Ballot Measures

Idaho is officially not a marijuana-friendly state. Although it is bordered on most sides by medical marijuana states (Washington, Oregon, Nevada, and Montana), it so far refuses to accept the medicinal use of the herb. And even though one of those states (Washington) has legalized marijuana and two others (Nevada and Oregon) have decriminalized it, Idaho remains firmly grounded in 20th Century attitudes toward the plant. The state legislature this year took the time to approve a non-binding resolution noting its opposition to marijuana legalization.

That campaign is led by Compassionate Idaho, some of whose most stalwart and publicly visible members are Lindsey and Josh Rinehart and Sarah Caldwell. But with an incident that began while Caldwell and the Rineharts were away on a retreat, the trio are learning a harsh lesson in hardball pot politics. When they got back home, their kids were gone, and the police and child social services had them.

According to Boise Police, who released a statement on the matter as controversy grew, on April 23, they were contacted by a local school official about a child who had apparently eaten marijuana and fallen ill. Police "learned from witnesses" that the supposed marijuana supposedly came from the Rinehart residence, and, "concerned for the safety of children at the residence," they went there and found a baby sitter caring for the Rinehart and Caldwell children.

Police persuaded the baby sitter to let them search the residence and "found drug paraphernalia, items commonly used to smoke marijuana, and a quantity of a substance that appeared to be marijuana in locations inside the house accessible to the children." Police at the scene then contacted both narcotics investigators and the department's Special Victims Unit.

(Rinehart, a Multiple Sclerosis sufferer, said she indeed had medical marijuana at home, but that she had a small amount and a pipe on a dresser in her bedroom, a larger amount of trim locked away in a freezer, and some marijuana tincture in a bottle in a kitchen cabinet atop her refrigerator.)

"Based on the fact that illegal drugs and drug paraphernalia were located in an area that appeared to be commonly used by the children in the residence and the fact that one child had already become ill from ingesting what he assumed was marijuana, and the inability to contact the children's parents, detectives made the decision to contact Idaho Health and Welfare officials and place the children in imminent danger, meaning they were placed in the protective custody of the state until it can be determined they are in a safe environment," the statement said.

At this point, it is unclear whether whatever made the school child sick was marijuana. It is equally unclear that any marijuana came from the Rinehart residence. What is clear is that both the Rineharts and Sarah Campbell are up-front, in-your-face medical marijuana patients and activists, and that their children were being subjected to the tender mercies of the state.

Sarah Caldwell has had her kids returned to her -- it was not her child who is suspected of providing the suspected marijuana -- but the Rineharts are still fighting to get their kids returned.

"My sons were not involved," Caldwell said. "They were at the house the police searched, the police decided my kids were in 'imminent danger,' and it took three days to get them back."

While the two boys and the Rinehart kids were held at the same foster home, providing them with the small comfort of being with friends, Caldwell said her younger son was traumatized.

"My six-year-old is autistic," she explained. "I noticed when he came home, he started packing his favorite toys. I asked him why and he said, 'In case the police make me go away again.' He doesn't understand why," Caldwell said, her voice breaking.

While Caldwell has her children at home again, both she and the Rineharts are going to have to comply with the requirements of the child welfare system to ensure that their children can return to their old lives. But, Lindsey Rinehart said, Child Protective Services is moving more quickly than usual in her case.

Sarah Caldwell's boys are back at home now, but the Rineharts are still waiting to get theirs back.

"They seem to be expediting the process because they realize they messed up," she said. The state taking her kids wasn't doing them any favors, she added.

"My oldest son now will only talk if you ask him really specific questions, and my younger one is acting out," she said. "He is upset and argumentative; he has a hard time vocalizing things," she said of her six-year-old. "I told him I had to go to the store, and he freaked out; he didn't want me to leave him. He's reacting like I've never seen before. He was a happy kid; now he's mad and confused. He doesn't understand what's going on."

The older Rinehart son is having issues, too, she said.

"He's mad. Both of the kids have been educated about my medicine, so they know this is wrong," the multiple sclerosis sufferer explained. "They're mad that they were taken away because mommy had her medicine. I'm trying to comfort them as best as I can. They just know that somebody took them away, and now I have to explain that they have to go back to foster care tomorrow," Rinehart said, her voice trembling.

Both the Rineharts and Sarah Caldwell suspect they were set up.

