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"Defelonization"--The Next Step in Winding Down the Drug War [FEATURE]

Thirteen states, the District of Columbia, and the federal government have already passed laws making simple drug possession a misdemeanor instead of a felony, and the momentum appears to be growing. A bill in California to do something similar has passed the legislature and is currently sitting on the governor's desk, and efforts are afoot to push a defelonization measure through the Washington legislature next year.

An overcrowded California prison (supremecourtus.gov)
Such measures are designed to ease prison overcrowding, ease pressures on budgets, and help drug users by avoiding saddling them with felony convictions. They also reflect increasing frustration with decades of drug prohibition efforts that have failed to stop drug use, but have resulted in all sorts of collateral costs.

In California alone, even after Gov. Jerry Brown's (D) prison realignment scheme, more than 4,000 people remain in state prisons on simple drug possession charges. At $47,000 per inmate per year, that comes out to more than a $200 million annual bill to state taxpayers.

Under current California law, people convicted of a drug possession felony can be sentenced to up to three years in prison. More than 10,000 people are charged with drug possession felonies each year, although many of them receive probation if convicted.

California state Sen. Mark Leno (D-San Francisco) moved to redress that situation with Senate Bill 649, which passed the legislature on the final day of the session. The bill is not a defelonization bill per se; instead, it makes drug possession a "wobbler," meaning it provides prosecutors with the flexibility to charge drug possession as either a felony or a misdemeanor.

"Our system is broken," said Lynne Lyman, California state director for the Drug Policy Alliance, which supported the bill. "Felony sentences don't reduce drug use and don't persuade users to seek treatment, but instead, impose tremendous barriers to housing, education and employment after release -- three things we know help keep people out of our criminal justice system and successfully reintegrating into their families and communities."

Even Republicans got on board with the bill, helping to get it through the Assembly earlier this year.

California state Sen. Mark Leno (wikipedia.org)
"I am proud that we got bipartisan support in the Assembly," Leno told the Chronicle.

The bill currently awaits Gov. Brown's signature, and although his signature is not required for it to become law, Leno said he believed the governor would act on it, and he urged supporters to let the governor know now that they want him to sign it.

"Anyone can go to the governor's web site and offer support through an email communication," Leno said. "I am always hopeful he will sign it."

While Californians wait for the governor to act (or not), activists and legislators in Washington are gearing up to place a defelonization bill before the legislature there next year. Sensible Washington, the activist group behind the effort, says it has lined up legislative sponsors for the bill and will pre-file in December for next year's legislative session.

State Rep. Sherry Appleton (D-Poulsbo) will be the primary sponsor of this proposal in the House. Reps. Joe Fitzgibbon (D-Burien), Jim Moeller (D-Vancouver), Jessyn Farrell (D-Seattle), and Chris Reykdal (D-Tumwater) have all signed on as official cosponsors, with more to be announced soon. Sensible Washington hopes to have a companion bill filed simultaneously in the Senate.

Under current Washington law, the possession of any controlled substance (or over 40 grams of cannabis) is an automatic felony. Under this new proposal, the possession of a controlled substance -- when not intended for distribution -- would be reduced from a felony charge, to a misdemeanor (carrying a maximum sentence of 90 days, rather than five years). Laws regarding minors would not be affected.

"Removing felony charges for simple drug possession is a smart, pragmatic approach to reducing some of the harms associated with the war on drugs," said Anthony Martinelli, Sensible Washington's communications director. "The goal is to stop labeling people as felons, filling up our prisons and ruining their lives in the process, for possessing a small amount of an illegal substance."

He elaborated in a Tuesday interview with the Chronicle.

"We support full decriminalization, like the Portuguese model, but defelonization is a big step forward, and we feel that the public and lawmakers are ready for it," he said. "We have to find a way to deal with the dangers of the war on drugs. Another reason is the massive disparity in our cannabis law -- an ounce is legal, but an ounce and a half is a felony. This would remove felonies for cannabis possession, but we don't think anyone should be hit over the head with a felony for personal drug possession."

Martinelli said Sensible Washington and its allies would be spending the next few months preparing to push the bill through the legislature.

"We will be building public and legislative support, continuing to work on garnering media attention, activating our base, and getting more lawmakers on board," he said. "We're really trying to form a bipartisan coalition and get other organizations involved as well."

One of those groups is the ACLU of Washington. Sensible Washington and the ACLU of Washington were bitter foes in the fight over the state's successful I-502 marijuana legalization initiative -- Sensible Washington opposed it as a half-measure that endangered medical marijuana, a claim that ACLU and other advocates contested -- but appear to be on the same page when it comes to this sentencing reform.

"We support the decriminalization of drug use", said Alison Holcomb, criminal justice project director for the ACLU of Washington. "We're looking forward to working in collaboration with Sensible and its allies to achieve that goal."

Martinelli said he could now announce that the proposed bill has picked up its first Senate sponsor, Sen. Jeanne Kohl-Welles (D), to add to its growing list of House sponsors. Missing from that list of House sponsors is one of the most prominent drug reformers in the House, Rep. Roger Goodman (D-Kirkland), the chairman of the House Public Safety Committee, but that's not because he opposes the idea, Goodman told the Chronicle Tuesday.

"As chair of the committee, it's important for me to be an honest broker to get legislation through," Goodman explained. "My position as chair is weakened if there is a potentially controversial issue and I'm seen as being on one side of it. It's not that I oppose it, and I certainly will hold a hearing on it and move it, but my role is more to facilitate negotiations on provisions of the bill without being an interested party," he said.

It is an idea that is certainly worth pursuing, he said.

"We need to reprioritize. The tough penalties we impose on people for merely possessing drugs is so arbitrary compared to the penalties for other offenses where there is direct physical harm perpetrated against others," Goodman said. "And by now, we all acknowledge that drug possession is not merely an indiscretion, but might be linked to behavioral health issues. Our approach should be to facilitate therapeutic interventions. We have deferred prosecution programs already, but only for alcohol. Those arrested for drug possession are not eligible because it's a felony. If we could make deferred prosecution available for drug cases, we could make much more headway on the problem," he said.

