Who Will Legalize Pot Next?
In Barack Obama: The Story, biographer David Maraniss writes that the president spent his youth in Hawaii getting stoned on a paved road up Mount Tantalus, where he took “roof hits” in smoke-filled cars with his friends, the Choom Gang. (To “choom” is Hawaiian slang for smoking marijuana.) Obama loved weed so much, Maraniss writes, he thanked his pot dealer, but not his mother, in his high school yearbook.
Decades later, the Choomer turned president is in a historically unprecedented position when it comes to drug policy in the United States. Marijuana is illegal under the Controlled Substances Act, but two states, Washington and Colorado, voted in November to legalize and regulate its sale and use by adults 21 and older. This conflict with federal law puts all eyes on Obama, who, despite his smoke-filled teenage years, has refused to consider marijuana legalization as an alternative to prohibition. Indeed, drug policy reformers have endured a rocky four years (to put it mildly) in their relationship with the Obama administration. That’s why, when the president told Barbara Walters in December that his administration had “bigger fish to fry” than prosecuting recreational users of state-legal pot, legalization advocates took that statement with a grain of salt. The last time Obama said he would allow the states to determine their own policies on medical marijuana, he ended up busting more state-sanctioned dispensaries than George W. Bush.
Ethan Nadelmann, executive director of the Drug Policy Alliance, is confident that the recent state-level legalization victories mark a “turning point” that will inspire more politicians and voters to become curious, even passionate, about marijuana policy. “It’s causing lawmakers to rethink this issue,” Nadelmann says, adding that political risk is “the same reason the White House said nothing about the ballot initiatives in Washington and Colorado before the election.”
While preparing a response to a possible federal crackdown is a priority for the legalization movement, advocates are hoping for more than just nonintervention from the feds. They would like to see an open conversation about drug policy that will turn more policy-makers into legalization advocates, and more states (red and blue alike) a cannabis-friendly green. For that domino effect to happen, however, they must first craft a message that convinces people that voting for reform or even outright legalization is not a vote for pot, but a vote against the multidimensional disasters of prohibition—a web of mass incarceration and racial injustice, tangled up with everything from foreign policy to public benefits at home.
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According to the FBI, in 2011 more than 750,000 Americans were arrested for marijuana-related offenses, accounting for roughly half of all drug crimes in the United States. Eighty-seven percent of marijuana-related arrests were for possession alone—a minor crime that can still cause major problems in one’s life.
The good news is that, should the feds decide to crack down on Colorado and Washington, there is no way to force local law enforcement to arrest marijuana users in those two states. They could, however, still go after some large-scale distributors, as they have done with medical marijuana suppliers in California and Montana.
That’s why the marijuana legalization movement’s first priority, says Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), is making sure that all goes smoothly in Washington and Colorado. It must ensure that policy-makers follow through on implementing legalization, to avoid situations like the one in Delaware, where a medical marijuana bill was passed in April 2011 but has never taken effect.
At the same time, Armentano says, legalization advocates must make sure that new laws continue to reflect the will of the voters. This means establishing viable and effective guidelines to regulate how marijuana will be sold and consumed, while also looking out for unnecessary regulatory schemes. In effect, Washington and Colorado must create a model that lawmakers from other states won’t be afraid to support.
“With drug law reform, it’s the states that move federal policy,” Armentano adds. “There’s going to continue to be increased efforts at the state level to bring about additional reforms—legislative in 2013, or possible citizen initiatives in 2014 or 2016.” These will include everything from medical marijuana legalization to decriminalization of possession to full legalization of recreational use and sale.
The Marijuana Policy Project (MPP) tells The Nation that the next round of marijuana legalization measures is most likely to come from Alaska, Maine, Oregon, California, Massachusetts, Rhode Island and Nevada. Meanwhile, Armentano is optimistic that, elsewhere, efforts to decriminalize, rather than legalize, pot stand a particularly good chance at success, since they do not invite the same conflict with the feds. (Decriminalization typically reduces the penalties for small amounts of marijuana possession from an arrest to ticket or fine, while legalization removes all penalties for adult possession and sale.)
Texas and New Jersey have already introduced decriminalization bills. In New Hampshire, MPP says, three bills will be introduced this year: one to legalize medical marijuana, one to decriminalize, and one to tax and regulate. “The election of Governor Maggie Hassan, who has expressed support for medical [marijuana], means a medical bill would almost surely be signed,” says MPP’s Mason Tvert.
Still, Armentano believes that legalization bills will remain on hold until state lawmakers can feel reasonably confident that there will be no federal crackdown. “To be realistic, I don’t think that we’re going to see a state legalize legislatively in 2013. Most state lawmakers are going to want to take a wait-and-see approach for at least a year, maybe two, to see how this all shakes out in Colorado and Washington.”
A year from now, says Rick Steves, a PBS travel show host who co-sponsored the Washington initiative (I-502), residents in that state can expect stores selling pot to open their doors, though under stringent regulations. Indeed, while some in the legalization movement have criticized I-502 for being too strict—a DUI provision has been especially controversial—Steves notes that “we had to seriously consider and address the concerns of the public that does not use marijuana.” Part of the goal was to “write a law that is so public-safety-minded that you get local law enforcement endorsing it.” That strategy worked: not only did a Seattle sheriff and former prosecutor endorse the initiative, the former prosecutor co-sponsored it.
