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Everybody Must Get Stoned!

A wave of marijuana laws surges toward a national consensus

By Jordan Smith, Fri., March 15, 2013

Everybody Must Get Stoned!
Illustration by Craig Staggs

Three weeks ago, Allen St. Pierre ducked out of his Washington, D.C., office for a midday dentist appointment. For 22 years, St. Pierre has worked for the National Organ­iz­ation for the Reform of Marijuana Laws, or NORML, the granddaddy of pot-law reform advocacy groups; he came on board in 1991 and rose through the ranks to become executive director – a job that in recent years has become increasingly busy. And since the historic November 2012 votes in Colorado and Washington state to legalize, tax, and regulate marijuana for casual use by adults, things have been downright hectic. As of this writing, marijuana legalization measures have been filed in seven states and in the U.S. Congress; overall, legislatures in 26 states – including Texas – now have pending before them some type of marijuana-law reform measure(s).

With all the pot-law action, just finding the time to get to the dentist has become tricky – sitting in the dentist's office last month, St. Pierre fielded calls from reporters seeking comment on the news that Mary­land Democratic Delegate Curt Ander­son had just filed a bill that would, as in Colorado and Washington, legalize marijuana for recreational use and have it regulated and taxed like alcohol. St. Pierre was caught off-guard: "Nobody knew [Anderson] was going to drop a bill to legalize in Maryland," he says. NORML staffers had very recently met with Anderson, a long-time supporter of medical marijuana and marijuana decriminalization, "and he never said a word about legalization."

The point, says St. Pierre, is that right now even advocates are having a hard time keeping up with the explosion of pro-marijuana reforms being considered across the country in the wake of the Colorado and Washington votes. Ultimately, for the reformers it's an encouraging problem: In addition to the eight legalization measures currently pending, 10 states are considering decriminalization legislation, and 12 are considering various medical marijuana measures.

Whether most of the currently filed measures pass in the short term, the sheer volume of bills and the strengthening sentiments behind them signal to drug-law reformers that the days of pot prohibition are seriously numbered.

Pot Goes Mainstream

Possibly the only reform advocate not surprised by the post-November pot-bill explosion is Rob Kampia. Kampia is a politically shrewd, libertarian-minded advocate who put in a short stint at NORML before breaking off with several others in 1995 to form the Marijuana Policy Project, which has become the most influential pot advocacy group in the country. The group bankrolled the successful initiative in Colo­rado and has been the driving force behind medi-pot legalization in 18 states. Indeed, Kampia says 2013 is looking a bit like 1997, the year after California passed the country's first medi-pot law. "When California was the first state to legalize medical marijuana in 1996, there was an explosion of activity in state legislatures on medical marijuana in 1997," he recalls. "I remember that vividly because I predicted it would happen and we were completely underfunded at the time. And that's an understatement – we were working out of my bedroom." Kampia went to donors after the California vote and told them an onslaught of bills was coming; he listed the states and asked for money. He didn't get any – and all the bills failed, he recalls. "When they were introduced there was no real media coverage, no one was promoting [them], none of them passed. Everything died."

That was 16 years ago and Kampia – and his donors – have long since learned the lesson of that first go-round. "I already knew this was going to happen, so we were ready to go. If we were going to win in Colorado or Washington, we were ready for the juggernaut in the legislatures," he says. Now, he says, MPP's operation is a well-oiled machine; they draft many of the measures that lawmakers file, and they've learned how to lobby effectively, how to generate media coverage, and how to recruit and train good witnesses for committee hearings. And this year, he says, some of the dozens of filed bills "will actually get pretty good votes in committee."

Patrick Kennedy
Patrick Kennedy

Take, for example, Maine, where Portland Democratic state Rep. Diane Russell has again filed legislation, co-authored by her Republican colleague, Rep. Aaron Libby, that would legalize possession by adults of up to 2.5 ounces of pot, or six plants, and would regulate and tax cultivation and sales. The bill got out of committee last year, reported the Portland Press Herald, but was killed on the House floor. This time around, Kampia is confident the House will vote in favor of the measure – and then the bill will almost certainly die. There's been no lobbying for it in the Senate, and even if it does survive both chambers, it is unlikely the bill would be signed by the "ultra-conservative Republican governor," he says.

