Dispatch From Denver: What’s Next in the Fight for Pot Legalization?
Denver—Halfway through the International Drug Policy Reform Conference in late October, I found myself sitting on a bus among delegates from Japan, Russia and Canada. We had been invited to a “mobile workshop,” involving visits to two of the city’s marijuana businesses. One year after Colorado passed Amendment 64, a historic ballot measure legalizing marijuana, my Japanese and Russian companions painted grim pictures of their countries’ prospects for improving cannabis policies. The Canadian, on the other hand, was confident that her country will fully legalize as early as 2015—if Justin Trudeau’s opposition Liberal Party wins the next election, as many predict.
As we drove, our tour guide outlined current Colorado law: You can now legally possess up to one ounce of marijuana. You can also grow up to six plants—in an enclosed, locked space—for personal use. Licensed marijuana businesses can now cultivate, manufacture products and sell—to registered medical marijuana patients only for now, but to all other users aged 21 and up from January 1. Public consumption remains prohibited: “If you wanna blaze, it’s your choice, but be aware you might get arrested,” came the advice at the start of an anti-drug war rally up Denver’s 16th Street Mall the previous day.
Both the businesses on our itinerary were gearing up for an anticipated surge in demand once they’re allowed to sell to non-medical users in 2014, which will raise challenges in terms of production and potential expansion. Our first stop was “Good Chemistry,” a café-sized urban dispensary with about a dozen employees. Jars of bud with labels like “Chernobyl” and “Sour Diesel” lined the shelves. Displaying a reverence for the plant and its properties, my tour companions engaged the staff in technical discussions of dosage levels, oil extraction and the effects of different cannabinoids. In the kitchen, pots of infused butter bubbled away, and a staffer detailed the production of medical marijuana edibles. He also pointed out a live-feed video camera in one corner, “so the state can take a peek.”
Next we drove to RiverRock Wellness, a much larger grow-and-dispensary operation. Norton Arbelaez, its founder, has eighty-five employees and two other retail locations. He led us through his complex: a dispensary stocking the tinctures, salves, capsules and transdermal patches that are a booming part of this market, a warehouse divided into brightly lit pods to house plants in different stages of development, and a greenhouse—altogether roughly the size of a large suburban garden center. RiverRock operates under a startling level of technical and security oversight. Each plant bears a unique barcode, indicating not only its exact strain but also the customer for which it is intended. Employees use a fingerprint access system called “BioTrackTHC” before harvesting, transporting or selling any inventory, and no fewer than eighty-four live-feed video cameras are positioned for state-peeking purposes.
Arbelaez has a bullishly capitalist attitude to growing his business and “breaking the black market” via economies of scale. Standing in front of an army of plants, he listed the jobs RiverRock has created for everyone from software engineers to plumbers. “Unleashing market forces has done incredible things for Colorado’s economy,” he declared. “Let’s fight for freedom together.”
That such a scene is possible may seem extraordinary to those more accustomed to the prohibition-only attitude that pervaded US policy until recently. But Colorado—along with Washington State, which passed its own legalization initiative, I-502—sent shock waves around the world last November. The climate has now shifted to one in which wider marijuana legalization is often seen as inevitable, with public support in the United States standing at a record 58 percent and other countries emboldened to move forward with their own reforms. So where better than Denver to hold a three-day international gathering of the drug-policy reforming clans?
Hosted by the Drug Policy Alliance, the “Reform” conference is a biennial event, which this year drew well over a thousand delegates from forty-two countries, representing hundreds of organizations, to Denver’s Downtown Sheraton. There I met Steve DeAngelo, a renowned and passionate advocate for medical marijuana (which is currently legal in twenty US states), who has been campaigning for forty years. Instantly recognizable by his braids, his hat and the small dog that accompanies him everywhere, DeAngelo is the executive director of Harborside Health Center, a medical marijuana dispensary in Oakland, California, that calls itself “the largest pot shop on the planet.”
I asked him how the industry should work. “My vision is for the legal distribution to be conducted in licensed shops; licensing should be rigorous and merit-based,” he said. He is, however, open to some involvement from larger businesses, particularly when it comes to some of the specialized preparations and delivery systems that target particular ailments or body parts. “I think there is a legitimate role for pharma companies,” he said. “But 95 to 99 percent of users are not going to need or want to pay the extra cost for pharmaceutical preparations.” And should Big Pharma try to dominate, “We will go out and do what we’ve always done: Plant the seeds, grow the plants, harvest and distribute. And we will take back this industry from them.”
