[Editor's Note: This is the first in a series of reports on the prospects for drug reform in a handful of states where the chances of legalizing marijuana are the strongest. But these reports will also look at medical marijuana, harm reduction, and sentencing reform prospects. They are a work in progress and will be revised. Look for reports on Colorado, Oregon, and Washington in coming weeks.]
California, viewed from space
But it's not just pot politics that makes the West Coast different. The region has also been a pioneer in sentencing reform and harm reduction practices, even if countervailing forces remain strong and both policy areas remain contested terrain.
And the fact that all three states are initiative and referendum states adds another dimension to the politics of drug reform. In all three states, the initiative process has been an important vehicle for drug reform, although it has also been used for anti-reform efforts, most notably with Oregon sentencing initiatives.
Will the West Coast continue to be the drug reform vanguard? Here, we look at the prospects for reform in four broad areas -- medical marijuana, marijuana legalization or decriminalization, drug sentencing reform, and the enactment of harm reduction practices -- and assess where the reform movement can most productively apply its energies. We also attempt to identify areas and issues around which larger coalitions can be formed to advance drug policy and criminal justice reform objectives.
We begin with California, the first state to legalize medical marijuana and that state where advocates last year came within a handful of percentage points of winning voter approval for pot legalization. California is the nation's most populous state and has long been at the cutting edge of social change, but now it is also faced with a monstrous $25 billion budget deficit. How social change and fiscal crisis interact in the realm of drug reform policy-making will be a key issue for advocates as they attempt to deepen existing drug reforms and introduce new ones.
Marijuana Legalization
Last year saw efforts to legalize pot both in Sacramento and at the ballot box in November. Rep. Tom Ammiano (D-San Francisco) made history when his legalization bill was approved by the Assembly Public Safety Committee, but that bill later died. Ammiano is back at it again this year, but getting a legalization bill through the legislature will be a tough fight.
The tax and regulate marijuana legalization initiative led by Oaksterdam's Richard Lee managed to put together an impressive coalition of labor, civil rights, and other groups in the run-up to the November election, but that wasn't enough to get the measure over the top. Proposition 19 scored 46.5% of the vote. Legalization advocates are already laying the groundwork for another initiative; several hundred people gathered at a sold-out California NORML (CANORML) conference in Berkeley late last month in a bid to take the first steps toward consensus among the state's complex, variegated, and often fractious marijuana community.
While Prop 19 failed to win a majority, reformers see the coalition-building that took place around it as a basic building block toward eventual victory. For the first time, pot legalization enjoyed organized support from outside the marijuana community.
"Prop 19 has opened up everything and moved marijuana legalization into the mainstream of American politics, particularly in the Western states," said Steve Gutwillig, California state director for the Drug Policy Alliance. "Its defeat was at most a speed bump, and the Prop 19 campaign process itself accelerated the marijuana reform movement. It created unprecedented mainstream media coverage, educated millions of voters, and forged a new coalition that is poised to be recreated and expanded on in California and other states in 2012," he said.
Winning a legalization vote in California means continuing to mobilize labor and civil rights groups, he said. And the stars are aligning.
"Organized labor has to be at the table of what is clearly a burgeoning industry with thousands of viable jobs from agriculture to retail. For mainstream civil rights organizations, the racial profiling that is at the center of marijuana enforcement is an issue that intersects with groups with whom they are naturally allied on other issues. We're seeing a confluence of economic and racial justice issues at a time when mainstream voters are expressing a fatigue with the drug war in general and a contempt for marijuana prohibition in particular," Gutwillig argued.
"The SEIU's endorsement of Prop 19 in California opened the door to a serious conversation with the service employee unions all across the country, said Gutwillig. "The SEIU also took a long look at the Washington initiative, but didn't think the numbers were there. But even that examination was significant. The SEIU thought the timing wasn't right last year, but all of this will be in play again and all of this represents real progress in coalition building. This conversation is taking place in a way that was unimaginable five years ago."
Gutwillig identified one more constituency reformers will be working to draw closer: the Democratic Party and its voters.
