drugs. They say legal painkillers such as Lortab, Xanax and Oxycotin are stronger and more addictive. Other doctors say the risk of sending the wrong message to young people outweighs any benefit of marijuana.

We should make this decision based on data, not belief. But then, we are not allowed to do the right studies to learn the risks and benefits.