Category: reason

March 10 is Tibetan Uprising Day, commemorating the heroic Tibetan resistance against Chinese Communist imperialism. Over the next several days, I will tell the story of the Tibetans’ fight against an evil empire, leading to the Dalai Lama’s escape on March 20, 1959 and the founding of the Tibetan government in exile. Today’s post describes the political and military history of Tibet in the first decades of the twentieth century, before the invasion of Mao Zedong’s army in 1949.

These posts are excerpted from my coauthored law school textbook and treatise Firearms Law and the Second Amendment: Regulation, Rights, and Policy (3d ed. 2021, Aspen Publishers). Eight of the books’ 23 chapters are available for free on the worldwide web, including Chapter 19, Comparative Law, where the Tibet materials appear at pages 1885-1916. The Tibet sections are part of a larger section on the most murderous regime in history, the 1949-76 dictatorship of Mao Zedong. In this post, I provide citations for direct quotes. Other citations are available in the online textbook chapter.

Although history rarely repeats itself precisely, the history of the Tibetan resistance does provide some useful lessons about factors that impede or hinder armed resistance to tyranny.

During the 1950s, the greatest armed resistance to Mao’s rule was in Tibet. “The Tibetan Revolt was a major international embarrassment for the Chinese and for Mao; it must be considered one of the factors in Mao’s eclipse and in the retrenchment polices of the early 1960s.” Warren W. Smith, “The Nationalities Policy of the Chinese Communist Party and the Socialist Transformation of Tibet,” in Resistance and Reform in Tibet 53, 67-68 (Robert Barnett & Shirin Akiner eds. 1994).

In other words, the Tibetan resistance helped to force Mao to end his Great Leap Forward, a policy that had forced the Chinese peasantry into communal slave labor, and caused the worst famine in human history, killing tens of millions. By indirectly helping to terminate the so-called Great Leap Forward, the Tibetan resistance saved millions of Chinese lives.

Tibet’s geography and autonomy

Earlier sections of Chapter 19 of the Firearms Law textbook present case studies of Armenian and other Christian resistance to genocide in Turkey during World War I, and of Jewish resistance to the Holocaust during World War II. Unlike the Ottoman Christians or the European Jews, Tibetans had a very strong and longstanding gun culture. They immediately recognized that orders to register or surrender their guns were orders to submit to imminent enslavement.

Historically, Tibet comprised three large provinces: Kham (southeast), Amdo (northeast), and U-Tsang (west). Over half the Tibetan population lived in the two eastern provinces. The national capital is Lhasa, in U-Tsang. Kham and Amdo are often referred to as Eastern Tibet, while the U-Tsang area comprises most of Central Tibet. Central Tibet also includes Chamdo, the westernmost province of Kham. Resistance by the Khampos of Chamdo would help draw the rest of Central Tibet into the armed revolt against Chinese invaders.

Tibet had long exercised autonomy while acknowledging the suzerainty of another empire, either Mongol or Chinese. “Suzerainty” was a deliberately vague term. To the extent the meaning can be pinned down, it means nominal sovereignty over an internally autonomous or semi-independent state. Hugh Richardson, High Peaks, Pure Earth: Collected Writings on Tibetan History and Culture 625-30 (Michael Aris ed. 1998).

In the Tibetan view, this was a reciprocal priest-patron relationship. The Tibetan Buddhists, as priests, provided religious leadership, and the patrons helped to protect Tibet. The priest-patron model was reasonably accurate for Tibetan relations with the Mongols, who embraced the Buddhism they learned from the Tibetans. Notwithstanding Tibetan pride, priest-patron was not how the Chinese treated Sino-Tibetan relations, as the Chinese were disinclined to think they had anything to learn from mountain barbarians. All of Tibet was beyond “China proper” and the Great Wall. Supplying a foreign military presence in Central Tibet was especially difficult, resulting in de facto independence for long periods.

In the mid-eighteenth century, China’s Manchu Dynasty wrested much of Kham and Amdo from Tibet and held onto them until the dynasty fell in 1911. After a failed 1905 uprising of Tibetans in China’s Yunnan and Sichuan provinces, the Manchu Dynasty began a campaign to eradicate the Buddhist clergy, and to populate Tibetan areas with poor peasants from Sichuan. In 1910, a bloodthirsty Chinese army led by Zhao Erfeng took over Lhasa and drove the thirteenth Dalai Lama into exile.

Whatever nominal allegiance Tibet thought it might owe to the Manchu Dynasty in Peking (which the Communists later renamed Beijing), Tibet felt no obligation to the brand-new Republic of China. On August 12, 1912, the Tibetans rose up and expelled the Chinese army.

