The Drug Debate

If the first day of the California NORML state conference is any indication, most of the major players in Golden State marijuana law reform are lining up behind the idea of waiting until 2016 to try another legalization initiative there. They have some good reasons, but not everybody's happy with that, and some heart-rending reasons why that's the case were also on display as California marijuana activists gathered in San Francisco for day one of the two-day event.

Richard Lee's groundbreaking Proposition 19 garnered 46.5% of the vote in the 2010 off-year election, and no marijuana legalization initiative campaigns managed to make it onto the ballot last year, although several groups tried. Meanwhile, Colorado and Washington beat California to the Promised Land, becoming the first states to legalize marijuana in last November's election.

Now, California activists are eager to make their state the next to legalize, but crafty movement strategists are counseling patience -- and trying to build their forces in the meantime. The Prop 19 campaign made a strong beginning, bringing in elements of organized labor and the black and Hispanic communities, as well as dissident law enforcement voices, to help form a coalition that came close, but didn't quite make it.

As CANORML deputy director Ellen Komp reminded the audience at a Saturday morning panel on what comes next for marijuana law reform, the people behind the Proposition 19 campaign have formed the core of the California Coalition for Cannabis Policy Reform in a bid to forge unity among the state's diverse, multi-sided, and sometimes fractious marijuana community -- and to encourage new voices to join the struggle.

For the Marijuana Policy Project, California is a big prize, but only part of a broader national strategy, and one that should most likely wait for 2016, said the group's executive director, Rob Kampia, as he explained its plan to push legalization bills in state legislatures in four states (Hawaii, New Hampshire, Rhode Island, Vermont) this year and beyond, but not pushing legalization initiatives anywhere but Alaska in 2014.

MPP is envisioning a big legalization initiative push in 2016 instead, setting its sights on seven states, including California, when the presidential election pumps up the vote. (The others are Arizona, Massachusetts, Maine, Montana, Nevada, and Oregon.)

"There's a big demographic difference between 2014 and 2016," said Kampia. "If we do 2016, it's ours to lose."

The Drug Policy Alliance, another major player with access to the big-time funding that can turn an initiative into a winner, also seemed to be looking to 2016.

"It's up to us how, where, and when marijuana prohibition will end," Steve Gutwillig, a DPA deputy executive director and former California state director told the full house at the Ft. Mason Conference Center, "but the presumption is 2016, more than 2014. We need to run a unified campaign, we need to build the base and do alliance-building among people who are already convinced."

Those positions are in line with the thinking of long-time CANORML head Dale Gieringer, who has long argued that initiatives fare better in presidential election years.

Even some of the proponents of the competing initiatives from last year are, while not exactly enthusiastic about waiting for 2016, are seemingly resigned to it.

Steve Collette, who was a proponent of the Regulate Marijuana Like Wine initiative, told the Chronicle he would prefer 2014, but could get behind 2016, too, while Sebastopol attorney Omar Figueroa, coauthor of the Repeal Cannabis Prohibition Act initiative, implied in his remarks in a later panel that he, too, was resigned to waiting for 2016.

Noting the confused state of California's medical marijuana laws -- "Nobody knows what the laws are!" -- Figueroa argued for either legislative action or a 2014 medical marijuana initiative "until a legalization initiative in 2016."

Not everyone was as ready to give up on 2014 just yet. Displeased grumblings were heard in the hallways, and an earnest advocate for the Herer-ite California Cannabis Hemp Initiative 2014 took advantage of a post-panel question-and-answer opportunity to declaim in support of it.

The most powerful and visceral opposition to waiting came in the form of Daisy Bram, a mother of three young children and legal medical marijuana grower. Bram became a symbol of the cruelty of pot prohibition last year, when local authorities in rural Butte County raided her grow, seized her children and place them in foster care, and filed criminal charges against her.

Despite being counseled to comply with the demands of Child Protective Services officials in order to secure the return of her children, one of whom was quite literally torn from her arms, Bram fought back and eventually won the return of children. But just this past week, it happened again. Another raid in another county -- although led by the same investigator -- has resulted in new criminal charges and her children once again being taken by the state.

"My kids need you," she told the hushed crowd. "If it were legal, they wouldn't have my kids."

Daisy Bram doesn't want to wait until 2016 for marijuana to be legalized, she wants it yesterday, and she wants justice, and, most of all, she wants her children back in her arms. Her brief presentation at a panel Saturday afternoon was chilling, impassioned, and powerful, and visibly moved many in the audience.