And doing so would only codify what is already often existing practices, he said.

"Many or most courts and prosecutors are already pleading down felony drug cases to misdemeanors because of budget constraints and space limitations in the jails," Goodman noted. "We can change the law to conform with that practice without an additional threat to public safety. Beyond that, we could remove the prejudicial effect of a felony conviction when it is so evident they hinder people from reintegrating into the community."

While Sensible Washington and its allies are moving full steam ahead, passing the bill could be a multi-year effort, Goodman warned.

"I anticipate prosecutors saying that if we set a certain possession threshold, drug dealers will make sure they possess no more than that amount and will play the system," he said. "We have to figure out a way to find a threshold or divide possession cases into degrees. I hear the concern, but I'm not sure what the solution is. But this is a next important phase of drug policy reform: cranking down the drug war yet one more notch and doing what's rational and fiscally responsible."

There is lots of work to be done, Goodman said.

"We'll see how this plays out in the legislature. It's probably going to need more lobbying and more background discussion among more legislators," he predicted. "So far, it's not a real prominent topic, so it might end up being a work in progress. But who knows? It might catch on fire, and we'll get a quick consensus."

Moving Toward Legal Marijuana Commerce in Washington State [FEATURE]

Voters approved the marijuana legalization initiative I-502 in Washington state last November, and it is now legal to possess up to an ounce of marijuana, but a full-blown marijuana commerce industry doesn't just happen overnight. The state is still months away from having a functioning system of state-taxed and -regulated marijuana cultivators, processors, and retailers, but the process is well underway, and by most accounts, it is going relatively smoothly.

This is how your Washington state marijuana will be labelled, according to the Liquor Control Board.
Last month, the Washington Liquor Control Board (LCB), the state agency charged with setting up the state's marijuana industry, issued its initial draft rules. It took written comments on the initial draft rules through Monday and will issue revised draft rules later this month. The LCB will hold public hearings on the rules for all three envisaged licenses -- grower, processor, and retailer -- in late July, promulgate final rules in August, begin accepting license applications in September, and begin issuing licenses in December.

From then, it is still likely to be months before the first legal marijuana is sold in Washington because only once growers are licensed will legal marijuana destined for retail sale be in the pipeline. It takes a minimum of three months to bring an indoor crop to harvest. But by sometime next spring, consumers should be able to go to their local pot shop and make their selections.

"These initial rules balance our goal of developing a tightly regulated system with reasonable access for small and large business models to participate within the system," said Board Chair Sharon Foster. "They are based upon hundreds of hours of internal research and deliberation, consultation with multiple industry experts and input from the over 3,000 individuals who attended our forums statewide."

The initial draft rules reflect the Board's stated goal of developing a tightly regulated and controlled recreational marijuana market. Included in the rules are elements that address out-of-state diversion of product, traceability of product from start to sale, youth access and other public and consumer safety concerns.

Here are some of the key elements in the initial draft rules: 

License Requirements

  • Application Window -- The application window would open for 30 days for all license types and be extended or reopened at the Board's discretion. This approach was similar to how Colorado opened its medical marijuana system.
  • Background Checks -- License applicants and financiers would be required to submit a form attesting to their criminal history, provide fingerprints, and allow criminal background checks. 
  • Point System -- The WSLCB would employ a disqualifying criminal history point system similar to liquor. An exception would be allowed for two misdemeanor convictions of possession within three years.

Public Safety

  • Producer Structures -- Producer operations would be allowed in both secure indoor grows or greenhouses.
  • Traceability -- A robust and comprehensive traceability software system will trace product from start to sale.
  • Violation Guidelines -- In addition to the $1,000 fine for certain violations established by I-502, the initial draft rules also include a strict tiered system of violation penalties over a three year period (similar to the current standard penalty guidelines for liquor).
  • Security -- The rules direct strict on-site surveillance systems similar to Colorado's current system.  
  • Advertising Restrictions -- I-502 restricts advertising within 1,000 feet of schools, public parks, transit centers, arcades, and other areas where children are present. The draft rules further restrict advertising as they pertain to children.

Consumer Safety

  • Behind the Counter Storage -- No open containers allowed.  
  • Package and Label Requirements -- Consumers will know contents and potency of products they purchase.
  • Defined Serving Size -- Serving sizes equal 10 mg of THC. Products are limited to 100 mg.
  • Lab Tested -- Uniform testing standards by independent accredited labs.

With the release of the initial draft rules, the period for written comment opened up. One of the first analyses -- not a formal comment -- came from the Henry Wykowski law firm, a San Francisco marijuana law practice that recently opened a Seattle office. Drafted by Wykowski attorney Rachel Kurtz, a longtime player in the Seattle marijuana reform scene, the analysis shined a light on some of what could be described as the rules' downsides.

"Hash will not be allowed for sale at the retail stores," the analysis noted. "According to the draft rules WAC 314-55-079, 'marijuana extracts,' such as, hash, hash oil, shatter, and wax can be infused in products sold in a marijuana retail store, but RCW 69.50.354 does not allow the sale of extracts that are not infused in products. A marijuana extract does not meet the definition of a marijuana-infused product per RCW 69.50.101."

The Wykowski analysis also warned that "fingerprinting will be required and sent to the FBI for anyone with an interest in the business being licensed, including financiers." That means anyone seeking a marijuana license is potentially incriminating oneself to the federal government, which continues to consider marijuana an illegal substance, even in states that have legalized it.

After Monday's deadline for comments passed, the LCB reported that while initial comments on the rules were relatively light, the agency received extensive written comment over the final weekend and throughout Monday from public and private organizations.

"In keeping with our goal of an open and transparent process for drafting the rules, we’re going to take an additional two weeks to consider the last-minute input we’ve received," said LCB Director Rick Garza. "The Board was prepared to issue the rules on June 19. However, it's our responsibility to carefully review and consider the comments we received."