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A much bigger challenge than passing state-level reforms will be convincing Congress to take up the issue. But advocates say they are up to the challenge. “It is a high priority of NORML and other organizations to take the victories of Colorado and Washington and try to translate them into a much more serious and prolific discussion in Congress,” Armentano says. He predicts that at the federal level too, “a greater number of elected officials [will be] talking about marijuana-law reform.”
As for potential allies in Congress, MPP’s director of government relations, Steve Fox, says the reform movement’s “biggest supporters are in the Democratic caucus.” With Ron Paul and Barney Frank—previously the “biggest players”—gone from Congress, Fox says there’s “a lot of younger people coming up, trying to take the mantle.” He cites Jared Polis of Colorado, Earl Blumenauer of Oregon and Steve Cohen of Tennessee as leading the charge, adding: “The mood in DC on this issue has completely shifted in light of the recent election.”
Representative Diana DeGette of Colorado has already introduced the Respect States’ and Citizens’ Rights Act of 2012, which would amend the Controlled Substances Act to exempt state marijuana laws from federal control. This kind of legislation, aimed at finally resolving the conflict between state and federal law regarding marijuana, is what Americans can expect to see coming out of Congress over the next four years. (Whether it can garner enough votes to pass is another story.)
The key to that effort is messaging, says Tom Angell, the founder and chair of the group Marijuana Majority, who points to recent polls showing that most Americans do not want the federal government interfering in Washington and Colorado. “Our task now,” he adds, “is to show [elected officials] that the voters are way ahead of them, and that they’ll be rewarded for speaking up and not punished for it.” Bridging that gap between public opinion and policy, however, requires instilling in politicians the confidence necessary to attach their names to marijuana-law reform. Marijuana Majority is dedicated to this work; much of what it does is spread awareness of the broad range of support for marijuana-law reform so that an increasing number of people, politicians and citizens alike, realize that “when you speak out for marijuana reform, you’re in good company and won’t be attacked and marginalized.”
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If supporting pro–marijuana legalization is increasingly mainstream, so is the opinion that the drug war as we know it has failed. Even Obama’s drug czar, Gil Kerlikowske, head of the Office of National Drug Control Policy, has distanced himself from the “war on drugs,” recasting it as a public health issue. “There is some truth to the notion that there’s been a shift,” Nadelmann says, but he adds that legislators have failed to match their rhetorical shift with a change in funding, and that spending for incarceration still outweighs funds for treatment.
The White House, too, has not lived up to its rhetoric. “I think the Obama administration would be well served to take a page from what the states are doing with respect to incarceration policy in general,” says Mary Price, vice president and general counsel for Families Against Mandatory Minimums (FAMM). She adds that while much reform at the state level is driven, at least in part, by budgetary concerns, “it’s also driven by a new interest in evidence-based solutions” to criminal justice problems. Harm reduction, rather than incarceration, is one kind of drug policy that would use a public health model to minimize and prevent the harms (such as overdosing) that are often associated with drug use.
Still, while the Obama administration has shown some signs of taking a more public-health-oriented approach (by backing federally funded needle exchange programs, for example), it has been silent on prisons. “What’s telling is that Obama has yet to make one powerful comment about the high rate of incarceration in this country, or the fact that we have the highest rate in the world, or the incredible racial disproportion involved,” says Nadelmann, who adds that while Obama worked early on to reduce the racially charged sentencing disparity for crack versus powder cocaine (from 100-to-1 to 18-to-1), “there’s really been a lack of leadership.”
The disconnect is particularly egregious given the outsize role of mandatory minimum sentencing in drug cases. As Price notes, the “stacking” of such mandatory minimums leads to such injustices as the case of Montana medical marijuana provider Chris Williams, who initially faced over eighty years in federal prison for possessing both marijuana and guns—neither of which were illegal under state law at the time. “If a gun is found in connection to the offense, even if it is not directly related, the person is subject to this rather extreme mandatory minimum,” says Price, who explained that the first gun charge carries a minimum of five years, followed by a twenty-five-year minimum for every additional charge. (Prosecutors ultimately offered Williams a plea deal that would reduce his sentence to five to ten years.)
With the Sandy Hook tragedy moving Obama and Congress to target guns, Price says she is “somewhat concerned” that the House might push for new mandatory sentencing schemes. But vocal opposition by Senator Patrick Leahy to mandatory minimums gives her confidence they would not pass the Senate.
Coupled with drug reform victories, such progressive stances by elected officials reflect a larger ongoing shift in attitudes toward criminal justice policy, driven by the states. Increasingly, people realize that the country’s exorbitantly expensive, excessively harsh prison system has been more costly than it has been successful at making us safe. The question is whether Congress and the White House will recognize this and use their powers to expedite, rather than impede, change.
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Mark Hertsgaard: “Climate Activists Put the Heat on Obama”
Laura Flanders: “Demanding Women”
John Nichols: “The Election Reform Moment?”