Feature: Drug Policy Reform and Sentencing Initiatives on the November Ballot

With election day little more than a month away, it is time for a round-up of drug policy reform initiatives facing voters in November. Not only are there a number of state-level initiatives dealing with marijuana decriminalization, medical marijuana, and sentencing reform (or its opposite), there are also a handful of initiatives at the county or municipal level.

But after a spate of drug reform initiatives beginning in the mid-1990s and continuing into the beginning of this decade, the pace has slowed this year. Of the 139 statewide initiatives identified by the Initiative and Referendum Institute as making the ballot this year, only seven have anything to do with drug reform, and four of those seek to increase sentences for various drug offenses.

Drug reformers have had an impressive run, especially with medical marijuana efforts, winning in Alaska, Arizona, California, Colorado, Maine, Montana, Nevada, Oregon, and Washington, and losing only in conservative South Dakota. Reformers also scored an impressive coup with California's "treatment not jail" initiative, Proposition 36, in 2002. At the municipal level, initiatives making adult marijuana offenses the lowest law enforcement priority have won in cities across California; as well as Denver; Seattle; Missoula County, Montana; Eureka Springs, Arkansas; and Hailey, Idaho. Detroit and several smaller Michigan cities have also approved municipal medical marijuana initiatives.

One reason for the slow-down in reformers' resort to the initiative process is that, as Marijuana Policy Project assistant communications director Dan Bernath put it, "We've already grabbed all the low-hanging fruit."

While medical marijuana initiatives have had an impressive run, the remainder of the 22 initiative and referendum states -- Arkansas, Idaho, Illinois, Massachusetts, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Utah, and Wyoming -- present a more difficult social and political terrain, in most cases. Running a successful initiative is also costly, said Bernath.

"Only half the states have initiatives, so there are only so many places where reformers can push them," he said. "And it is an expensive process that is often complicated. On the other hand, you don't have to rely on timid politicians. The voters are often way out in front of politicians on marijuana reform initiatives, and with an initiative, you don't have to worry about those timid politicians tinkering with your legislation and taking all the teeth out of it," Bernath noted. "As a general rule, I think most reformers would prefer to see something passed by the voters, that gives it a lot of legitimacy."

And that's just what reformers are trying to do with medical marijuana in Michigan and marijuana decriminalization in Massachusetts this year, both of which appear poised to pass. Likewise, in California, reformers are seeking to expand and deepen Prop. 36, but they also face a pair of sentencing initiatives aimed at harsher treatment of drug offenders. And next door in Oregon, anti-crime crusaders also have a pair of initiatives aimed at punishing drug offenders -- among others.

Here's a rundown of the statewide drug reform and/or sentencing initiatives:

CALIFORNIA: It's the battle of the crime and sentencing initiatives, with Proposition 5, the Nonviolent Offender Rehabilitation Act (NORA) going up against a pair of initiatives headed in the other direction. Building on the success (and limitations) of 2002's Prop. 36, Prop. 5 would expand the number of drug offenders diverted from prison into treatment, expand prison and parole rehabilitation programs, allow inmates earlier release for participating in such programs, and cut back the length of parole. It would also decriminalize the possession of up to an ounce of marijuana. Led by the Drug Policy Alliance Southern California office, the Yes on Prop. 5 campaign has won broad support from drug treatment professionals, with the notable exception of drug court advocates. But it also faces opposition, not only from the drug court crew and the usual law enforcement suspects, but also actor Martin Sheen and several prominent newspaper editorial boards. No polls on Prop. 5's prospects have been released. See our earlier in-depth reporting on Prop. 5 here.

Proposition 6, the Safe Neighborhoods Act, is primarily aimed at gang members, violent criminals, and criminal aliens, but also includes provisions increasing penalties for methamphetamine possession, possession with intent, and distribution to be equal to those for cocaine, and provides for the expulsion from public housing of anyone convicted of a drug offense. The measure also mandates increased spending for law enforcement. Read the California League of Women Voters' analysis of Prop. 6 here.

Proposition 9, also known as the Crime Victims Bill of Rights Act, unsurprisingly is concerned mostly with "victims' rights," but also includes provisions that would block local authorities from granting early release to prisoners to alleviate overcrowding and mandates that the state fund corrections costs as much as necessary to accomplish that end. It would also lengthen the amount of time a prisoner serving a life sentence who has been denied parole must wait before re-applying. Currently, he must wait one to five years; under Prop. 9, he must wait three to 15 years. Prop. 9 would also allow parolees who have been jailed for alleged parole violations to be held 15 days instead of the current 10 before they are entitled to a hearing to determine if they can be held pending a revocation hearing, and stretches from 35 to 45 the number of days they could be held before such a hearing. These last two provisions, as well as one limiting legal counsel for parolees, all conflict with an existing federal court order governing California's procedures. Read the California League of Women Voters' analysis of Prop. 9 here.