Among those commenting were Washington NORML, the Washington Cannabis Association, Seattle City Attorney Pete Holmes, organizations with concerns about impacts on minorities, and organizations with concerns about prevention, treatment, and public health, both led by the ACLU of Washington, whose Alison Holcomb took a leave of absence to lead the I-502 campaign to victory. The comments revealed a variety of interests -- some conflicting -- and concerns from various stakeholders in the issue.

The prevention, treatment, and public health groups called for tighter restrictions on packaging, labeling, and advertising, shorter hours for retail outlets, and getting rid of the logo that features a marijuana leaf centered over an outline of the state, while the minority groups called on the LCB to ensure that their communities did not become dumping grounds for marijuana retail outlets.

"Initiative 502 was designed to achieve better health and safety outcomes for our families and communities than marijuana prohibition has," said Holcomb. "It was not intended to 'mint marijuana millionaires' who prioritize profits over public health. The goal is to improve upon our experiences with alcohol and tobacco, not repeat them."

"We supported I-502 because we were very concerned about the disproportionate enforcement of marijuana possession on African-Americans and communities of color," said Jon Gould, deputy director of the Children's Alliance, which signed onto the public health comments. "Prohibition hasn't worked, and it has had damaging effects on children and families. We think regulation would be better."

"The Board needs to remember that it is setting a standard for marijuana regulation," said University of Washington professor Roger Roffman, who also signed on to the public health comments. "We have a unique opportunity to create a system that discourages glamorization of marijuana use and encourages respect for the public's health and wellbeing. Let's not waste it."

While the public health and minority communities were concerned with restraining the marijuana marketplace, other constituencies had other concerns.

"Most of our constituents are small growers with a hundred plants or less. We argued that when it comes to growing, priority should be given to individuals who are willing to have a garden of 99 plants or less," said Kevin Oliver, executive director of Washington NORML.

"Our constituency includes two separate US Attorney districts that have disparate levels of enforcement activity. If the US Attorney's Office in the Eastern District gets wind of any marijuana operations, they shut them down. They're discussing zoning for grows the size of a football field in Seattle, and good for them, but that won't fly in eastern Washington. If they ignore the little guy, that's going to cut out anybody in eastern Washington, that's why we want them to prioritize for small growers under 99 plants."

The 99 plants number is based on federal mandatory minimum sentences that kick in at 100 plants, but is also based on the observation that federal prosecutors are unlikely to go after grows that small when there are bigger fish to fry -- and bigger punishments to hand out.

"Our concerns were very similar to most everyone else who was frustrated with the board's definition of what can be sold at retail and it's not allowing extracts like hash oil," said Kurtz, who worked with the Washington Cannabis Association in crafting its comments. "Nobody is happy about that. There are a lot of business people who were counting on that for their business model. The whole purpose of the initiative was to get rid of a black market, but by not allowing that retail, a black market will remain. We might as well actually regulate because it's going to happen regardless, but they don't seem very keen to change," she said.

"The draft regs also don't allow for outdoor grows, but I have some hope they will change that," Kurtz added . "They've heard back from a lot of people about the need for outdoor grows, including Seattle City Attorney Pete Holmes. Forcing everyone indoors increases energy consumption, and growing outdoors is less expensive."

On the upside, the LCB seems to be crafting reasonable regulations for out of state visitors and for preventing diversion, although diversion probably won't be a big issue, Kurtz said.

"This doesn't limit out of state people at all," Kurtz explained. "You can buy an ounce at a time, which is the limit of what you can legally possess."

There is no integrated system to track purchasers, so out-of-staters could theoretically go from retail outlet to retail outlet, building their stashes an ounce at a time, but that doesn't mean there will be an issue with diversion to other states, Kurtz argued.

"Economically, it just doesn't make sense," she said. "If someone from North Dakota wants to sell pot there, they could come here, but they would be paying full retail and having to go to a bunch of stores, and they wouldn't have much of a profit margin paying retail. Or they could just grow some in their basement in North Dakota."

A larger issue is diversion from cultivation sites, but Kurtz argued that a combination of security and grower self-interest should limit that.

"There is going to be a lot of recordkeeping, an electronic system where growers will have to input data daily," she said. "There are product quarantines, there are security cameras. But more importantly, people are preparing to invest a lot of money in this to have a legitimate business, not to divert pot to the black market. I've been meeting a lot of people who I don't think would risk their licenses to sell to the black market."

Washington's legal, regulated marijuana commerce is still a work in progress, but stakeholders pronounced themselves generally satisfied with the process so far.

"We are in completely new territory in terms of creating a legal marketplace and we're being very vigilant. It's too soon to tell whether this new environment is going to adequately protect youth and be an effective public health approach," said the Children Alliance's Gould.

"This has been a good public process, with lots of transparency and broad engagement. They are doing a good job in terms of being open and transparent," he continued. "What is also really apparent is the enormous amount of competition this has created, with industries and individuals looking at this as an opportunity for profit. There are choices that need to be made, and we and others are speaking up, saying we need to choose public health and kids over profiteering. If the WSLCB creates an environment based on policies designed to make this more profitable, that could have a detrimental impact on children, youth, and the public health."

"We're getting there," said Kurtz. "Eventually we will have a good system, but it may take a few years to figure itself out."

And so marijuana begins the transition from illegal drug to legal commodity in Washington state. That is, if the federal government allows it to happen. So far, the federal government has given little indication it's going to do much of anything about it, but that could change. Stay tuned.

WA
United States

Washington State Chooses Mark Kleiman Firm as Marijuana Consultant

The state of Washington has chosen its official marijuana consultant as it marches boldly forward toward implementing the voters' decision to legalize marijuana at the polls last November. The State Liquor Control Board, which is charged with overseeing the nascent legal marijuana business, announced Monday that it had selected a Massachusetts-based firm headed by academic drug policy analyst Mark Kleiman.

Mark Kleiman (ncjrs.org via wikimedia.org)
The firm, Botec Analysis Corporation, has been in existence since the mid-1980s and has won contracts to evaluate government programs and done consulting on drugs, crime, and public health. Botec advised the Office of National Drug Control Policy on demand reduction programs in the early 1990s and has studied efforts to suppress heroin dealing in Lynn, Massachusetts, among other projects.

