Pot Legalization Is a ‘Big Mistake’ Only If You Ignore the Value of Freedom and the Injustice of Prohibition

New York Times columnist Ross Douthat thinks “legalizing marijuana is a big mistake.” His argument, which draws heavily on a longer Substack essay by the Manhattan Institute’s Charles Fain Lehman, is unabashedly consequentialist, purporting to weigh the collective benefits of repealing prohibition against the costs. It therefore will not persuade anyone who believes, as a matter of principle, that people should be free to decide for themselves what goes into their bodies.

Douthat recognizes that his case against legalization “will not convince readers who come in with stringently libertarian presuppositions.” Lehman, a self-described “teenage libertarian” who has thought better of that position now that he is in his 20s, likewise makes no attempt to argue that the government is morally justified in arresting and punishing people for peaceful conduct that violates no one’s rights. They nevertheless make some valid points about the challenges of legalization while demonstrating the pitfalls of a utilitarian analysis that ignores the value of individual freedom and the injustice of restricting it to protect people from themselves.

Douthat and Lehman are right that legalization advocates, who at this point include roughly two-thirds of American adults, sometimes exaggerate its impact on criminal justice. All drug offenders combined “account for just 16.7 percent” of people in state and federal prisons, Lehman notes, and perhaps one-tenth of those drug war prisoners (based on an estimate by Fordham law professor John Pfaff) were convicted of marijuana offenses. People arrested for violating pot prohibition usually are not charged with production or distribution and typically do not spend much, if any, time behind bars.

Still, those arrests are not without consequences. In addition to the indignity, embarrassment, inconvenience, legal costs, and penalties they impose, the long-term consequences of a misdemeanor record include barriers to employment, housing, and education. Those burdens are bigger and more extensive than Douthat and Lehman are willing to acknowledge.

Since the 1970s, police in the United States have made hundreds of thousands of marijuana arrests every year, the vast majority for simple possession. The number of arrests peaked at nearly 873,000 in 2007 and had fallen to about 350,000 by 2020. The cumulative total since the early 1990s exceeds 20 million.

That is not a small problem, although Douthat and Lehman glide over its significance. Yes, Lehman concedes, “arrests for marijuana-related offenses—possession and sales—plummet” after legalization. But based on a “rough and dirty” analysis, he finds that “marijuana legalization has no statistically significant effect on total arrests.”

Is that the relevant question? If police stop arresting people for conduct that never should have been treated as a crime, that seems like an unalloyed good, regardless of what happens with total arrests.

Lehman thinks the results of his analysis make sense. “Marijuana possession (and the smell of pot) is a pretext for cops to stop and search people they think may have committed other crimes, and marijuana possession similarly [is] a pretext to arrest someone,” he writes. “If marijuana arrests are mostly about pretext, then it would make sense that cops simply substitute to other kinds of arrest in their absence, netting no real change in the arrest rate.”

Again, unless you trust the police enough to think they are always protecting public safety when they search or arrest people based on “a pretext,” eliminating a common excuse for hassling individuals whom cops view as suspicious looks like an improvement. Lehman seems to be suggesting that most people arrested for pot possession are predatory criminals, so it’s a good thing that police have a pretext to bust them. But when millions of people are charged with nothing but marijuana possession, that assumption seems highly dubious.

Douthat and Lehman’s main concern about legalization is that it encourages heavy use. The result, Douthat says, is “a form of personal degradation, of lost attention and performance and motivation, that isn’t mortally dangerous” but “can damage or derail an awful lot of human lives.” Citing the 202