During 1917-18, Tibet repelled an attack by the Republic of China, and then advanced into Tibetan ethnic areas formerly under Chinese control, reacquiring them in the 1918 Treaty of Rongbatsa. But in 1931-32, the Republic of China pushed the Tibet army back to the Yangtze (Tibetan Drichu) River.

The most thorough attempt to delineate the Tibet-China-India borders based on historical practice was the 1914 Simla Accord. In the three-way negotiations between Tibet, China, and British India, the Tibetans produced extensive documentary evidence for their claims, while the Chinese had bare assertion. The Simla Accord divided Tibet into “Outer Tibet” (Central Tibet plus some of Eastern Tibet) and “Inner Tibet” (the rest of Eastern Tibet). The parties recognized “the suzerainty of China” and also “autonomy” and “territorial integrity” of the “country” of Outer Tibet. Simla Accord, art. 2. China would not convert Tibet into a Chinese province, and Great Britain would not annex any portion of Tibet. Id. Neither China nor Great Britain would send troops into Tibet (with some small specified exceptions); neither would interfere with the civil administration of Outer Tibet by the “Tibetan Government in Lhasa.” Id. arts. 3-4. As for Inner Tibet, “[n]othing in the present Convention shall be held to prejudice the existing rights of the Tibetan Government in Inner Tibet, which include the power to select and appoint the high priests of monasteries and to retain full control in all matters affecting religious institutions.” Id. art. 9. A map attached to the treaty delineated the borders of Inner Tibet and Outer Tibet. Id.

Although the three negotiating parties had agreed to the Simla Accord, the Chinese central government ultimately refused to ratify it because it wanted a different boundary, even though Simla had attempted to placate China by assigning to Inner Tibet many areas where Outer Tibet had the better claim. Tibet and Great Britain mutually agreed to adhere to the accord; they stated that China was debarred from enjoyment of the accord’s benefits until China ratified it.

Whatever the legal effects of the Simla Accord, the reality on the ground remained the same: “there was no modern boundary between Tibet and China; instead there were overlapping zones, open zones, and locally governed territories, both lay and monastic.” Carole McGranahan, “From Simla to Rongbatsa: The British and the ‘Modern’ Boundaries of Tibet,” 28 Tibet J. 39, 40 (2003). Kham was “mostly under the local control of hereditary kings, chiefs, and lamas. . . .” Id. Tibetans and Chinese did not think of the contested regions in the sense that European nation-states had defined their own borders—as exact lines where a nation enjoyed 100 percent sovereignty on its side, and no sovereignty on the other. The situation remained unchanged until the Chinese invasion that would come in 1949.

Starting in 1931, the Japanese invasion of Manchuria distracted the Republic of China. “By the mid-1930s, most of Tibet was again enjoying de facto independence.” Kenneth
Conboy & James Morrison, The CIA’s Secret War in Tibet 5 (2002).

As a practical matter, the Eastern Tibetans who lived within areas claimed by China or Tibet mostly governed themselves. Many were pastoralists or nomads. To the extent that they felt any allegiance to a faraway capital, it was to Lhasa, with whom they shared language and religion, and not to the more distant Peking or Nanking. (Nanking was the capital of the Republic of China from 1927-37 and 1945-49, and had sometimes been the imperial capital in previous centuries).

While always respectful of the Dalai Lama, Kham’s leaders did not necessarily feel responsible to the government in Lhasa. Likewise, before communism was imposed, the Amdowas (northeastern Tibet) comprised hundreds of nomadic tribes, each with “its own army, temples, and laws.” Jianglin Li, Tibet in Agony: Lhasa 1959 at 45 (2016). The Eastern Tibetans would contribute the greatest armed resistance to Maoist imperialism.

Today, the “Tibet Autonomous Region,” formally created in 1965 by the People’s Republic of China, does not include vast areas of historic or ethnic Tibet. Most of Amdo has been transferred to China’s Qinghai province, plus a smaller part to Gansu. While the Chamdo region of Kham is in the Tibet Autonomous Region, most of Kham is presently divided between China’s Qinghai, Sichuan, and Yunnan provinces. Tibetan ethnic areas constitute a quarter of the territory of the People’s Republic of China.

The moral duty to use force to end suffering

Tibetan identity has long been closely tied to Tibetan Buddhism (Vajrayana), which is distinct from the Hinyana (a/k/a Theravāda), Mahayana, or Zen sects of other nations. While Buddhist scriptures are predominantly pacifist, they are not exclusively so. The martial arts were created by Buddhist teachers. Buddhist nations have employed armed force for self-defense as much as other nations. The core principle of Buddhism is ahimsa, compassion for the suffering of others. In the views of many Buddhists, including the present Dalai Lama, ahimsa permits the choice to reduce the suffering of others by using violence, including deadly force, against the persons causing the suffering. See David B. Kopel, “Self-defense in Asian Religions,” 2 Liberty L. Rev. 79 (2007).