Kleiman, a professor public policy at UCLA, has written a number of books on drug and criminal justice policy, including coauthorship of last year's primer, Marijuana Legalization: What Everyone Needs to Know. Some of his stands over the years, including the contention that states couldn't legalize marijuana because the federal government wouldn't allow it, have irked drug reformers, and some reacted with skepticism to news of the appointment.

Tom Angell, chairman of Marijuana Majority, told the Associated Press Kleiman needed to answer some questions. "You might ask him if he's either changed his mind or if he intends to advise the state on undermining the will of the voters," Angell said. Kleiman in turn responded on his blog.

The Liquor Control board sifted through more than 90 applications for the consultant position, and Botec outscored all comers. At this point, the decision is provisional; rejected applicants can challenge the selection, but if no one challenges or any such challenges fail, Botec is it.

Botec's job will be to advise the state on how build a newly legal industry from scratch. That's going to include such nuts-and-bolts issues on how many growers and retail outlets there should be, how products should be packaged, testing requirements, and even store hours of operation.

Meanwhile, all parties concerned are waiting for the federal shoe to drop. Stay tuned. This is going to be interesting.

Olympia, WA
United States

Kleiman Addresses His Prop 19 Editorial

Prof. Kleiman has responded to concerns raised over his remarks during the Prop 19 campaign in California, predicting that Prop 19 would cause prices to plummet and that the feds would have had to intervene in ways going beyond how they've dealt with the medical marijuana trade. He doesn't see that happening in Washington State; he thinks it may well happen in Colorado. He called it a "fair question."

Seattle skyline
Kleiman did not address the argument I raised in my post last night for why I doubt his analysis. I reasoned that continuing federal prohibition would have prevented Prop 19 from causing the kind of price drop from occurring in California, in the same way that the extensive medical marijuana industry hasn't seen price drops -- because it's too risky to create the industrial level grows and distribution systems that would be needed to achieve that kind of price drop -- a point raised by his coauthors during recent talks and fora.

I'm not making anything out of the fact that Kleiman hasn't addressed that point, by the way -- I don't know that he's read my post yet, and that particular point did not appear in the mainstream media articles he surely did read. Nor do I think that much should be made of it in 2013. But that's how I see that particular point, and therefore how I view that two and a half year old editorial.

I'm still cautiously optimistic, after reading the response, maybe even a little "excited" (I confess) as Kleiman wrote that he and his colleagues are feeling. Some of my colleagues have commented, and I tend to agree, that a cautious approach to implementing the Washington initiative is what will have the best chance of threading the federal needle and moving legalization forward -- especially in Washington, where the law allows for fewer licensed sales outlets and doesn't have home growing as Colorado does. And Washington or parts of it may provide our best shot at getting something resembling meaningful federal cooperation.

Some of my colleagues probably disagree with me, and many undoubtedly feel we should be wary. As a practical matter, I agree that we should be wary -- it's our responsibility as advocates to be wary, whoever the state decides to bring in. But it's also not like we get to decide who does the work on this -- our direct power to influence this ended on election day -- and I wasn't really expecting it to be someone from the all-out legalization camp.

As I wrote last night, time will tell -- about Kleiman et al's work, and about the future of I-502 and marijuana legalization in Washington State.

Location: 
WA
United States

Mark Kleiman Wins Washington Marijuana Legalization Implementation Contract

Prominent policy analyst and UCLA professor Mark Kleiman has won Washington State's consulting contract on I-502 implementation. According to Northwest Public Radio, "Washington's Liquor Control Board wants consulting help in four areas: marijuana industry knowledge, plant quality and testing, regulation, and to the extent possible, projecting how many people will use pot now that it's legal."

Mark Kleiman (ncjrs.org via Wikipedia)
Reformers have had a "love/hate" relationship with Kleiman over the years. He supports some of our issues, like marijuana legalization -- sort of. He acknowledges the impact of prohibition in increasing the harmfulness of addictive drugs to their users, but states as nearly a fact the assumption that overall harm would go up with legalization nonetheless -- while admonishing the rest of us not to make assumptions about the positive effects of even just marijuana legalization. He does pretty clearly want to make criminal justice less punishing, and wrote a book about that. Another book Kleiman's co-authored, which we've promoted on this web site and which Phil complimented in a book review, is "Marijuana Legalization: What Everyone Needs to Know." (You can order a complimentary copy from us if making a donation of $35 or more.)

A quote that caused some consternation among reformers is one he gave to the LA Times during California's 2010 Prop 19 campaign:

"There's one problem with legalizing, taxing and regulating cannabis at the state level: It can't be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can't legalize a federal felony. Therefore, any grower or seller paying California taxes on marijuana sales or filing pot-related California regulatory paperwork would be confessing, in writing, to multiple federal crimes. And that won't happen."
 

I think the quote deserves some criticism. Medical marijuana provision is also a federal felony, under the same law Kleiman cited with regard to legalization of marijuana. Kleiman's arguments in the piece -- that the feds can afford to largely ignore the medical marijuana industry only because prices remain high, and because regulation of medicine is traditionally a state matter -- are unpersuasive to me. Administrations in power during the medical marijuana years have not suggested that medical marijuana is a state matter; even Obama's inconsistently-respected "not a priority" position about going after businesses operating in compliance with state law, made clear that they can go after any medical marijuana business if they think it's in the federal interest to do so. And Kleiman or his coauthors during book talks and related fora I've attended have argued that we don't know what will happen to marijuana prices following state legalization in the face of continuing federal prohibition. One reason they've argued it might not is that federal prohibition makes it too risky to set up the very large scale growing and distribution infrastructures that are needed to bring down prices in the way that we'd predict from legalization at all governmental levels.