Still, he argues, the situation in Maine is a "win-win." "From our perspective, it's useful to work on a bill that we think is not going to pass, because we're able to raise the level of dialogue across the state, get our message into the news media, [and learn what people] like and what they don't like about the bill, which will help inform the ultimate" goal: Getting Maine's voters to pass a Colorado-style legalization initiative in 2016.

Maine is among as many as seven states – including Arizona, California, Massa­chu­setts, Montana, Oregon, and Nevada – where Kampia and others expect to see legalization measures on the ballot in 2016. (Kampia says it's likely that Alaska voters will go to the polls on pot even earlier, in a midterm initiative in 2014.) Legislator-backed reforms may ultimately pass in some states – perhaps Hawaii, where advocates say they expect pot will be legal by 2015, and perhaps Rhode Island, quite possibly the country's most progressive legislature when it comes to marijuana, says Tom Angell, chairman of Marijuana Majority. Rhode Island lawmakers have overridden vetoes of medical marijuana bills, last year decriminalized pot possession, and are now debating legalization. But in most places, for now, citizen-backed initiatives will generate most of the pot-law changes.

That's because, at least at present, lawmakers are still wary of sticking their necks out on an issue they perceive to be too sensitive politically, says Kampia. That's long been a problem for pot-law reformers, notes Angell, whose Marijuana Majority is dedicated to the notion that marijuana decriminalization and legalization are actually mainstream, majority-supported positions. That's a fact exemplified most recently in Colorado, where marijuana legalization "got more votes than President Obama did," Angell says. "That says a lot."

Still, Kampia says he doesn't mind being the one to come up with the language of the laws that would decriminalize, or legalize marijuana. "Ultimately, I think most legislators would prefer for us to deal with the problem, or the solution, so that they don't have to," he says. "I think they'd rather have a law on the books that they don't think is very good [than] stick their necks out on all this kind of stuff they worry about – stuff they shouldn't be worried about because marijuana is probably more popular than they are."

Indeed, voters in the presidential battleground state of Colorado went 51.5% for Barack Obama, 46.1% for Mitt Romney, and 55% for Amendment 64, which legalized marijuana. That kind of support for pot-law reform is increasing across the country: In Washington, pot legalization Initiative 502 earned nearly 56% of the vote, strongly outperforming the 51.5% for new Democratic Gov. Jay Inslee. In Massachusetts, pot decriminalization earned just over 63% of the vote in November, easily beating both GOP Sen. Scott Brown and his Democratic challenger Elizabeth Warren, who won with just under 54%.

In Illinois, 63% of voters say they favor medical marijuana, nearly double the current approval numbers for Gov. Pat Quinn; in Maryland, 63% of voters last year said they would favor legalizing medical marijuana, a full point more than voted for Obama in November. And in Indiana, just under 50% of voters cast ballots last year for Republican Gov. Mike Pence; a month later, 53% said they would vote in favor of decriminalizing marijuana.

Rob Kampia
Rob Kampia

Austin Dem Rep. Elliott Naishtat says he believes the pattern holds in Texas, where polls have consistently shown strong support for medi-pot reform. For the fifth time in as many sessions, Naishtat has filed a proposal that gently moves in that direction, offering seriously ill patients an affirmative defense against prosecution for marijuana possession. The bill last got a hearing in 2005, when it was heard by the House Criminal Jurisprudence Committee; since then it's been dumped in the Public Health Committee and languished without even a hearing. Naishtat, ever the optimist, is confident that this year the bill will not only get a hearing, but will make it to the House floor. Ultimately, he says, passing the measure is the right thing to do. "This is a very modest approach."