Tibetan Buddhists were familiar with the martial example Manjushri (Manjushree, Manjusri), Bodhisattva of Wisdom. He had transformed himself in a successful mission to kill Death. Many paintings depicted him with a holy book in one hand and a flaming sword in the other. Manjusri’s  sword cut through the roots of ignorance. Another bodhisattva, Vajrapani, pugnaciously defended embattled guardians of the Buddhist faith. The Epic of King Gesar told the historical (according to Tibetans) story of the great warrior king from days of yore who fought enemies of dharma—Buddhist teachings and the natural order of existence.

“Tibetan history was littered with examples of monks taking up arms when Buddhism was perceived as being threatened. . . . [W]hen defending the faith, monks could be the most magnificent of soldiers,” with a stamina and rigor fortified by the monastic lifestyle. Mikel Dunham, Buddha’s Warriors: The Story of the CIA-Backed Tibetan Freedom Fighters, the Chinese Invasion, and the Ultimate Fall of Tibet 149 (2004).

Tibet is not exclusively Buddhist. There had long been a Muslim minority that was respected and religiously free. There were four mosques in Lhasa alone. The Bon religion arose around the tenth century and was persecuted as a rival to Buddhism. By the twentieth century, it existed mainly in eastern Tibet, well beyond Lhasa’s control.

The Dalai Lama’s Proposal for Collective Defense

While Tibet was independent, the then-Dalai Lama, Thupten Gyatso (birthname Choekyi Gyaltsen), proposed a Tibet-Nepal-Bhutan defense alliance, with military training for young men. Although the Dalai Lama was head of state, much of the political power in Tibet’s quasi-feudal theocracy was held by three large monasteries in Lhasa. Their armed monks, the dob-dobs, outnumbered Tibet’s tiny army and police. As military buildup would have required substantial taxes on the monasteries, the monasteries squashed the plan. Nepal and Bhutan rejected the alliance proposal.

In a “Political Last Testament” in August 1932, Dalai Lama Thupten Gyatso wrote:

Efficient and well-equipped troops must be stationed even on the minor frontiers bordering hostile forces. Such an army must be well-trained in warfare as a sure deterrent against any adversaries.

Furthermore, the present era is rampant with the five forms of degeneration, in particular the “red” ideology. [He then summarized communist abuses of Buddhism in Outer Mongolia.] In the future, this system will certainly be forced either from within or without on this land. . . . If, in such an event, we fail to defend our land, the holy lamas . . . will be eliminated without a trace of their names remaining. . . . Moreover, our political system . . . will be reduced to an empty name; my officials . . . will be subjugated like slaves to the enemy; and my people, subjected to fear and miseries, will be unable to endure day or night. Such an era will certainly come.

Roger E. McCarthy, Tears of the Lotus: Accounts of Tibetan Resistance to the Chinese Invasion, 1950-1962, at 37-38 (1997).

Would the defense system have saved Tibet? “I’m convinced it would have,” said the current Dalai Lama, Tenzin Gyatso. Dalai Lama with Jean-Claude Carrière, Violence and Compassion: Dialogues on Life Today 149 (1996) (originally published in France as La Fource du Bouddhisme (1994)).

In the Tibetan Buddhist system, after the death of the Dalai Lama or the Panchen Lama (second-ranking), the people would wait until his reincarnated soul was discovered in a young boy. The thirteenth Dalai Lama died in 1933; Lhamo Thondup was born in 1935. Identified as a possible Dalai Lama when he was a small child in a small Amdo village, he was enthroned in 1940, taking the religious name Tenzin Gyatso. Since Dalai Lamas were chosen in early childhood, there would always be a number of years before the child reached maturity and could assume leadership. In the interim, Tibet would be governed by a regency. As history demonstrates, regencies can be dangerous, because the government is often weak and subject to intrigues. After the death of the thirteenth Dalai Lama, “the Tibetan Government, such as it was, appeared oblivious to the need for national reform to prepare for the challenges ahead.” Premen Addy, “British and Indian Strategic Perceptions of Tibet,” in Resistance and Reform in Tibet at 35. The regent “allowed the military to decline, while lining his pockets at the expense of Tibetan economic surpluses.” Dunham at 49.