Still, I count myself among the optimistic when it comes to Kleiman's work for Washington State. Kleiman prefers a very non-commercial form of legalization to any big sales model. But he's also suggested the federal government allow the Washington and Colorado experiments with legalization to take place. And whatever quotes I might take issue with from time to time, Kleiman is a very serious academic who's written extensively about the issue; and he's not a drug warrior, even if his support for legalization, even of just marijuana, tends toward the tepid. I expect he'll do the best job he can on this very high profile assignment -- that assignment being to advise on the implementation of legalization, not on whether it's a good idea. (I also saw Kleiman wearing a Students for Sensible Drug Policy t-shirt at the Takoma Park Folk Festival one year. :-)) I can think of plenty of people who might have been in the running for the job, who would make me a lot more nervous than Kleiman. But time will tell.

Anyway, along with some articles linked here, CNN has pitched an interview with "Washington State's New Pot Czar" on "Erin Burnett OutFront" tomorrow (Tuesday) night. Perhaps the interview will provide some indicators of where Kleiman might go with this.

More Overreaching Arguments Against Marijuana Legalization by DEA Chiefs and the UN

Colorado billboard, 2012
The International Narcotics Control Board, a UN agency, and eight former DEA administrators came out swinging this week against marijuana legalization in Colorado and Washington. The INCB says the state laws violate UN treaties. The DEA chiefs want the Obama administration to sue to block the laws.

Both of those positions may be overreaches. It's true that federal marijuana legalization would require revision of the drug treaties, if the US is not to be in violation of them (or for the US to do what Bolivia did by withdrawing and then rejoining "with reservations"). Legalization by Congress even just within states that have enacted it is also a likely treaty issue. But Colorado and Washington aren't parties to the treaties, and federal law remains in force within those states. The states have simply ceased to contribute their own resources to a part of the prohibition program. Under our federal system they very probably have the legal right to do so.

And that is why the DEA chiefs have overreached as well. When one says that federal law is supreme in this area, it means that federal agents can use the powers they have to bring criminal or civil actions against marijuana users or sellers, despite the passage of state laws -- the Raich case decided that for medical marijuana, for reasons that would seem to apply to fully legalized marijuana too. But that doesn't mean the states have to help them. We have a federal system. As I've pointed out previously, no federal prosecutor in 16 years of state medical marijuana laws has ever argued in court that the states can't have those laws on their books. Clearly they've had incentive to do so, if they thought they could win that way.

I don't argue that we know for sure how these points will come out if they are adjudicated -- it is new legal territory. But most legal scholars seem to think a preemption ruling would be a long shot outcome. So that is how it looks to me.

[If you haven't already, please order the two recent reports, from the Cato Institute and the London School of Economics, addressing these two very issues -- available in harcopy on our web site for a small donation.]

The Top Ten Drug Policy Stories of 2012 [FEATURE]

In some ways, 2012 has been a year of dramatic, exciting change in drug policy, as the edifice of global drug prohibition appears to crumble before our eyes. In other ways it is still business as usual in the drug war. Marijuana prohibition is now mortally wounded, but there were still three-quarters of a million pot arrests last year. The American incarceration mania appears to be running its course, but drug arrests continue to outnumber any other category of criminal offense. There is a rising international clamor for a new drug paradigm, but up until now, it's just talk.

The drug prohibition paradigm is trembling, but it hasn't collapsed yet -- we are on the cusp of even more interesting times. Below, we look at the biggest drug policy stories of 2012 and peer a bit into the future:

1. Colorado and Washington Legalize Marijuana!

Voters in Colorado and Washington punched an enormous and historic hole in the wall of marijuana prohibition in November. While Alaska has for some years allowed limited legal possession in the privacy of one's home, thanks to the privacy provisions of the state constitution, the November elections marked the first time voters in any state have chosen to legalize marijuana. This is an event that has made headlines around the world, and for good reason -- it marks the repudiation of pot prohibition in the very belly of the beast.

And it isn't going away. The federal government may or may not be able to snarl efforts by the two states to tax and regulate legal marijuana commerce, but few observers think it can force them to recriminalize marijuana possession. It's now legal to possess up to an ounce in both states and to grow up to six plants in Colorado and -- barring a sudden reversal of political will in Washington or another constitutional amendment in Colorado -- it's going to stay that way. The votes in Colorado and Washington mark the beginning of the end for marijuana prohibition.

2. Nationally, Support for Marijuana Legalization Hits the Tipping Point

If Colorado and Washington are the harbingers of change, the country taken as a whole is not far behind, at least when it comes to public opinion. All year, public opinion polls have showed support for marijuana legalization hovering right around 50%, in line with last fall's Gallup poll that showed steadily climbing support for legalization and support at 50% for the first time. A Gallup poll this month showed a 2% drop in support, down to 48%, but that's within the margin of error for the poll, and it's now a downside outlier.

Four other polls released this month
demonstrate a post-election bump for legalization sentiment. Support for legalization came in at 47%, 51%, 54%, and 57%, including solid majority support in the West and Northeast. The polls also consistently find opposition to legalization strongest among older voters, while younger voters are more inclined to free the weed.

As Quinnipiac pollster Peter Brown put it after his survey came up with 51% support for legalization, "This is the first time Quinnipiac University asked this question in its national poll so there is no comparison from earlier years. It seems likely, however, that given the better than 2-1 majority among younger voters, legalization is just a matter of time."

Caravan for Peace vigil, Brownsville, Texas, August 2012
3. Global Rejection of the Drug War

International calls for alternatives to drug prohibition continued to grow ever louder this year. Building on the work of the Latin American Commission on Drugs and Democracy and the Global Commission on Drug Policy, the voices for reform took to the stage at global venues such as the Summit of the Americas in Cartagena, Colombia, in April, the International AIDS Conference in Washington in July, and at the United Nations General Assembly in September.

While calls for a new paradigm came from across the globe, including commissions in Australia and the United Kingdom, this was the year of the Latin American dissidents. With first-hand experience with the high costs of enforcing drug prohibition, regional leaders including Colombian President Santos, Guatemalan President Perez Molina, Costa Rican President Chinchilla, and even then-Mexican President Calderon all called this spring for serious discussion of alternatives to the drug war, if not outright legalization. No longer was the critique limited to former presidents.

That forced US President Obama to address the topic at the Summit of the Americas and at least acknowledge that "it is entirely legitimate to have a conversation about whether the laws in place are doing more harm than good in certain places" before dismissing legalization as a policy option. But the clamor hasn't gone away -- instead, it has only grown louder -- both at the UN in the fall and especially since two US states legalized marijuana in November.