[Update: CANORML reported Wednesday that at a family court appearance the previous day in her Tehama County case, the state authorities who are already seized her children seized her personal vehicle, a 2002 Ford Explorer, which they claim was the proceeds of crime.]

And while California is a state where just about anyone can get a medical marijuana card and possession of under an ounce is decriminalized, the case of Daisy Bram makes the uncomfortable point that marijuana prohibition continues to exact a real toll on real people, including the innocent. It's not just mothers labeled child abusers because the grow pot; it's also fathers denied visitation, patients thrown out of public housing, workers who must choose between their medicine and their jobs.

It's a bit easier to be sanguine about waiting until 2016 when you're not the one being bitten by those lingering vestiges of prohibition. As Komp put it when introducing Bram, until there is legalization, "there is a lot of human rights work to be done."

In the wake of the legalization victories in Colorado and Washington last November, and medical marijuana in Massachusetts, activists are talking about where the next marijuana reform campaigns should be waged and what they should attempt to do. One document that has gotten some discussion is from the Marijuana Policy Project (MPP), listing seven states where it would be working to legalize marijuana next. The list includes possible tax and regulate initiatives in Alaska, California, Maine, Massachusetts, Nevada and Oregon.

Absent from the list is one jurisdiction that would also appear ripe for a legalization initiative: Washington, DC. The nation's capital has several things going for it.

DC has the initiative process, and activists used it to great effect in passing medical marijuana with 69% of the vote in 1998 (even if, thanks to Congressional action and the glacial pace of the DC government it has taken 15 years to implement it). The District is also overwhelmingly liberal; Obama won with 91% of the vote in November.

Unlike large states like California, the District is small in size and population and would not require a huge expenditure of resources to gather enough signatures to make the ballot. Similarly, it is a relatively small media market, meaning TV advertising would be in reach of all but the most ill-funded campaign.

Last, but not least, it is the nation's capital. A successful initiative in Washington, DC, would reverberate not only around the country, but around the world, particularly an initiative that enacted legalization..

MPP may not have included the District in its "to do" list, but that doesn't mean the organization isn't watching, said the organization's director of governmental relations, Steve Fox.

"[DC] is being discussed," said Fox. "When you look at the places where an initiative would be possible, the District stands out. One reason we didn't mention it is that it’s a jurisdiction where we're not necessarily looking at tax and regulate, but there are options to do less, such as a decriminalization initiative."

The problem of congressional interference is cause for concern, though, Fox said.

"DC certainly is ripe for some kind of reform, but we also have to be cognizant of the fact that it is unique in that it has congressional oversight," Fox said. "With the medical marijuana system finally getting off the ground, we don't necessarily want to ruffle any feathers by attempting to do anything too bold. When the medical marijuana initiative passed in 1998 and Congress wanted to mess with it, they ended up having a provision something along the lines of DC not being able to spend any funds to lower or reduce penalties related to any schedule I or II substances. If Congress thought DC was going too far too fast, it could block DC from spending any money for reforms of Schedule I substances."

Doing DC would be tempting, said Fox, but again worried about moving too fast for Congress.

"There would certainly be value in passing something in the District," he mused. "You would be making a statement that a strongly Democratic-leaning jurisdiction thinks marijuana should be regulated like alcohol, but that might not be big news to a lot of people. The real impact and real value would be to actually have a regulated market in operation, and members of Congress could see that the sky isn't falling. We've waited 15 years to show Congress you can have medical marijuana dispensaries up and running and serving patients and the public good, and we want to make sure Congress has a chance to absorb that reality."

"As a longtime DC resident, I've always thought of the District as low-hanging fruit," said Allen St. Pierre, executive director of NORML, who expressed interest in an initiative. "The media market is limited, and there is an overwhelmingly liberal population. But we don't even have a NORML chapter here, and I see little impetus in the reform community."

But things are happening in the District, according to long-time activist Adam Eidinger, co-owner of the Capitol Hemp Emporium until it was forced to close under law enforcement pressure last year. Eidinger told the Chronicle that both legalization and medical marijuana activists were meeting to plot potential courses of action, including either a legalization initiative or an initiative to expand medical marijuana rights.

"We're thinking 2014," said Eidinger, "but while I think this is a no-brainer, it has to be poll tested. We're not going to go for it if it polls less than 65%. "We will poll medical as well as legalization and see what the difference is. I know some of our friends wouldn't support legalization, but would support a patients' rights initiative that would give them the right to grow limited amounts, more rights to use outside the home, and more flexibility on dispensaries. This isn't California; DC is super strict on medical marijuana, and the patients here are going to be AIDS patients and cancer sufferers."