The current, fourteenth, Dalai Lama has stated that he may decide not to be reincarnated. His primary motivation seems to be the avoidance of communist interference in the selection process. The communist rulers of today’s China, although officially atheist, have asserted authority over the “control and recognition of reincarnations.” The Dalai Lama notes that the communist Chinese “are waiting for my death and will recognize a Fifteenth Dalai Lama of their choice.” The Dalai Lama, Reincarnation (Sept. 24, 2011). After China declared that the next Dalai Lama’s selection process “must comply with Chinese law,” the current Dalai Lama replied, “In future, in case you see two Dalai Lamas come, one from here, in free country, one chosen by Chinese, then nobody will trust, nobody will respect [the one chosen by China].” Sophia Yan, “China Says Dalai Lama Reincarnation ‘Must Comply’ with Chinese Laws,” The Telegraph, Mar. 21, 2019.

Tibetan Arms Culture

Tibetans had a long tradition of being armed, but many of their firearms were flintlocks or matchlocks, which had long been obsolete in most of the rest of the world.

Matchlocks are impossible to keep always-ready, ill suited for long distance, poor for maintaining the user’s concealment, and quite slow to reload after the single shot. Flintlocks were better in all respects, but still far inferior to firearms invented since the mid-nineteenth century, which used metallic cartridges, and which were much faster to reload and more powerful. Tibet was economically backwards and had no firearms manufacturing industry. Tibetans could and did make their own swords and knives.

During World War II, Tibet stayed neutral, and did not authorize Allied arms shipments to the Republic of China’s army that was battling Japanese invasion. Nevertheless, wartime conditions tend to increase the gun supply, and Tibetans, especially in Kham, seem to have taken the opportunity to acquire a wide variety of modern firearms, some of them purchased in Burma and then imported.

Tibet’s formally organized military forces were small. As of the mid-1930s, Eastern Tibet had about ten thousand regulars and militia; half of them had modern British Lee-Enfield .303 bolt action rifles. In Lhasa there were under a thousand soldiers plus 300 armed police. In most of the nation, defense was provided only by militia armed with matchlocks. Military training in general was desultory. On the eve of the 1949 communist invasion, “Tibet’s army—if you could call it that—was at most ten thousand troops with nineteenth century weapons.” Dunham at 56.

Although many Tibetan firearms were inferior, Tibet’s arms culture was strong. High proficiency at riding, shooting, and swordsmanship were part of Tibetan identity, and the skills were learned early in childhood. Such skills had always been necessary for survival—whether for protection against bandits, or for hunting in an environment where neither game nor ammunition were abundant.

“Khampas were heavily armed,” skilled at brigandage, and “incomparable horsemen, hunters, and trackers.” Dunham at 7. “Every self-respecting male owned at least one silver embellished pistol or rifle, even if it was nothing more than a flintlock. The poorest of beggars carried a sword or oversized knife hitched at his waist, and he knew how to use it.” Id. at 17. Wealthy families had arsenals. So did the monasteries, with their warrior monks, the dob-dobs.

When the war began, man for man the Tibetans were far superior to the China’s misnamed People’s Liberation Army (PLA). The Tibetans often inflicted casualties on the Chinese at about ten times the rate that the Chinese did on them. Unlike the Tibetans, the Chinese were poor marksmen. While the PLA demanded unthinking obedience, the Tibetans knew how to think for themselves, to improvise and survive. In combat, PLA officers did not lead their men, but instead stayed in the rear, to shoot those who tried to escape.

According to a captured Chinese army document, PLA soldiers fired 20 bullets per Tibetan guerilla killed, whereas for Tibetans shooting at the PLA, the norm was one shot, one kill.

Moreover, the average altitude of Kham and Amdo is over 3,000 meters (about 10,000 feet), and even higher in Central Tibet. Tibetan physiology has evolved such that Tibetans breathe easily in very thin air, whereas invading lowlanders have a much more difficult time.

Supported and sheltered by the Tibetan people, Tibet’s guerillas could hit, run, and disappear. “Many people think it impossible for guerrillas to exist for long in the enemy’s rear. Such a belief reveals lack of comprehension of the relationship that should exist between the people and the troops. The former may be likened to water the latter to the fish who inhabit it. How may it be said that these two cannot exist together? It is only undisciplined troops who make the people their enemies and who, like the fish out of its native element cannot live.” Mao Tse-tung, On Guerrilla Warfare, ch. 6 (1937).

When the Chinese communists invaded Tibet, the corrupt Tibetan government failed, but the Tibetan people rose up nonetheless, as will be described in the next post.

 

 

 

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In states across the country, liquor laws are evolving. Though some states are embracing the need to alleviate the crushing regulatory burden faced by producers, sellers, and consumers alike, they’re moving too slowly—while others are moving in the wrong direction entirely. 