While not involved in the regional calls for an alternative paradigm, Uruguayan President Mujica made waves with his announcement of plans to legalize the marijuana commerce there (possession was never criminalized). That effort appears at this writing to have hit a bump in the road, but the proposal and the reaction to it only added to the clamor for change.

4. Mexico's Drug War: The Poster Child for Drug Legalization

Mexico's orgy of prohibition-related violence continues unabated with its monstrous death toll somewhere north of 50,000 and perhaps as high as 100,000 during the Calderon sexenio, which ended this month. Despite all the killings, despite Calderon's strategy of targeting cartel capos, despite the massive deployment of the military, and despite the hundreds of millions of dollars in US aid for the military campaign, the flow of drugs north and guns and money south continues largely unimpeded and Mexico -- and now parts of Central America, as well -- remain in the grip of armed criminals who vie for power with the state itself.

With casualty figures now in the range of the Iraq or Afghanistan wars and public safety and security in tatters, Calderon's misbegotten drug war has become a lightning rod for critics of drug prohibition, both at home and around the world. In the international discussion of alternatives to the status quo -- and why we need them -- Mexico is exhibit #1.

And there's no sign things are going to get better any time soon. While Calderon's drug war may well have cost him and his party the presidency (and stunningly returned it to the old ruling party, the PRI, only two elections after it was driven out of office in disgrace), neither incoming Mexican President Enrique Pena Nieto nor the Obama administration are showing many signs they are willing to take the bold, decisive actions -- like ending drug prohibition -- that many serious observers on all sides of the spectrum say will be necessary to tame the cartels.

The Mexican drug wars have also sparked a vibrant and dynamic civil society movement, the Caravan for Peace and Justice, led by poet and grieving father Javier Sicilia. After crisscrossing Mexico last year, Sicilia and his fellow Mexican activists crossed the border this summer for a three-week trek across the US, where their presence drew even more attention to the terrible goings on south of the border.

5. Medical Marijuana Continues to Spread, Though the Feds Fight Back

Eighteen states and the District of Columbia have now legalized the use of marijuana for medical purposes, and while there was only one new one this year, this has been a year of back-filling. Medical marijuana dispensaries have either opened or are about to open in a number of states where it has been legal for years but delayed by slow or obstinate elected officials (Arizona, New Jersey, Washington, DC) or in states that more recently legalized it (Massachusetts).

None of the newer medical marijuana states are as wide open as California, Colorado, or Montana (until virtual repeal last year), as with each new state, the restrictions seem to grow tighter and the regulation and oversight more onerous and constricting. Perhaps that will protect them from the tender mercies of the Justice Department, which, after two years of benign neglect, changed course last year, undertaking concerted attacks on dispensaries and growers in all three states. That offensive was ongoing throughout 2012, marked by federal prosecutions and medical marijuana providers heading to federal prison in Montana. While federal prosecutions have been less resorted to in California and Colorado, federal raids and asset forfeiture threat campaigns have continued, resulting in the shuttering of dozens of dispensaries in Colorado and hundreds in California. There is no sign of a change of heart at the Justice Department, either.

6. The Number of Drug War Prisoners is Decreasing

The Bureau of Justice Statistics announced recently that the number of people in America's state and federal prisons had declined for the second year in a row at year's end 2011. The number and percentage of drug war prisoners is declining, too. A decade ago, the US had nearly half a million people behind bars on drug charges; now that number has declined to a still horrific 330,000 (not including people doing local jail time). And while a decade ago, the percentage of people imprisoned for drug charges was somewhere between 20% and 25% of all prisoners, that percentage has now dropped to 17%.

That decline is mostly attributable to sentencing reforms in the states, which, unlike the federal government, actually have to balance their budgets. Especially as economic hard times kicked in in 2008, spending scarce taxpayer resources on imprisoning nonviolent drug offenders became fiscally and politically less tenable. The passage of the Proposition 36 "three strikes" sentencing reform in California in November, which will keep people from being sentenced to up to life in prison for trivial third offenses, including drug possession, is but the latest example of the trend away from mass incarceration for drug offenses.

The federal government is the exception. While state prison populations declined last year (again), the federal prison population actually increased by 3.1%. With nearly 95,000 drug offenders doing federal time, the feds alone account for almost one-third of all drug war prisoners.

President Obama could exercise his pardon power by granting clemency to drug war prisoners, but it is so far a power he has been loathe to exercise. An excellent first candidate for presidential clemency would be Clarence Aaron, the now middle-aged black man who has spent the past two decades behind bars for his peripheral role in a cocaine deal, but activists in California and elsewhere are also calling for Obama to free some of the medical marijuana providers now languishing in federal prisons. The next few days would be the time for him to act, if he is going to act this year.

7. But the Drug War Juggernaut Keeps On Rolling, Even if Slightly Out of Breath

NYC "stop and frisk" protest of mass marijuana arrests
According to annual arrest data released this summer by the FBI, more than 1.53 million people were arrested on drug charges last year, nearly nine out of ten of them for simple possession, and nearly half of them on marijuana charges. The good news is that is a decline in drug arrests from 2010. That year, 1.64 million people were arrested on drug charges, meaning the number of overall drug arrests declined by about 110,000 last year. The number of marijuana arrests is also down, from about 850,000 in 2010 to about 750,000 last year.

But that still comes out to a drug arrest every 21 seconds and a marijuana arrest every 42 seconds, and no other single crime category generated as many arrests as drug law violations. The closest challengers were larceny (1.24 million arrests), non-aggravated assaults (1.21 million), and DWIs (1.21 million). All violent crime arrests combined totaled 535,000, or slightly more than one-third the number of drug arrests.

The war on drugs remains big business for law enforcement and prosecutors.