"The California Democratic Party took a neutral position, but a majority of county Democratic committees endorsed Prop 19," he noted. "That signals that there will be real conversations about what role marijuana legalization will play in terms of turnout among traditional Democratic voters."
Long-time CANORML head and veteran scene-watcher Dale Gieringer doesn't think winning outright marijuana legalization is going to be easy despite the coalition-building. Instead, he is talking about getting to the Promised Land through small steps and by broadening the existing medical marijuana system with its population of legally sanctioned adult users and providers.
Gieringer wants to down-grade minor marijuana distribution and cultivation offenses from felonies to misdemeanors, legalize private adult use, and establish a legally-regulated production system that includes manufacturing, processing, delivery, and legal sales to legally authorized users, namely anyone who has a medical marijuana recommendation.
"That would leave room for local governments to expand the universe of authorized users" without explicitly legalizing non-medicinal sale to adults, Gieringer said. "Taking on adult sales at this moment is premature, but we can write a law that opens the door to adult sales without explicitly doing it immediately."
Medical Marijuana
Using California's existing medical marijuana program as a segue to adult legalization, however, requires something the state still lacks: clarity about what is and is not allowed by Proposition 215 and the legislature's attempt to clarify it, SB 420. Some state prosecutors insist that no medical marijuana sales are legal, and the courts have yet to provide rigorous guidance. Cases have been and are being prosecuted in those counties, meaning that access to medical marijuana depends to a great extent on where one lives within California.
"Fixing the medical marijuana system has to be integral and a number one priority," said Gieringer. "We have to make changes to the medical marijuana system. The public is not happy with the current situation and would like something that is better regulated. A lot of operators feel the same way, but have differing opinions about what would be nice."
While a fix could come through the legislature, Gieringer was leery. "I can't see the legislature passing anything we would like," he said. "Given the level of support we have in Sacramento, we could probably get a bill to clearly allow medical marijuana sales, but it would also likely be loaded down with things we would find unacceptable, like 1000-foot provisions, no on-site smoking, no sale of edibles and the like," he predicted.
"They dickered around with it last year, but it was mainly about extracting money from everybody," Gieringer continued. "What's really needed is to clarify what's legal and what isn't."
Gieringer suggested that the people working on marijuana legalization initiatives include clarifying medical marijuana sales. "I think we could get something better through a vote of the people," he said. "I am hoping that medical marijuana reform will be part of the next legalization effort if there is one."
Such a strategy also has the potential of blunting opposition to a legalization initiative within the medical marijuana community. Some dispensary operators and medical marijuana patients were among the harshest critics of Prop 19.
Job protection for medical marijuana users is another area with the potential for coalition-building. State Sen. Mark Leno (D-San Francisco) has introduced a bill to prevent most employers from firing medical marijuana users who test positive for the drug. Perhaps unions, who, after all, represent workers, would be amenable to working on the issue.
Sentencing Reform
California's bloated prison system, with its insatiable, dollar-gobbling budgetary demands has seen some sentencing reform, most notably the passage by initiative of the "treatment not jail" Proposition 36. But the prisons remain full, and with no state money for the treatment end of Prop 36, it's only the law enforcement side of the equation that is fully functioning.
In announcing his budget proposal last month, Gov. Jerry Brown (D) including diverting people convicted "nonviolent, non-serious, non-sex offenses, and without any previous convictions for such offenses" to county jails instead of the state prison system. That includes first-time drug offenders.
"Governor Brown set an important tone and made it clear that our expensive state prisons should be reserved for people convicted of serious offenses, not for everyone who's ever made a mistake," said Margaret Dooley-Sammuli, DPA deputy state director for Southern California. "California is expected to save $500 million a year by handling more petty offenses, including low-level drug possession, at the county level. We think the savings would be even greater if drug treatment were made more available in the community. Under the plan, counties would have that option."
An opportunity to save big bucks and reduce the yawning budget gap could appeal to fiscal conservatives, but in California, conservatives have a long tradition of using tough on crime politics to fill the prisons. Whether they could swallow a measure that to some degree empties them remains to be seen.