In Rhode Island, for example, lawmakers are considering legalizing party bikes—those oversized bicycles for a dozen or so pedalers that often feature a bartender or travel from bar to bar. (They’re not too dissimilar from Nashville’s party buses, which I wrote about last year.) That’s great news for a local motel owner in Misquamicut who spent $30,000 on a party bike his town had greenlighted, only to be “thwarted” by the state’s motor vehicle department.

“The party bike couldn’t use public streets without a license, but they had no license to give it,” the Providence Journal reported this week. “It is too large to be considered a bicycle and too slow to qualify as a motor vehicle.”

In Alaska, state lawmakers are pursuing “a wholesale rewrite of the state’s alcohol laws,” local station KTUU reported last month. One key element of the proposed overhaul results from the so-called “bar wars” that have pitted bar owners in the state against brewers and distillers that operate tasting rooms in Alaska.

The bar owners want the state government to protect them from competition from tasting rooms. They’re clearly in the wrong. The government shouldn’t protect any business from competition. But, wrong as the bar and restaurant lobby is in this case, it’s also powerful. Hence, the proposed “wholesale rewrite” as it applies to tasting rooms—which includes underwhelming improvements such as allowing them to stay open until 10 p.m. instead of 8 p.m., and allowing no more than one new tasting room in communities with at least 12,000 residents—would likely come closer to maintaining the status quo than it would to improving the regulatory climate for producers and consumers in the state. That’s one reason, no doubt, that supporters of the bill refer to it as a “grand” or “delicate” compromise.

Some other changes to state booze laws are also pedestrian at best. In New York, for example, state liquor regulators are now allowing movie theater patrons to drink beer, wine, and cider in theaters. This week, a pair of upstate theaters became the first in New York to allow the practice.

“Previously, theaters were restricted to consumption inside a café area adjoining the lobby,” the Saratogian reported, noting it took a decade of lobbying for the simple change to take effect. “Or, if the theater had a full restaurant kitchen, theater staff were only permitted to bring beverages to a patron at their seat with a fixed table.”

To New York’s credit, the state is also streamlining some other alcohol rules. For example, recently installed Gov. Kathy Hochul (D) announced this week that bar and restaurant owners will now be able to buy liquor licenses online, which she noted was a long overdue modernization.

Though slight progress appears to have been made in New York, Rhode Island, and Alaska (cue very brief golf clap), these states’ modest deregulatory moves seem downright radical when compared to what’s happening in some other states. 

In Utah, for example, a bill that’s expected to become law will mean the end of many hard seltzer sales in all but liquor stores. The ban targets seltzers that contain ethyl alcohol—a common stabilizer that’s used to help flavor many seltzers and also “soda, mustard and teriyaki sauce”—which amounts to about half the hard seltzers currently sold in Utah, including ones marketed by Budweiser, Coors, Truly, and Vizzy. Those seltzers will now be sold only at state liquor stores.

If the Utah story is ridiculous, news out of Alabama may take the cake. That state’s private liquor stores are gearing up to sue the state’s liquor regulatory agency, which wants to allow state-run liquor stores to deliver alcohol. As AL.com explains, the Alabama legislature last year moved to allow private liquor stores to deliver some alcohol. That’s good news. But the delivery law covers “licensees,” and the private liquor stores note the state-run stores—unlike them—don’t require licenses to operate. The state-run stores are also not required to pay local sales or liquor taxes, AL.com notes. In other words, the state of Alabama is senselessly in the business of competing with private sellers of the same products, already has an unfair competitive advantage when it comes to such sales, and seems willing to ignore a state law in order to obtain still more of a competitive advantage.

Why do states such as Utah and Alabama continue to sell liquor?

“ABC’s more than eight decades of selling liquor has been brought to you in large part by an unholy alliance of lobbyists, government bureaucrats, and religious groups—not to mention the landlords and special interests who collect millions from leasing land and providing other services to support the state’s alcohol operation,” an op-ed critical of the state’s needless involvement in alcohol sales noted last year.

Indeed, the less government involvement in the alcohol market—from production to sales to consumption—the better off consumers and producers are. When it comes to regulating alcohol, kowtowing to special interests—including the state itself—is like putting a Kryptonite Lock on a party bike: no fun.

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During the heyday of the sexual revolution “it was the right that was ranting against licentiousness,” notes Laura Kipnis. “Now it’s the right that are the swingers. They’re out there with their pool boys and their threesomes, and it’s the left [who practice] H.R. sexuality under the auspices of human resources departments.”

Kipnis is a professor emerita of film and journalism at Northwestern University and the author of the new book Love in the Time of Contagion: A Diagnosis, which explores the effects of COVID-19 on intimate relationships and the ever-changing battlefields in culture wars over sex, gender, and desire.