8. And So Does the Call to Drug Test Public Benefits Recipients

Oblivious to constitutional considerations or cost-benefit analyses, legislators (almost always Republican) in as many as 30 states introduced bills that would have mandated drug testing for welfare recipients, people receiving unemployment benefits, or, in a few cases, anyone receiving any public benefit, including Medicaid recipients. Most would have called for suspicionless drug testing, which runs into problems with that pesky Fourth Amendment requirement for a search warrant or probable cause to undertake a search, while some attempted to get around that obstacle by only requiring drug testing upon suspicion. But that suspicion could be as little as a prior drug record or admitting to drug use during intake screening.

Still, when all the dust had settled, only three states -- Georgia, Oklahoma, and Tennessee -- actually passed drug testing bills, and only Georgia's called for mandatory suspicionless drug testing of welfare recipients. Bill sponsors may have been oblivious, but other legislators and stakeholders were not. And the Georgia bill is on hold, while the state waits to see whether the federal courts will strike down the Florida welfare drug testing bill on which it is modeled. That law is currently blocked by a federal judge's temporary injunction.

It wasn't just Republicans. In West Virginia, Democratic Gov. Roy Tomblin used an executive order to impose drug testing on applicants to the state's worker training program. (This week came reports that only five of more than 500 worker tests came back positive.) And the Democratic leadership in the Congress bowed before Republican pressures and okayed giving states the right to impose drug testing requirements on some unemployment recipients in return for getting an extension of unemployment benefits.

This issue isn't going away. Legislators in several states, including Indiana, Ohio, Texas, and West Virginia have already signaled they will introduce similar bills next year, and that number is likely to increase as solons around the country return to work.

9. The US Bans New Synthetic Drugs

In July, President Obama signed a bill banning the synthetic drugs known popularly as "bath salts" and "fake weed." The bill targeted 31 specific synthetic stimulant, cannabinoid, and hallucinogenic compounds. Marketed under brand names like K2 and Spice for synthetic cannabinoids and under names like Ivory Wave, among others, for synthetic stimulants, the drugs have become increasingly popular in recent years. The drugs had previously been banned under emergency action by the DEA.

The federal ban came after more than half the states moved against the new synthetics, which have been linked to a number of side effects ranging from the inconvenient (panic attacks) to the life-threatening. States and localities continue to move against the new drugs, too.

While the federal ban demonstrates that the prohibitionist reflex is still strong, what is significant is the difficulty sponsors had in getting the bill passed. Sen. Rand Paul (R-KY) put a personal hold on the bill until mandatory minimum sentencing requirements were removed and also argued that such efforts were the proper purview of the states, not Washington. And for the first time, there were a substantial number of Congress members voting "no" on a bill to create a new drug ban.

10. Harm Reduction Advances by Fits and Starts, At Home and Abroad

Harm reduction practices -- needle exchanges, safer injection sites, and the like -- continued to expand, albeit fitfully, in both the US and around the globe. Faced with a rising number of prescription pain pill overdoses in the US -- they now outnumber auto accident fatalities -- lawmakers in a number of states have embraced "911 Good Samaritan" laws granting immunity from prosecution. Since New Mexico passed the first such law in 2007, nine others have followed. Sadly, Republican Gov. Chris Christie vetoed the New Jersey bill this year.

Similarly, the use of the opioid antagonist naloxone, which can reverse overdoses and restore normal breathing in minutes, also expanded this year. A CDC report this year that estimated it had saved 10,000 lives will only help spread the word.

There has been movement internationally as well this year, including in some unlikely places. Kenya announced in June that it was handing out 50,000 syringes to injection drug users in a bid to reduce the spread of AIDS, and Colombia announced in the fall plans to open safe consumption rooms for cocaine users in Bogota. That's still a work in progress.

Meanwhile, the UN Commission on Narcotic Drugs unanimously supported a resolution calling on the World Health Organization and other international bodies to promote measures to reduce overdose deaths, including the expanded use of naloxone; Greece announced it was embracing harm reduction measures, including handing out needles and condoms, to fight AIDS; long-awaited Canadian research called for an expansion of safe injection sites to Toronto and Ottawa; and Denmark first okayed safe injection sites in June, then announced it is proposing that heroin in pill form be made available to addicts. Denmark is one of a handful of European countries that provide maintenance doses of heroin to addicts, but to this point, the drug was only available for injection. France, too, announced it was going ahead with safe injection sites, which could be open by the time you read this.  

This has been another year of slogging through the mire, with some inspiring victories and some oh-so-hard-fought battles, not all of which we won. But after a century of global drug prohibition, the tide appears to be turning, not least here in the US, prohibition's most powerful proponent. There is a long way to go, but activists and advocates can be forgiven if they feel like they've turned a corner. Now, we can put 2012 to bed and turn our eyes to the year ahead.

The Next Seven States to Legalize Marijuana?

http://stopthedrugwar.org/files/rolling-stone-marijuana-states-map-200px.jpg
The Rolling Stone map marks medical marijuana states with a leaf/red cross icon, medical marijuana states they judge as likely to legalize with a smaller icon and green check mark, and Washington and Colorado with a leaf and smiley face.
Rolling Stone's Tim Dickinson continues his coverage of marijuana legalization with a not unjustifiably optimistic article, "The Next Seven States to Legalize Pot." Dickinson's predictions: Oregon, California, Nevada, Rhode Island, Maine, Vermont, and Alaska. Some of the states are more intuitively obvious than others, such as California, and even Oregon despite the loss. But Dickinson offers reasonable reasons to be hopeful about the others.

Oregon's Measure 80 is an interesting case. While it was reported as losing 45-55, the pro total actually crept up to 46.3% when all the returns were finally counted. This was with virtually no funding, though perhaps benefiting from discussion of the issue in neighboring Washington, and with language that was far more radical in most respects than either Washington's or Colorado's measures. With a better-written initiative and the funding that would likely attract, and with legalization happening next door as Dickinson pointed out, Oregon could be a winner soon -- if not 2014 and the expected more conservative turnout expected in an off year election, then in 2016.

