The opponents of Question 4, which would legalize recreational marijuana in Massachusetts, have inadvertently provided the best reason to vote for the measure. Those opponents include virtually every elected official and law enforcement officer in the state, from Governor Charlie Baker and Attorney General Maura Healey on down, and their lockstep opposition (with the lonely exception of Senate President Stanley Rosenberg) sends a clear message that Beacon Hill will not legalize marijuana on its own, no matter how little popular support prohibition may have.
And that’s too bad. If the political leaders of the Commonwealth showed even the slightest interest in legalization, it would probably make sense to wait for lawmakers to produce a better-crafted proposal than the current ballot measure. But Question 4 is all we’ve got. The Globe endorses the yes campaign, despite the proposal’s many flaws, because the harm stemming from continued inaction on marijuana would be even greater.
Massachusetts decriminalized marijuana possession in 2008, but that left the drug in a kind of legal netherworld — not quite legal, not quite illegal. Users couldn’t go to jail for possessing less than an ounce of pot, but it remains illegal to sell. Decriminalization has been an untenable policy, keeping murderous drug gangs in business.
Question 4 would create a legal marketplace and, its authors say, end the black market. Legalization would also allow the state to tax marijuana sales, creating a new revenue stream for the state and for municipalities. And it would create business opportunities for marijuana entrepreneurs, who could apply for licenses to cultivate and sell marijuana from a new Massachusetts Cannabis Control Commission.
Opponents of the referendum stumbled out of the gate with scaremongering about the dangers of the drug. Marijuana isn’t harmless, but not all risky behaviors must be illegal. An ad from opponents raises the specter of pot shops — but taking drug sales off the streets is a feature, not a bug, of legalization. Nor would the law lead to pot shops on every corner, since the referendum allows municipalities to restrict their number. As for the risk from drugged driving, that already is, and will continue to be, a real problem. But the risk posed by impaired drivers is a reason to enforce traffic laws, not to ban pot (or, for that matter, alcohol).
The more compelling criticism of Question 4 is that it executes a good idea in a bad way, and will create a mess that the Legislature will have to spend time cleaning up. The referendum language was written by marijuana-industry advocates, and it shows: The referendum would create a regulatory system that seems tailor-made to create a new class of entrenched special interests that will fight against further regulation.
If the question passes, the Legislature should act quickly to raise the tax — before the new industry can start hiring lobbyists. The referendum calls for only a 3.75 percent tax (in addition to the state sales tax), compared with the 37 percent tax rate Washington state enacted when it legalized marijuana.
The regulatory body the referendum question sets up would fall entirely under the control of the state treasurer, much like the Alcoholic Beverages Control Commission. That’s a recipe for regulatory capture — the tendency of regulatory bodies to fall into revolving-door relationships with the industry they’re supposed to regulate. To build more checks and balances into the system, the attorney general and governor should also get appointments to the board.
Additionally, the provisions of the referendum that give preferable status to medical-marijuana license-holders smack of anticompetitive restrictions, and should be removed. Indeed, passage of the legal marijuana referendum would call into question the need for a separate licensing system for medical marijuana, which would become redundant if Question 4 passes. The Legislature might want simply to abolish a system that will no longer serve a purpose when any adult can buy marijuana with or without a prescription.
The restriction on personal possession should also go, as it replicates the current half-legal, half-illegal status quo. There is no limit on how much beer the state’s residents can keep in their fridge, or transport in public. The lesson from decriminalization is that half-illegal doesn’t work; if residents vote to make marijuana legal, it should not be subject to restrictions that would be unique for any legal product in Massachusetts.
Under different circumstances, all of those defects would be reasons to wait for the Legislature. Some opponents of legalization, including state Senator Jason Lewis, who has emerged as a leader in the No on 4 campaign, have implied that the Legislature would take up legalization soon, if only voters wouldn’t rush the process by passing the ballot question in November.
Lewis himself may sincerely believe that, but all the available evidence suggests it would be foolish for voters to hold their breath waiting. Baker has been against legalization, and so have influential political leaders like Mayor Marty Walsh.
A related complaint from lawmakers is that if Question 4 passes, they’ll have to clear their busy schedules to fix the legislation. Respectfully, today’s Legislature is by and large the same group of lawmakers who somehow found the time to write legislation for the horse-racing industry. They can survive the inconvenience that their constituents may impose on their calendars.
Using marijuana isn’t completely safe, and it isn’t completely harmless to others when users drive. But a social consensus is clearly emerging that pot’s real dangers just aren’t great enough to merit outlawing it anymore. While the authors of Question 4 could have written a much better law, they at least got the big picture right. Legal marijuana is coming. Let’s get on with it.