Nick Gillespie interviewed Kipnis for Reason at a live event held on Monday, March 7, 2022, at New York’s Caveat theater. They discussed how lockdowns supercharged the #MeToo movement and intensified existing generational resentments among boomers, Gen Xers, millennials, and Gen Zers. They also talked about the ridiculous disciplinary hearing Kipnis went through after graduate students at Northwestern filed a Title IX complaint charging they felt unsafe after she published an essay in The Chronicle of Higher Education about “sexual paranoia” on campuses (an experience she wrote about in 2017’s Unwanted Advances).

Edited by Adam Czarnecki.

 

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3/12/1889: Justice John Campbell dies.

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After California voters decided to legalize the cultivation and sale of recreational marijuana in 2016, the vast majority of the state’s cities banned those activities within their borders. But Adelanto’s leaders were eager to embrace the newly legal market. The small desert town of 31,000, best known for its nearby prisons, had a reputation for poverty and emptiness. Local politicians hoped legal marijuana would change that.

In May 2017, the Adelanto City Council approved a plan to license recreational growers and retailers, making the town one of the first in the state to do so. That early, atypical choice attracted a lot of national press coverage. In an interview with The New York Times, then-Mayor Richard Kerr predicted that Adelanto could raise $10 million annually by taxing local marijuana businesses.

It didn’t happen. Adelanto’s budget for 2020–21 anticipated just $1.4 million in marijuana revenue, less than a third of the city’s projected $4.5 million budget deficit. While that $1.4 million is money the town would not have seen without legalization, it clearly isn’t enough to save Adelanto.

Kerr is no longer Adelanto’s mayor. The FBI raided his home in 2018 as part of a corruption investigation. Three years later it arrested him on seven counts of wire fraud and two counts of bribery. Kerr is accused of taking at least $57,000 in bribes and kickbacks to approve permits for marijuana businesses. His arrest came four years after then–City Council Member Jermaine Wright was accused of taking a $10,000 bribe from an undercover FBI agent posing as an applicant seeking approval for a local marijuana transportation business.

Other local officials in California have been implicated in similar corruption. In July, marijuana magnate Helios Dayspring pleaded guilty to bribing a now-deceased San Luis Obispo County supervisor for years in exchange for favorable policy votes. The plea agreement did not name the supervisor, but news reports identified him as Adam Hill, who died of an overdose that was deemed a suicide in 2020.

After Dayspring’s guilty plea, the Los Angeles Times implied that the problem was California’s “nascent, ill-regulated marijuana industry.” Stories about California’s marijuana market commonly describe it as a “Wild West” situation.

It is true that California has badly mishandled legalization—so badly that, more than five years after voters approved that change, the black market still accounts for an estimated two-thirds of cannabis sales. But far from the result of weak regulation, the disastrous rollout of legal marijuana stems from giving officials too much power to decide who can produce and sell it.

Where Are the Shops?

Most California cannabis consumers do not buy pot from state-licensed shops. Market observers such as Global Go Analytics estimate that illegal cannabis sales in California total $8 billion a year, double the amount of legal sales.

One reason for the black market’s persistence is that many Californians do not have easy access to legal retailers. California has only two licensed dispensaries for every 100,000 residents, compared to about 18 in Oregon and 14 in Colorado.

Proposition 64, the ballot initiative that legalized recreational marijuana, authorized municipalities to cap the number of local retailers or prohibit them entirely. For every California city that allows dispensaries, two have banned them.

While Prop. 64 allows people to grow their own marijuana, that alternative has little appeal for consumers who lack the requisite space, equipment, and know-how. In the parts of the state where retailers are banned, this policy is akin to letting people brew their own beer while denying them the ability to buy the finished product from a local store.

Online orders are another theoretical option. State regulations issued in 2020 seemed to bar local governments from interfering with state-approved marijuana deliveries. But 24 cities that had outlawed sales challenged the regulation, claiming it interfered with their local bans. A Fresno judge dismissed their suit, but in a way that left a lot of regulatory uncertainty.

For Californians who live near licensed dispensaries, the price of marijuana can be exorbitantly high due to state and local taxes. The state imposes a 15 percent excise tax on retail marijuana sales, along with a weight-based cultivation tax that is indexed to inflation. Thanks to rising inflation in 2021, cultivation taxes jumped at the beginning of 2022, even though the market value of cannabis had declined.

Prop. 64 also allows local governments to impose their own taxes, and many do. In Los Angeles, legal cannabis buyers pay a 10 percent local marijuana tax, along with the state’s marijuana taxes and an additional 9.5 percent general sales tax. All told, taxes increase the retail price of legal marijuana in L.A. by more than a third. People who buy marijuana from illegal dealers, by contrast, can avoid that burden entirely.