"The challenge is finding fiscally conservative Republicans who are willing to publicly challenge the drug war orthodoxy that has long been a mainstay of the Republican Party," said Gutwillig. "There are plenty of Republicans who are willing to say privately they know the mass arrests and incarceration of low-level drug offenders is not a good use of scarce resources, but they have a hard time breaking ranks with a GOP leadership that still needs inflexible tough on crime rhetoric to beat up on the substantial Democratic majorities in both houses of the legislature. It's one of their main tools to undermine the Democratic reform instinct.
Still, the continuing budget crisis may allow reformers to peel off a conservative or two, Gutwillig said. "The economics of the state are in such open-ended crisis that no one can deny the reality that we can no longer afford the blank check we perpetually give to law enforcement and the corrections system."
A 2008 sentencing reform initiative, the Nonviolent Offender Rehabilitation Act (NORA) would have deepened and vastly broadened the Prop 36 reforms, but was defeated thanks to last minute attacks by prison guards and politicians. The time could be approaching for another effort on that front, either in the legislature or via the initiative process.
Harm Reduction
Access to clean needles, preventing not only heroin, but, increasingly, prescription opioid overdose deaths, and opening a safe injection site in San Francisco are some of the issues facing California's harm reduction community. As in other reform areas, the perpetual budget crisis means if anything is going to happen, it better be inexpensive.
"We can't do anything this year that costs money, so we have to be about erasing some of the rules and barriers that exist," said Hilary McQuie, Western director of the Harm Reduction Coalition. "Jerry Brown is pretty good on these issues, and we have a solidly Democratic government, so we should be able to get some of these things through as long as there is no fiscal impact."
Brown's predecessor, Gov. Arnold Schwarzenegger (R), wasn't so good on harm reduction issues. Last year, he failed to sign two bills that would have eased access to syringes. One expanded a pilot pharmacy syringe sales program statewide; the other expanded access to needle exchanges statewide.
"It looks like those bills will be reintroduced this year," said McQuie.
Overdose prevention continues to be a key harm reduction issue. Last year, a bill extending liability protection for the opioid antagonist naloxone to peer providers passed, but it only applies in a limited number of counties.
"We would like to see Naloxone made more easily available to people," said McQuie. "Maybe pharmacists could prescribe it along with opiates."
McQuie mentioned prescription opiates because that's where the action is now. And that means harm reductionists have to adapt their tactics to new clienteles. With prescription drug overdoses rising dramatically, programs aimed mainly at injection heroin users must now broaden their focus.
"Most of our overdose education happens through needle exchanges and other sites that reach injection drug users, but the trend in overdoses is toward prescription drugs," said McQuie. "We hope we can build coalitions with pharmacists, drug treatment people, and medical associations around peer intervention for overdose prevention among prescription drug users."
But coalition-building with drug and alcohol treatment providers means harm reductionists come up against abstinence-based advocates. "It is a long-term project for us to get them to recognize that they are serving people who are currently using rather than just addressing needs of people in treatment," McQuie sighed. "That will be really important for us. We need a bigger coalition in place."
And then there's the San Francisco safe injection site. At this point, it's little more than a gleam in the eye of harm reductionists, although the creation of such a site has been recommended first by the San Francisco HIV planning council and just last month by the mayor's Hepatitis C Task Force.
But given budgetary constraints, as well as morality-based opposition certain to emerge, if a safe injection site is going to happen, it's most likely to happen from the ground up. Vancouver, where drug users organized themselves and started their own safe injection site, could be a possible model, said McQuie.
"It's out on the horizon, and we're going to try," she said. "But nobody has the staff, resources, and willingness to risk their program sites and funding for this project. The way this could happen is if one of the agencies or drug user groups just starts doing it. It seems unlikely they would get prior permission."
Given the strain that existing harm reduction programs are under, maybe a new, expensive safe injection site program isn't the highest priority right now, McQuie. "But what this proposal does is open up a bigger conversation about harm reduction. Still, we need to set the stage for when the economy rebounds, and also to be prepared to step up and support whoever starts doing it."
California is fertile terrain for drug policy reform. It is also fiercely contested terrain. The coming years will tell whether the forces of reform can forge the alliances they need to emerge victorious on any number of fronts.