Ironically, both "tough on crime" initiatives have received significant funding and support from Henry Nicholas, the co-founder and former CEO of Broadcom. Nicholas has reportedly contributed at least $5.9 million to the initiatives. That was before he was indicted in June on federal fraud and drug charges. His indictment alleges that he kept properties for drug parties, supplied methamphetamine and cocaine to friends and prostitutes, and spiked technology executives' drinks with Ecstasy.

MASSACHUSETTS: The Committee for Sensible Marijuana Policy is sponsoring an initiative that would decriminalize the possession of up to an ounce of marijuana. Known as Question 2 on the November ballot, the initiative builds on nearly a decade's worth of work by local activists who ran dozens of successful ballot questions directed at individual representatives. Question 2 looks like almost a sure winner; it garnered 72% support in a mid-August poll. Still, late-organizing opposition has formed, primarily from the usual suspects in law enforcement and prosecutors' offices. See our earlier analysis of Question 2 here. (Massachusetts also has medical marijuana voter questions on the ballot in four towns.)

MICHIGAN: Michigan is poised to become the first medical marijuana state in the Midwest. An initiative sponsored by the Michigan Coalition for Compassionate Care and appearing on the ballot as Proposition 1 would allow patients suffering from debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health to use marijuana with a doctor's recommendation. It would require the department to create an ID card system for qualified patients and their designated caregivers and would allow patients and caregivers to grow small amounts of marijuana indoors in a secure facility. It would also permit both registered and unregistered patients and caregivers to assert a medical necessity defense to any prosecution involving marijuana. A poll released this week showed the measure gaining the approval of 66% of voters. Read our earlier analysis of the initiative and campaign here.

OREGON: While medical marijuana activists are working on a dispensary initiative for 2010, perennial Oregon "crime fighter" Kevin Mannix is once again looking to throw more people in prison. Ballot Measure 61, "Mandatory Sentences For Drug Dealers, Identity Thieves, Burglars, And Car Thieves," is pretty self-explanatory. It would impose mandatory minimum sentences for the manufacture or delivery of cocaine, heroin, or methamphetamine of 36 months in some cases and 30 months in others. It also lays out similar mandatory minimums for the other criminal offenders listed above. Mannix originally included a provision attempting to supplant the Oregon Medical Marijuana Program, but dropped it when it became apparent it could drag down the entire initiative.

Another measure initiated by the legislature and referred to the voters, Ballot Measure 57, would also increase penalties for the sale or distribution of cocaine, heroin, methamphetamine, and Ecstasy. It sets a sentencing range of 34 months to 130 months, depending on the quantity of the drug involved. The measure would also require drug treatment for certain offenders and impose sanctions for those who resist, provide grants to local jurisdictions for jails, drug courts, and treatment services, and limit judges' ability to reduce sentences.

LOCAL INITIATIVES: In addition to the statewide initiatives mentioned above, there are also a handful of municipal initiatives on the November 4 ballot. Here they are:

BERKELEY, CALIFORNIA: In Berkeley, Measure JJ seeks to broaden and regularize medical marijuana access. Supported by the Berkeley Patients Group and at least two city council members, the measure would expand the non-residential zones where dispensaries can locate, create an oversight commission including representatives from each of the three existing collectives to promulgate standards and determine whether relocating or future operators are in compliance, issue zoning certificates by right if operators meet standards, and bring Berkeley possession limits in line with recent state court rulings determining that such limits are unconstitutional. The ballot argument in favor of the measure can be viewed at the link above; no ballot argument opposing the measure has been submitted.

FAYETTEVILLE, ARKANSAS: The local grassroots organization Sensible Fayetteville is sponsoring an initiative that would make enforcement of adult marijuana possession laws the lowest law enforcement priority. It also includes language mandating city officials to write an annual letter to their state and federal representatives notifying them of the city's position and urging them to adopt a similar one. If the measure passes, Fayetteville will become the second Arkansas community to adopt such an ordinance. Nearby Eureka Springs did so in 2007.

FERNDALE, MICHIGAN: Ferndale passed a medical marijuana initiative in 2005, but this year a shadowy group known as the National Organization for Positive Medicine has placed an initiative on the ballot that would allow for the distribution of medical marijuana, but only by the National Organization for Positive Medicine. The initiative is not affiliated with the statewide medical marijuana initiative.

HAWAII COUNTY, HAWAII: Hawaii's Big Island (Hawaii County) will be voting on an initiative making adult marijuana possession offenses the lowest law enforcement priority. Ballot Question 1 not only makes adult possession offenses the lowest priority, it would also bar county law enforcement officials from accepting federal deputization or commissions to enforce laws in conflict with the initiative, prohibits the County Council from accepting or spending funds to enforce adult marijuana possession laws, and bar the County Council from accepting any funds for the marijuana eradication program. The initiative is sponsored by Project Peaceful Sky, a local grassroots organization whose name alludes to the disruption of tranquility caused by law enforcement helicopters searching for marijuana.

Alright, potential voters, there you have it. See you at the polls November 4.