Meanwhile, the power that Prop. 64 gave local governments fosters corruption. When Adelanto leaders announced that they would let the marijuana industry in, there was a land rush. Because so few cities were welcoming of marijuana businesses, everybody interested in establishing a presence in the industry wanted to set up shop in Adelanto. Property values tripled.

For these early speculators, it was very important that the property they purchased end up in areas zoned for the marijuana industry. As the Adelanto City Council prepared to vote on the locations where marijuana retailers would be allowed, according to the federal indictment against Kerr, he asked for a boundary change to accommodate a specific business property; a week later, Kerr deposited a $5,000 check from the real estate trust account of that property’s owner. According to the FBI, Kerr received additional checks from this unnamed individual and others as the city continued to craft its marijuana ordinances, and he helped the owner get a dispensary permit.

Bribes also can be used to gain a competitive advantage through regulatory exceptions. Dayspring confessed to paying for an exemption from a proposed county moratorium on outdoor cultivation operations. In a text to Hill before county supervisors approved the exemption in 2018, Dayspring emphasized that “it’s really important u guys extend the timeframe for submission and don’t allow other people in yet.”

Because marijuana is still banned by the federal Controlled Substances Act, financial institutions are leery of serving businesses that grow or sell it, which under current law could expose them to criminal charges, forfeiture, and potentially ruinous regulatory sanctions. Thanks to that threat, state-licensed marijuana businesses frequently have to operate without access to banking services. Instead, they generally rely on cash, which increases the risk of theft and robbery.

All that cash also facilitates corruption. Some of California’s bribery cases feature literal wads of money changing hands.

In June 2020, two former officials from Calexico, a city on the Mexican border with a population of about 40,000, pleaded guilty to accepting envelopes stuffed with cash from undercover FBI agents they thought were trying to open a marijuana dispensary. David Romero, a former councilman, and Bruno Suarez-Soto, the city’s former commissioner for economic development, had promised to fast-track the license for the fictional business.

According to the FBI’s complaint, Romero and Suarez-Soto also offered to “revoke or unduly delay cannabis business permit applications filed by applicants who had not paid bribes, in order to ensure favored treatment for later-filed applications submitted by individuals who had paid or agreed to pay bribes.” They set up a shell company that appeared to be a consulting firm but existed primarily to launder the bribes they had received.

Douglas Berman, executive director of the Drug Enforcement and Policy Center at the Ohio State University’s Moritz College of Law, thinks federal prohibition fuels such corruption. “Everybody is breaking federal law,” Berman says. “The kind of elaborate corporate structures and real estate transactions that are necessitated by federal prohibition makes [corruption] easier or more likely.” Berman adds that California’s burdensome licensing system, which requires marijuana businesses to get state and local permission before they can operate, might make would-be growers or retailers feel they have to grease some wheels just to get off the ground.

The Scourge of ‘Local Control’

All of these corruption cases revolve around the reality that marijuana legalization under Prop. 64 has given local officials a tremendous amount of power to determine who can participate. With two-thirds of California cities banning marijuana businesses, dozens of supplicants converge on jurisdictions that have decided to allow them and fight each other for limited licenses and approved locations. Cities add their own taxes in the hope of covering budget shortfalls or jump-starting their economies, which makes it harder for legal businesses to compete with the black market.

Rather than liberating its citizens from the drug war, California has turned government officials into cartel bosses. It’s no wonder that the black market still dominates marijuana sales: The government’s terms are terrible.

In a sense, this system is what California voters approved. The fact that cities could say no to marijuana businesses was one of Prop. 64’s selling points. While polls consistently show that a large majority of Americans favor marijuana legalization, that does not necessarily mean they would welcome pot shops in their neighborhoods. And those who would can be outmaneuvered by small numbers of powerful naysayers.

“Local control is the primary factor that is crippling California’s market,” says Hirsh Jain, founder of the marijuana consulting firm Ananda Strategy and chair of the Los Angeles Marijuana Chamber of Commerce. “Local control is often framed as a democratic virtue. In practice, local control is being used to thwart the will of the voters.”

In dozens of California cities where most voters favored Prop. 64, Jain notes, local politicians nevertheless are blocking dispensaries. Last fall, local residents who object to that situation started gathering signatures for ballot initiatives that would force officials in places like Manhattan Beach and Redondo Beach to let retailers in. Some cannabis business advocates are pushing for a new statewide ballot initiative that would restrict or remove cities’ authority to completely ban marijuana sales.