Test polling will happen soon, he said.

Eidinger, who also runs a media consulting firm, also saw the potential for a media coup. "This is a great place to do it for the public relations value," he said.

MPP's Fox said the group was looking for a few good people.

"As MPP did in Colorado and with medical marijuana in Arkansas, what we look for are committed and competent people on the ground who are able to do this kind of work," Fox said. "We're looking to support good people. I coordinate ballot initiatives, and I'm in DC, and so are other activists. I would be happy to work with local activists to craft something."

"The symbolism alone would probably be worth it," said St. Pierre. "It probably wouldn't cost more than $15,000 or $20,000 to get it done. This is a low cost project with a huge potential upside."

If recent comments from DC elected officials are any indication, further marijuana law reform is only going to come through the initiative process. While one city council candidate, Paul Zuckerberg, is running on a platform that includes decriminalization, the mayor and other top officials have made clear they are not interested in going further.

"I'm not prepared at this stage to support the decriminalization of any drugs at this point," Mayor Vincent Gray said earlier this month. "Look at the most abused substance in our society, and it's probably alcohol. People do abuse, irrespective of whether it's legal or not."

Police Chief Cathy Lanier also expressed unease, although her comments did suggest she drew a line between marijuana and other drugs.

"I know the legalization of marijuana is in large debate around the country, whether it be medical marijuana or just straight-out legalization of marijuana. That's one issue," Lanier said. "But I think when you talk about some of these other drugs that are extremely dangerous -- PCP, for example -- to say that we should decriminalize that and just allow people to have that without any penalty in the community would just be devastating."

With the DC council unlikely to advance reform, that leaves the field open to potential initiative campaigns. The District is most likely ripe for the picking, if anyone decides to go that route.

The use of drugs should be decriminalized, with the least harmful substances regulated and sold in shops, a group of British parliamentarians said in a report released over the weekend. The All-Party Parliamentary Group on Drug Policy reform made its findings in the report Toward a Safer Drug Policy: Challenges and Opportunities Arising from 'Legal Highs'.

The report said that the 40-year-old Misuse of Drugs Act needs fundamental reform because it criminalizes young people for drug use, leaving them with reduced life prospects, while creating profits for illegal drug dealers. Instead, "low risk" drugs should be handled like cigarettes, with legal sales and warning labels, while higher risk drugs should be decriminalized, the peers found.

"The Misuse of Drugs Act is counterproductive in attempting to reduce drug addiction and other drug harms to young people," said group chair Baroness Meacher.

The group took submissions from 31 experts and organizations, including the government's Advisory Council on the Misuse of Drugs and the Association of Chief Police Officers. It called for the classification of drugs to be removed from the realm of politics and instead be based on scientific evidence.

This is the third report in recent months to call for fundamental changes in British drug policy and a move away from a prohibitionist approach to a public health one. The UK Drug Policy Commission released its Final Report in October 2012. The Home Affairs Select Committee published the findings of its Inquiry into Drugs in December 2012. All three reports make a strong case for changing British drug policy to better reduce harms posed by drugs to our population, and to take a greater consideration of evidence in doing so.

There is little sign Prime Minister Cameron is listening -- despite his own past support for legalization. Still, Cameron's ally in the governing coalition, Liberal Democrat leader Nick Clegg has been paying heed, saying he could support drug decriminalization, and that is causing tensions over drug policy at Whitehall.

The passage of marijuana legalization measures by voters in Colorado and Washington in November has sparked interest in marijuana policy like never before, and now it has sparked the formation of a new group dedicated to fighting a rearguard action to stop legalization from spreading further.

The group, Smart Approaches to Marijuana (SAM or Project SAM) has among its "leadership team" liberal former Rhode Island Democratic congressman and self-admitted oxycodone and alcohol addict Patrick Kennedy and conservative commentator David Frum. It also includes professional neo-prohibitionist Dr. Kevin Sabet and a handful of medical researchers. It describes itself as a project of the Policy Solutions Lab, a Cambridge, Massachusetts, a drug policy consulting firm headed by Sabet.

SAM emphasizes a public health approach to marijuana, but when it comes to marijuana and the law, its prescriptions are a mix of the near-reasonable and the around-the-bend. Rational marijuana policy, SAM says, precludes relying "only on the criminal justice system to address people whose only crime is smoking or possessing a small amount of marijuana" and the group calls for small-time possession to be decriminalized, but "subject to a mandatory health screening an marijuana-education program." The SAM version of decrim also includes referrals to treatment "if needed" and probation for up to a year "to prevent further drug use."