The more you learn about different regulation practices, the more complicated it seems to get, so I attended a panel called “Models of Marijuana Regulation Around the World” with some trepidation. “Prohibition isn’t an either/or proposition,” said Sam Kamin, director of the Constitutional Rights and Remedies Program at Sturm College of Law. Instead, it often comes down to narrow technical questions, or what he calls “nerd talk.” Washington and Colorado demonstrate that legalization can differ in the details. For example, the former has handed licensing control to the its State Liquor Control Board, whereas in Colorado the Department of Revenue is responsible for regulating cultivation, production and distribution—which may indicate, said the panelists, different priorities. And in Washington, unlike Colorado, limited non-medical home cultivation is still not permitted.
Under Uruguay’s imminent legalization plan, meanwhile, private companies will be able to grow cannabis, but only the government can buy the crops, which will then be sold to consumers for just $1 a gram by licensed pharmacies. Elsewhere, less defined situations exist, like the gray-market “coffeshops” in the Netherlands. In Spain, a network of nonprofit “social clubs” is taking advantage of that country’s longstanding decriminalization of marijuana for personal use to create a situation of “de facto legalization.” As many as 500 clubs there cultivate cannabis crops by pooling the two home-grown plants per person permitted by Spanish law. To join one, you must either be a registered medical user or be invited by the existing members.
Beau Kilmer, co-director of the RAND Drug Policy Research Center, said that it may be wiser, at least initially, to adopt a state-monopoly or nonprofit model, rather than a commercial one. “Once you allow profit-maximizing firms to come in, it’s hard to put the genie back in the bottle,” he pointed out, because of the powerful lobby that the jobs and money of a commercial industry will create. Another pitfall of commercial models is the near-impossibility of setting the right level of taxation, said Pat Oglesby, founder of the Center for New Revenue. Set the tax rate too high, and legal marijuana won’t be cheap enough to undercut the illegal market. Set it too low, and “you have to worry about the reaction of the soccer moms, if economies of scale drive prices to $20 a pound.” Fixed rates are always likely to become wrong in such a fluctuating market, he added, and government tends to be “not nimble enough” to adjust them at short notice. (Washington has set a 25 percent sales tax, while Colorado has just ratified a 15 percent excise tax plus a 10 percent special sales tax for non-medical sales.)
Even as they debate such details, experts are careful to acknowledge that legalization could still be derailed—and to seek to manage expectations. “What goes up can go down,” warned Rob MacCoun, professor of law and public policy at UC Berkeley, referencing the drop in support for legalization during the 1980s. “This is not inevitable historical determinism.” MacCoun and other panelists mentioned several potential factors that could stall or even reverse current momentum: Plummeting prices could cause a spike in adolescent use; an unexpected perspective-altering event (like 9/11) could transform the landscape; a rogue 2016 presidential candidate could hijack the conversation. And unless the cannabis industry’s banking issue—businesses can’t open accounts with federally insured institutions—is resolved, crimes associated with the large quantities of cash floating around the industry could also wreak political damage.
Other, more powerful industries could identify marijuana as an enemy and sink serious dollars into anti-legalization campaigns. Big Alcohol in particular could be threatened by the kind of SAFER messaging (presenting evidence that marijuana is much less dangerous than alcohol) of which Rob Kampia, executive director of the Marijuana Policy Project, is an architect. “I’m getting lobbied pretty hard by the alcohol industry to change that message,” Kampia said. There are other potential enemies: “Medical marijuana is a threat to the pharmaceutical industry,” said attorney and activist Henry Wykowski. “They’re going to push back.”
Steve DeAngelo also identified internal threats to the unity of the marijuana movement, like tensions between medical marijuana and “adult use” advocates (who each accuse the other of damaging their respective prospects with insensitive messaging), distrust between grassroots activists and professional political consultants, and antagonism between libertarians and left-wingers.
The movement certainly has a kaleidoscopic feel, with suits, cowboy hats, dreadlocks and tie-dye mingling enthusiastically at the Sheraton. That’s partly a reflection of the DPA’s deliberate policy of diversification, reaching out to minorities, faith communities and different political camps. High-visibility groups in attendance included the former cops of Law Enforcement Against Prohibition, community activists from Vocal-NY and the fluorescent-clad representatives of DanceSafe. The list of over fifty roundtable discussions and panels included “The War on Drugs: A War on Migrants,” “Hip-Hop and the War on Drugs: Moving From Reference to Real Talk on Ending the Drug War” and even “View From the Right: Building the Libertarian and Conservative Presence in the Drug Policy Reform Movement.” Numerous sessions were held wholly or partly in Spanish.
In his opening-day speech in the celebratory atmosphere of the hotel ballroom, it was significant that DPA Executive Director Ethan Nadelmann, who has previously sounded more cautious notes, admitted, “I think we’ve hit the tipping point on marijuana.” But he emphasized, too, that marijuana legalization is only one strand of a sweeping drug-policy reform agenda. He implored delegates “not to wash your hands of being a drug-policy reformer” once the marijuana battle is won but to continue fighting for harm reduction measures and the liberalization of other drug laws. “It’s an appeal to the people who are primarily marijuana activists to remember that they’re part of a broader struggle,” he told me later. “There is a marijuana exceptionalism that works in our favor: If you send e-mails out, people will read it because it’s about marijuana—then they’ll read about the other stuff. But it’s important to balance that with the knowledge that all sorts of people are being persecuted.”