Even when cities allow dispensaries, they often impose arbitrary caps on the total number or create maddening bureaucracies that frustrate people who try to follow the rules. It has been more than five years since Prop. 64 passed, and Fresno only recently began approving licenses for recreational stores. Last fall the city manager, who has the final authority to decide who can sell marijuana, approved 21 applications (three in each city district) based on interviews and a complicated scoring system. Four companies that were denied licenses sued the city in November and December, complaining that the process was opaque and that some successful applicants had hired frontmen to feign local ownership, which earned them bonus points.

In Los Angeles, the incredibly slow speed of the licensing process has left aspiring cannabis entrepreneurs hanging. As of January, L.A. had 217 licensed recreational retailers serving a population of 4 million. By comparison, Denver, with a population of about 700,000, lists 476 retail locations.

Three years ago, Los Angeles created a “social equity program” that was supposed to assist applicants who had been arrested, convicted, or otherwise harmed by the war on weed. But the rollout has been a mess. Since the program launched, Jain notes, only 20 social equity–approved storefronts have opened. Dozens more struggle to navigate the bureaucracy.

The program does not seem to be designed for the disadvantaged people it was supposed to serve. “Applicants needed to secure a property” to qualify, Jain notes. “Some had to take loans and were paying rent for storefronts. It bankrupted some applicants and made sure only the most well-capitalized could participate.” Not exactly a winning model for lifting up the poor.

Cannabis entrepreneurs who survive the licensing gauntlet still have to deal with complicated, burdensome, and expensive regulations imposed by two levels of government. Fresno, for example, requires more than $8,000 in application fees from those vying for the small number of licenses being distributed, and the eligibility process requires applicants to include six separate plans describing different components of their proposed business’s operational models. Each of those plans can have a dozen or more city-mandated information requirements.

The barriers that keep cannabusinesses from operating in California look a lot like the barriers that keep developers from building new housing in the state. Citizens can even use the broadly worded California Environmental Quality Act to block marijuana businesses, just as they can with apartment complexes they oppose. In April, environmental groups in Humboldt County filed a lawsuit aimed at preventing approval of an 8.5-acre marijuana grow operation.

Given the legal barriers in both areas, it is not surprising that California’s cannabis corruption resembles some of the state’s development-related scandals. In June 2020, a federal indictment charged Jose Huizar, then a member of the Los Angeles City Council, with taking $1.5 million in gifts and bribes from real estate developers who wanted to get their projects approved. In a separate case last year, the city agreed to a $150,000 settlement with Jesse Leon, a former Huizar aide who claimed he was fired for alerting federal investigators that his boss might have been looking for campaign donations from marijuana businesses in exchange for similar favorable treatment. Huizar, who has not been charged with taking bribes from cannabis companies, denied Leon’s claims, pointing out that Leon himself had gotten into ethical hot water by attempting to participate in L.A.’s marijuana social equity program while working for the city.

California’s New War on Weed

“California can emerge from this marijuana mayhem by flipping the incentives,” the Los Angeles Times editorialized in December. “It’s too easy and profitable to remain in the black market and too onerous and expensive to join the legal one. By easing licensing procedures or reducing taxes temporarily, and ramping up enforcement and penalties for illegal operators, the state has a better chance of coaxing fence-sitting operators to get licensed.”

So far the government’s response to “this marijuana mayhem” has focused on tougher enforcement and penalties rather than lighter taxes and regulations. Prop. 64 authorized civil penalties against unlicensed marijuana growers and sellers, who also are guilty of misdemeanors punishable by a $500 fine and up to six months in jail. A law that took effect at the beginning of 2022 doubles down on that approach, allowing civil fines of up to $30,000 per violation against anyone guilty of “aiding or abetting” unlicensed cannabis commercial activity. Each day of assisting illegal sales or cultivation is a separate violation.

The Drug Policy Alliance and the American Civil Liberties Union opposed that law, warning that the wording is vague (it doesn’t define “aiding and abetting”) and will let local law enforcement target low-level employees, who could have their wages garnished and driver’s licenses suspended. But the United Cannabis Business Association welcomed the new penalties, saying “the illicit cannabis market must be shut down to ensure that legal operators can see an increase of patients and consumers, which creates union jobs.”

In October, California Attorney General Rob Bonta bragged about a 13-week operation by state and local law enforcement officials that rounded up and eradicated more than 1 million illegally grown marijuana plants. The cops targeted growers who tried to escape oppressive fees, taxes, and licensing demands by operating in rural areas.

Raids like these were a familiar feature of life in California for decades before voters approved legalization. The difference now is that the government is promoting a black market not by banning marijuana but making its production and sale absurdly difficult to accomplish legally.

The post Corruption and Crackdowns in California's Marijuana Market appeared first on Reason.com.

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