"I'm the director of Compassionate Idaho.  Everybody knows who I am. I'm on the news at least once a month," said Rinehart. "We had just done the Hemp Fest in Moscow and signature-gathering in five towns. The police knew what they were looking for, and they knew where to look without anyone telling them. Those kids on the playground didn't know where to look. There were kids from several other families involved in that playground incident, but we think the police got who they wanted."

"I do think they were targeting us," Caldwell agreed. "That incident at the school was just an excuse for them to try to get us."

"This has got me fired up," Caldwell said. "They took my children to try to keep me focused on getting my kids back so I wouldn't do my activism, but I'm not going to stop."

The use of children as pawns in the marijuana culture wars is shocking and distressing, but nothing new, said Keith Stroup, founder and currently counsel for the National Organization for the Reform of Marijuana Laws (NORML).

"We get calls three or four times a week from people who have lost custody of their children because they tested positive at birth or in a situation where parents are feuding over custody," Stroup said. "One will say 'My spouse smokes marijuana and is thus not a fit parent,' and once that child welfare issue is raised, it's a totally separate matter from the criminal justice system. Even if no one is proposing to arrest the parent, this is far more damaging and destructive to the family."

That's at least in part because once child welfare has its clutches on you, it doesn't want to let go, and it typically has an attitude toward marijuana use that is reminiscent of Reefer Madness, Stroup said.

"They can require that you take parenting and drug education courses right out of the 1950s," he said. "It's a worthless routine, but you have to do it, you have to pay hundreds of dollars to do it, and you can't get your kids back until you do it. It doesn't matter how nice or good a parent you are or how well-intentioned you are, once you get caught up in this, you are in for a bad time."

NORML is doing what it can to assist the Idaho activists, Stroup said, adding some words of advice for other marijuana-using parents, especially (but not only) in places where attitudes toward the herb are hide-bound and hardened.

"If you're in a place like Idaho and you're a young parent, never smoke in front of your kids, so if that issue ever arises, you can make sure nobody can say you were smoking marijuana and kids were playing in the same room," he counseled. "You have to be able to demonstrate convincingly that you are providing a safe and secure place for your kids. In places like Idaho, you could lose custody over your kids for something many of us in many parts of the country take for granted."

Getting the kids back is only part of the problem for the Rineharts. Idaho treats even small-time pot possession seriously -- it's one of those place where people still actually do get jail time for it -- and the couple is facing possible felony charges for possessing more than an ounce of trim.

Lindsey Rinehart tabling at the Moscow Hemp Fest just days before it all went down.

All the stress isn't helping, and now, Rinehart can't have her medicine, either.

"I have prescribed meds to suppress my immune system, but those make me really sick. With cannabis, I only had to take it every other day," she explained. "Now, I have to take it every day, and it's so dangerous we have to regularly check my heart, liver, kidney, and eye function. And if I have pain, I'll have to go back to hydrocodone. I'll be going back on those meds I had been able to taper down from with cannabis."

But despite the trials and tribulations, neither the Rineharts nor Sarah Caldwell have been cowed, and their travails have energized supporters as well.

"People are really mad about this and are getting involved," said Rinehart. "We even have people reaching out to help fund Compassionate Idaho.

"People are coming out of the woodwork after hearing our kids got taken because of our activism," said Caldwell. "People are saying they want to help. Education is key here -- a lot of people here believe the Reefer Madness, but this is a non-toxic plant; it can't hurt you."

"The bigger picture is that we don't want this to happen to more families," said Rinehart.

"We're getting more calls than we ever did about child custody," Stroup reiterated. "There are still people being seriously damaged from what's left of marijuana prohibition. Few go to jail for marijuana anymore, but many lose custody of their kids. These repercussions may be more subtle, but they are not insignificant."

The Rineharts and Sarah Caldwell still have to deal with Child Protective Services, and the Rineharts are still waiting to see if they will face criminal marijuana and child endangerment charges. But in the meantime, there are 55,000 signatures to be gathered to get medical marijuana on the ballot and start changing Idaho's reactionary response to marijuana.

The bill, House Bill 3371, would legalize marijuana possession for adults 21 and over, provide for the cultivation of a small number of plants without regulation, and set up a system of taxation and regulation of marijuana commerce. It was sponsored by the Revenue Committee.

"Marijuana legalization is coming to Oregon sooner rather than later," said Anthony Johnson of New Approach Oregon, a group supporting legalization. "It makes sense to regulate marijuana like alcohol and for the legislature to take the lead on the issue and make sure sensible regulations are in place."