But it also calls for an end to NYPD-style "stop and frisk" busts and the expungement of arrest records for marijuana possession. SAM calls for an end to mandatory minimum sentences for marijuana cultivation or distribution, but wants those offenses to remain "misdemeanors or felonies based on the amount possessed."

For now, SAM advocates a zero-tolerance approach to marijuana and driving, saying "driving with any amount of marijuana in one's system should be at least a misdemeanor" and should result in a "mandatory health assessment, marijuana education program, and referral to treatment or social services." If a scientifically-based impairment level is established, SAM calls for driving at or above that level to be at least a misdemeanor.

Less controversially, SAM advocates for increased emphasis on education and prevention. It also calls for early screening for marijuana use and limited intervention "for those who not progressed to full marijuana addiction."

For a taste of SAM's kinder, gentler, neo-prohibitionist rhetoric, David Frum's Monday CNN column is instructive. "We don't want to lock people up for casual marijuana use -- or even stigmatize them with an arrest record," he writes. "But what we do want to do is send a clear message: Marijuana use is a bad choice."

Marijuana use may be okay for some "less vulnerable" people, Frum writes, but we're not all as good at handling modern life as he is.

"But we need to recognize that modern life is becoming steadily more dangerous for people prone to make bad choices," he argues. "At a time when they need more help than ever to climb the ladder, marijuana legalization kicks them back down the ladder. The goal of public policy should not be to punish vulnerable kids for making life-wrecking mistakes. The goal of public policy should be to protect (to the extent we can) the vulnerable from making life-wrecking mistakes in the first place."

Marijuana legalization advocates are having none of it. And they level the charge of hypocrisy in particular at Kennedy, whose family made its fortune selling alcohol. The Marijuana Policy Project (MPP) has called on Kennedy to explain why he wants to keep "an objectively less harmful alternative to alcohol illegal" and has created an online petition calling on him to offer an explanation or resign as chairman of SAM.

"Former Congressman Kennedy's proposal is the definition of hypocrisy," said MPP communications director Mason Tvert. "He is living in part off of the fortune his family made by selling alcohol while leading a campaign that makes it seem like marijuana -- an objectively less harmful product -- is the greatest threat to public health. He personally should know better."

Nor did Tvert think much of SAM's insistence that marijuana users need treatment.

"The proposal is on par with forcing every alcohol user into treatment at their own cost or at a cost to the state. In fact, it would be less logical because the science is clear that marijuana is far less toxic, less addictive, and less likely to be associated with acts of violence," Tvert said.

"If this group truly cares about public health, it should be providing the public with facts regarding the relative harms of marijuana and discouraging the use of the more harmful product," Tvert said. "Why on earth would they want keep a less harmful alternative to alcohol illegal? Former Congressman Kennedy and his organization should answer this question before calling on our government to start forcing people into treatment programs and throwing them into marijuana re-education camps."

Project SAM is out of step with current public opinion, said NORML executive director Allen St. Pierre.

"There really aren’t that many people publicly opposing marijuana law reform these days," St. Pierre noted. "The fact that a liberal like Patrick Kennedy is joining with a conservative like David Frum speaks to a mainstream disconnect. Both these guys are seen as mainstream, but three-quarters of the population support medical marijuana and decriminalization, half the country supports legalization, and we know that in two states, 55% voted for legalization. I can't speak to why they're so politically tone deaf."

"Kevin Sabet recognizes the old approach is just done for -- just saying marijuana turns you into an addict is no longer working," MPP's Tvert told the Chronicle. "This is a thinly veiled attempt to maintain marijuana prohibition by appealing to the sensibilities of people who recognize it’s a failure. They are clutching at straws. If they truly think people shouldn’t have their lives ruined for marijuana, they shouldn’t be proposing it be kept illegal."

"We are well past the epoch of the A.M. Rosenthals and the Joe Califanos," said St. Pierre, referring to ardent drug warriors of yore. "The mainstream media has moved away from the type of Reefer Madness that Frum and Kennedy are trying to engage in," he said. "Their advocacy is based on Kevin Sabet's rhetoric, and it's an extension of a failed policy. They're trying to buy time and delay marijuana law reform."

The political terrain has undergone a seismic shift with the November election results, and the rhetorical terrain has been shifting (reality not so much) away from drug war talk under the Obama administration. Now, Project SAM can join drug czar Kerlikowske is hoping talking more gently can thwart the progress of marijuana legalization.