Nadelmann also fears the impact of big business on a fledgling but lucrative legal marijuana industry. He warned the crowd that capitalist forces in a legal market “are even more brutal in some respects” than those in the illegal market, and promised to fight for jobs for people who have made their living in the illegal industry. I asked him to elaborate. “Hundreds of thousands of people are involved in the illegal or gray market, from poor or middle-income white people in rural areas to young men of color in urban settings,” he explained. “Many would have a hard time competing in a legal marijuana economy. Many support legalization even though they won’t benefit from it financially. I want to make sure they’re not just swept away by the ‘Marlborization’ of marijuana.” He added, “I also think from a public health perspective we’re better off with a microbrewery model than a mass-market model. If consumption increases after legalization, OK. But I’d prefer that it didn’t skyrocket.”
Marijuana’s answer to Budweiser is unlikely to emerge just yet, but there’s no doubt that the lobby is already undergoing an uneasy transition from being activist-dominated to business-dominated—although the line between activist and entrepreneur is often blurred. In this context, the right to home-grow is cherished by many campaigners because it ensures an opt-out from the commercial system.
Numerous activists I spoke with shared Nadelmann’s preference for a microbrewery model. Some small-business owners were more ambivalent. Bruce Granger, who owns a “medium-sized” dispensary called “Kind Love” in Glendale, Colorado, would—ultimately—be happy enough to compete with a marijuana giant. “Given that the federal government legalized, then we should have an open market,” he said. “People should be able to buy a poorly grown, ineffective, inexpensive product, just as they should be able to buy a high-quality, effective, more expensive product.”
Whatever the model, activists are anxious to see which states will be first to follow in Colorado and Washington’s footsteps. Karen O’Keefe, director of state policies for the MPP, reeled off a list: The three front-runners are Oregon and Alaska, which will both see ballot initiatives in 2014, and Rhode Island, which could legalize via its legislature. California, Massachusetts, Nevada, Arizona, Montana and Maine will all probably have ballot initiatives in 2016. Meanwhile, Vermont, and perhaps Hawaii and Delaware, could take the state legislature path in 2015, said O’Keefe, followed by Maryland and New Hampshire, “hopefully by 2017 or so.” She also mentioned the likelihood of “some surprises coming through,” tipping Texas as a possibility for around 2019. Missouri is another wild card: Local activists think that despite its Bible Belt credentials, strong beliefs in individual liberty grant a “slight possibility” of a ballot initiative as early as next year.
Predicting change at a federal level can be harder. Dan Riffle, the MPP’s director of federal policies, believes that we won’t see federal legalization within a decade, but anticipates incremental changes, including a bill to safeguard states’ marijuana rights within six to eight years. The reclassification of marijuana under the Controlled Substances Act from Schedule I to Schedule II is another likely staging post. Graham Boyd, counsel to Peter Lewis, a major financial backer of this movement, predicted that the leading 2016 presidential candidates will cautiously support states’ rights to legalize but claim that they “need more evidence” before backing federal legalization. By the 2020 election, Boyd suggested, the issue will be safe enough for candidates to go the extra mile.
By then, other countries may have moved ahead. Steve Rolles, senior policy analyst for Transform, named Costa Rica, Argentina, the Czech Republic, Switzerland and Belgium among the nations where legalization is a possibility in the near future. Portugal and Colombia are also among the countries where possession for personal use is decriminalized. But the first country to legalize marijuana will be Uruguay. Its legalization bill passed its lower house of parliament and is currently with the Senate Health Committee. Despite a couple of delays, Julio Calzada, the secretary general of Uruguay’s National Secretariat on Drugs, felt confident enough to say in Denver, “It will certainly be approved by the government in the next couple of weeks.”
With such exciting prospects ahead, those who gathered again in the ballroom for the closing plenary on October 26 gave loud approval to a diverse range of speakers, as if to demonstrate that what unites them is much more important than what divides them. The next Reform conference is scheduled in Washington, DC, in 2015, by which time this movement will certainly have broken more new ground.
Some of the last words belonged to Ira Glasser, the DPA’s board president and a former head of the ACLU, whose speech repeatedly linked the wider agenda of drug law reform with other previous and ongoing social justice movements. Despite Washington and Colorado, he said, “We haven’t won. Not only because it’s only two states out of fifty, but because it’s only one issue out of many. Marijuana legalization ain’t enough.”