The only opposition to the bill at the Wednesday hearing came from the Oregon State Sheriffs' Association, which said it was concerned about drugged driving, underage use, and drug dependency.

"This act will not make the problems of marijuana abuse go away," said Washington County Sheriff Pat Garrett, speaking on behalf of the association.

Oregon became the first state in the nation to decriminalize marijuana in 1973. Last, the Measure 80 marijuana legalization initiative, poorly funded and hobbled by the mixed reputation of its proponent, Paul Stanford, managed to pull in nearly 47% of the popular vote. Activists have been discussing whether to go forward with another initiative in 2014, but if HB 3371 keeps moving, they may not have to wait that long.

Rocky Mountain National Park, Colorado

• The adult-use marijuana industry should be required to have common ownership from seed to sale. This vertical integration regulatory model means that cultivation, processing and manufacturing, and retail sales must be under common ownership.
• During the first year of licensing, only entities with valid medical marijuana licenses should be able to obtain licenses to grow, process and sell adult-use cannabis.
• A new Marijuana Enforcement Division in the Department of Revenue would be funded by General Fund revenue for the next five years and would provide the necessary regulatory oversight of all marijuana industries in Colorado.
• Refer a ballot initiative to voters this November for a 15% excise tax, with the first $40 million of excise tax proceeds going to the state’s school construction fund as outlined in Amendment 64, and a "marijuana sales tax" to create funding sources to cover the costs of regulating the industry, implementing consumer safeguards and establishing youth prevention and treatment programs.
• Only Colorado residents should be allowed to hold licenses to grow, process and sell adult-use cannabis. But sales to both residents and visitors to the state should be permitted, with stricter quantity limits for visitors.
• All types of marijuana sold from adult use cannabis retail facilities should be in child-proof packaging and have warning labels that detail tetrahydrocannabinol (THC) potency and list all pesticides, herbicides, fungicides and solvents used in cultivation or processing.

Other recommendations included not allowing pot smoking in bars or other facilities impacted by the state's anti-smoking laws, barring "open containers" of marijuana in vehicles, and requiring people with children at home to keep their marijuana gardens secure.

"This is a very comprehensive report, developed in a rapid timeframe, that lays the groundwork for the establishment of a robust regulatory framework, with adequate funding for marijuana industry oversight and enforcement, consumer protection and prevention and treatment programs for young people," said Task Force co-chair and governor's legal counsel Jack Finlaw. "The Task Force recommendations will now need to be perfected through the legislative process and rulemakings by various state agencies."

While there is some quibbling over the various recommendations and some concerns about what the legislature might do, Amendment 64 proponent (and now Marijuana Policy Project communications director) Mason Tvert said things were going pretty much as expected.

"The goal is to establish regulated retail stores that provide marijuana to adults, and we are steadily moving toward that," he said. "There are obviously lots of details to be worked out, and lots of different opinions on those details, but overall, we're moving in the direction of accomplishing our goal. There is debate over vertical integration, whether sales should be restricted to non-residents, the levels of sales tax -- these are all important issues, but overall things are going well, and we're well on our way to having a system of regulated marijuana cultivation and sales in Colorado."

Now, the Task Force recommendations are before a joint legislative committee charged with turning them into regulatory legislation. The committee had hoped to be done by the end of March, but progress has been slow, and the new deadline date is next week. If the committee meets that deadline, that will give the legislature as a whole exactly one month to craft and pass enabling legislation before the session ends.

The politicians are doing what they are supposed to do, said Tvert. There have been no real attempts to sabotage the will of the voters, and legislators are trying with good faith to implement Amendment 64.

"Generally, elected officials have been responsive," he said. "There have been some proposals for restrictions, but overall, they are moving forward to pass this. There is really nothing else they can do. For most Coloradans, this is going exactly as planned. For people in the industry, for advocates, for elected officials, there are lots of details being debated and it can feel like there's a lot of drama, but overall, everything's happening as it's supposed to."

The clock is ticking in Colorado. The voters have already voted to legalize marijuana. Either the legislature passes regulations to implement it -- and quite possibly puts anticipated taxes on the ballot, as required by state law for any new taxes -- and Colorado has legal, taxed and regulated marijuana commerce, or it simply has legal marijuana possession with no taxes and no regulations. The threat of the latter should be enough to ensure the success of the former.