Also interesting about Oregon, is that I thought the loss there while two other states passed would settle the debate over how to write an initiative -- whether to poll and do focus groups and write one that the research says can pass, or to just go for broke with the language you like -- the two initiatives that did the former won, the one that did the latter lost. But given how well Measure 80 did despite having no funding has some activists including a number of friends of mine saying that we don't have to compromise, or compromise as much, in order to win. If the funds come on board, the money and the real campaign it would enable could make up those 3.7 percentage points, is the reasoning.

I don't believe the money would make up those percentage points. I believe it is more likely that there is a swath of voters who agree with legalization in principle, but are picky about what kind of initiative they would approve, and that initiatives written the right way for them (or for the opinion leaders they take seriously like the former law enforcement and others who supported Washington's I-502) probably swung a significant percentage of voters. I think that Oregon was a special case, because of what was happening at the same time in Washington. And I think that a real campaign in Oregon, would have resulted in a greater amount of discussion about the details of the Oregon initiative (especially if polls suggested it had a chance), increasing the negative impact that certain aspects of it would have had on the aforementioned picky legalization supporters.

But do I know that for sure? No. Oregon's vote should certainly be studied to see what can be learned. So should Colorado's, a system that is pretty different from and a lot more open than Washington's. (At a Cato forum last week, former DEA chief Asa Hutchinson scarcely even mentioned Washington.)

One way or another, it is very likely that a page of history turned last month. Whether as many as seven states will go for legalization in the next few years, or whether Rolling Stone has called all the right ones, only time can tell. But the optimism is certainly appropriate -- time is on the side of marijuana legalization, and I hope for overall drug reform as well.

Slim Majority of New Yorkers Say Legalize Marijuana

A Quinnipiac poll released last Friday has New Yorkers supporting marijuana legalization by a narrow majority. The poll found 51% supported marijuana legalization, with 44% opposed.

That puts New York in line with the rest of the country, where most post-election polls are showing support for legalization at over 50%. Those polls come in the wake of victories for the Amendment 64 and Initiative 502 marijuana legalization initiatives in Colorado and Washington, respectively.

Gov. Andrew Cuomo has been pushing marijuana decriminalization, but the Quinnipiac poll suggests New Yorkers are ahead of their political leaders on the issue of marijuana reform.

New York City has achieved notoriety as the marijuana arrest capital of the world, with the NYPD arresting tens of thousands of mainly young black and brown men each year. Despite recent reforms, those numbers have yet to significantly decrease.

In a report released last month, Human Rights Watch found that between 1996 and 2011, the NYPD arrested more than 563,000 people for possession of marijuana in public (typically after police intimidate them into emptying their pockets and revealing their baggies), including nearly 100,000 in 2010 and 2011 alone. Neither Mayor Michael Bloomberg nor the NYPD "has ever provided a detailed justification for the high number of marijuana arrests, suggesting only that the arrests improve public safety," the report noted.

But the report also examined the subsequent criminal histories of the 2003 and 2004 cohorts of New York City pot possession arrestees. It found that more than 90% of them had not subsequently been arrested on a felony charge.

The Quinnipiac poll found majority support for legalization in New York City (54%) and its suburbs (50%), and a plurality (49%) for legalization upstate. Majorities supported freeing the weed in every age group except seniors, while majorities of Democrats (56%) and independents (57%) also favored legalization. Only 33% of Republicans did.

Men were more likely to support legalization (56%) than women (47%), while people with college degrees were more likely to support it (58%) than those without (47%). People who identified themselves as belonging to a religious denomination had levels of support ranging from 46% to 48%, while 70% of those who said they had no religion supported legalization.

Gov. Cuomo has been talking decriminalization. Given last month's election results and this month's polling, perhaps he should raise his sights.

The poll contacted 1,302 New York state voters between December 5 and 10 and asked"Do you think that the use of marijuana should be made legal in New York State, or not?" The poll has a margin of error of +/- 2.7 percentage points.

NY
United States

Legalization and the UN Drug Treaties -- A Minor Obstacle at Worst

I have criticized the ease with which some media outlets and even some reformers have accepted the argument made by prohibitionist advocates that courts are certain to overturn the Washington and Colorado marijuana legalization initiatives, or their regulatory systems at least, based on federal supremacy. Most legal scholars in the news have expressed skepticism that a preemption challenge of the laws, as it's called, would succeed, though we can't know for sure until and unless that goes through the courts.

Another argument that's been made is that legalization would violate US obligations as signatories to the UN's international drug control treaties, the 1961 Single Convention on Narcotic Drugs and two others. While it's not clear that state legalization existing alongside continuing federal prohibition including those states would violate the treaties, the argument is somewhat more tenable with respect to the possibilities of federal legalization or even of federal exceptions to prohibition in those states. My understanding of the treaties is that they discourage but do permit legal drug possession (given a public health system in place for addressing drug abuse), but not legal production and sales excepting medicine and research.

How easy would this to be address? Pretty easy. Bolivia did it this year. That nation has had problems with the treaty ban on coca growing, even for traditional purposes (purposes other than cocaine) as has been done in Bolivia for thousands of years. Attempts to enforce the ban through US-backed eradication programs have fomented civil instability, ultimately leading to a backlash in which a coca grower and indigenous leader, Evo Morales, won the presidency in 2006. (Shameless promotional fact: Morales's vice-president, Álvaro García Linera, spoke at our 2003 conference.)

What happened is that the Morales administration sought a modification to the Single Convention to address the coca issue, but was rebuffed. So late last year, they withdrew from it. Then they announced they would rejoin the treaty on January 1, but with "reservations" stating their non-participation with respect to the coca provision. If one third of member nations object to Bolivia's readmission to the treaty -- by the end of this year, if I'm not mistaken -- they can be prevented from rejoining it, and potentially have problems in some regulatory areas. But other countries would suffer problems from that as well, and it is unlikely.

The US could do that too. Or, and better, we could seek the revision of the treaties to permit legalization. The US would be powerful enough to pull that off, and the rest of the world is mostly concerned with their own interests and are not clamoring for the continuation of marijuana prohibition in the US in any case.

One way or another, it will be pretty easy to handle the drug treaties, once the political will exists here to enact legalization under our own laws. The treaties are a valid issue, but not a difficult one to surmount.

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