Panel Paper: The Federal Dilemma: Fitting State Marijuana Legalization Into a Prohibition Regime

Saturday, November 9, 2013 : 8:20 AM
Salon III B (Ritz Carlton)

*Names in bold indicate Presenter

Mark Kleiman, University of California, Los Angeles

State-level legislation to legalize the production and sale of cannabis conflicts with federal laws and international conventions. Bill drafters officials need to take federal reactions into account in designing their new systems, and state officials must reckon with federal enforcement in administering such systems. That constrains design choices; the most advantageous system considered in itself might not be most advantageous in the face of some given federal reaction, and different systems (including different implementation actions) might draw different federal responses. Perversely, the more tightly regulated a state system is, the more vulnerable it is likely to be to federal suppression efforts. In crafting responses to current state initiatives, federal officials and lawmakers ought to consider the incentive effects on designers of new state initiatives. 

A simple sequential-play games model shows that the outcomes of each player optimizing independently will be inferior, from the perspective of the two players (treating the federal government and the state government as unitary rational actors) to the result available by negotiation if binding commitment is possible.  The "cooperative enforcement agreement" provisions of the Controlled Substances Act provide a possible framework for accommodation; a more radical approach, requiring new legislation, would be the creation "cannabis policy waivers."

Stepping back from the unitary-rational-actor approach and giving enforcement agencies their own moves and objectives - perhaps a more realistic approach - preserves the result that negotiation can outperform sequential play for all players but casts doubt on the feasibility of reaching a negotiated agreement.