Skipping the Middleman

Of course, the growing popularity of these proposals doesn't mean the journey ahead is clear sailing. Indeed, while there could be nearly a dozen states by the end of 2016 that have legalized marijuana for use by adults, it remains illegal under federal law – regulated more strictly than cocaine or opium, and officially considered to be without any medicinal use whatsoever. Not surprisingly, there are plenty of folks who want to keep it that way. Chief among them, apparently, are eight former administrators of the Drug Enforcement Administration who have several times now written to the Obama administration in an attempt to sway the president and Department of Jus­tice to reject legalization efforts. The group's latest letter, sent to Attorney General Eric Holder on March 5, implored the feds to "nullify" the new Colorado and Washington laws. "If they don't act now, these laws will be fully implemented in a matter of months," signatory and former DEA Administrator Peter Bensinger told the Associated Press. "This is a no-brainer. It is outrageous that a lawsuit [seeking to rescind the laws] hasn't been filed in federal court yet."

While the old-guard DEA may be playing the same straightforward prohibition game that anti-pot crusaders have waged for more than seven decades, there is also a gang of newer "antis" that may prove more formidable opponents – at least in the short term. Chief among these reform foes is former U.S. Rep. Patrick Kennedy, who has had his own share of substance abuse issues and run-ins with the law. Kennedy is one of the founders of the group Smart Approaches to Marijuana. SAM's approach to fighting legalization is not to advocate tough criminal justice policies, but to argue that reform presents a serious risk to "public health." Kennedy told MSNBC earlier this year that his group favors neither "lock 'em up [nor] light 'em up," but instead chooses a third way – promoting education and public health as an answer to drug use. This may sound moderate, says Angell, but really it's old wine in new bottles. In the face of the renewed popularity of drug-law reform, opponents have simply chosen different rhetoric for the same old policies. "They've reevaluated and revamped their approach – not in terms of their policies, but in terms of how they're talking about it," Angell says. "They're doing the same thing, but talking about it differently. It's up to our movement to shed light on the disconnect between their rhetoric and their actions."

So far, the feds have had no response except to say that they're reviewing the laws in Colorado and Washington. In late November 2012, Kampia told us that MPP would like to see that review stretch throughout Obama's second term, giving the states a chance to enact their individual laws and offering the country a two-state pot legalization laboratory. Indeed, St. Pierre says that NORML and other advocates have been asked more than once by Obama's domestic team what their thoughts are on how to proceed. "Our advice to them, when they've asked, is two words: Do nothing," he says. "Zip. Zippo."

Thus far, that's exactly how things are going. Responding to the former DEA administrators' latest letter, a Holder spokesperson told the AP only that the DOJ "is in the process of reviewing those initiatives."

How the feds will proceed next is anyone's guess. But with three marijuana bills pending, and a fourth that would reauthorize farming of industrial hemp, pot's non-narcotic cousin, there's a good bet something will happen sooner rather than later. To St. Pierre, the best bet is a proposed – but, to date, not-yet-filed – measure that would create a commission to study marijuana legalization. This has happened before, most recently during the administration of President Richard Nixon, whose National Commission on Marihuana and Drug Abuse concluded in 1972 that the drug should be decriminalized. "[T]he criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use," the commission, chaired by Pennsyl­van­ia Gov. Raymond Shafer, concluded. "It implies an overwhelming indictment of the behavior which we believe is not appropriate. The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior."

St. Pierre says he has no doubt any future commission would reach at least the same conclusions as those who have come before. And offering Obama the commission route would essentially buy Colorado and Washington – and any other state readying for the 2016 ballot – the time needed to make it that much more difficult to put the genie back into the bottle.

To Kampia, the time for tiptoeing around with commissions and studies is over. The best way for the feds to proceed, he said, is simply to take action to legalize marijuana. He notes that the recommendations of the Shafer Commission were completely ignored – instead the feds have spent more than 40 years pursuing marijuana users in exactly the fashion the Commission said was unwarranted. "So let's just skip the middleman here," says Kampia, "and go right for legalization in Congress." (Indeed, Sen. Patrick Leahy, D-Vermont, has said that there will be discussion of marijuana in the Senate Judiciary Committee, which he chairs, even though no bills on the topic have yet been filed in the Senate, Kampia notes.)

Either way, says St. Pierre, time is on the side of reformers. "We're totally convinced that the science, and the will of the people, will prevail."

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