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Marijuana Legalization: A marathon, but with a finish line coming in sight

History doesn’t repeat itself but sometimes it rhymes, said Mark Twain.

In many ways the outpouring of encouraging news about the “ebbing of the drug war” over the past year suggests tantalizing parallels between the present and the early 1930s, when the movement to repeal the 18th amendment prohibiting alcohol manufacturing and sales triumphed.

Reading one of the best recent histories of the period, David E. Kyvig’s Repealing National Prohibition
(2nd edition, 2000, Kent University Press)it’s hard not to be struck by passages like the one below which, (when one’s in an optimistic mood) , sound like they could be referring to the present.

“Disobedience, popular dissatisfaction and organized efforts to overturn the law, all appeared to be on the upswing,” Kyvig writes. “Various measures of public opinion, though imprecise, showed a clear turning against the liquor ban by the end of the 1920s. Several important organizations, some old, some newly established for this sole purpose, expressed their member’s hostility to prohibition and tried to translate this unhappiness into political change…Meanwhile, dry societies, whether because of complacency, altered attitudes, or several spectacular instances of leadership misbehavior, lost members.”

Kyvig reports two key statistics to illustrate this turning of the tide.

In June 1928 60% of Massachusetts voters voted to direct state senators to ask Congress to repeal the 18th amendment. In 1930 the Literary Digest reported in a survey that the percentage favoring repeal had for the first time topped 40%, double that registered a decade before.

Recent news resonates with some parallel data points.

Over the past year numerous public opinion surveys have found that support for decriminalizing or outright legalizing marijuana, which had for decades hovered consistently in the 20%-25% range, is now at or near a majority of the population.

A Zogby poll released in May this year commissioned by the conservative-leaning O’Leary Report has found 52 percent voter support for treating marijuana as a legal, taxed, regulated substance, with just 37% opposed and 11% unsure.

This followed a Zogby International survey of likely voters conducted weeks before the 2008 election which indicated “a strong belief that the anti-drug effort is failing” (89% among Obama voters and 61% among McCain voters).

In February national Rasmussen telephone survey also found Americans closely divided on the question of whether marijuana should be legalized: 40% say it should be, while 46% disagree. Fourteen percent (14%) are not sure which course is better.

Analyzing data from public opinion polling on marijuana legalization over the past three decades Nate Silver, the current uber-numerati of the political world concluded that “If the upward trend since 1990 holds (and recall my earlier caution: it might not), then legalization would achieve 60 percent support at some point in 2022 or 2023.”

On November 4 2008 a Massachusetts state referendum to decriminalize possession of small amounts of marijuana was passed by 65% of the electorate.

Kyvig’s book also notes that another augur of the turning of the tides in the battle against alcohol prohibition was the emergence of public and vocal opposition to the infamous Volstead Act by ex-law enforcement officials, even members of the Bureau of Prohibition.

Over the past few years a group called Law Enforcement Against Prohibition (LEAP), made up of current and former law enforcement professionals and state and county judges has spoken up in criticism of how the war on drugs is actually undermining law enforcement. In 2002 just under 200 law enforcement professionals launched LEAP (Law enforcement Against Prohibition) an advocacy group dedicated to calling for alternatives to drug prohibition and mobilizing opposition to federal drug war policies among local police, sheriffs, Chamber of Commerce and Rotary Clubs. In 7 years the group has grown to over Ten thousand members lobbying to change drug laws.

Last December 5 on the 75th anniversary of the repeal of alcohol prohibition, LEAP explicitly made the connection between the two eras, launching its “We Can Do it Again” campaign.

“Seventy-five years ago this week, America’s leaders had the good sense to end the failed thirteen-year policy of alcohol prohibition. Once prohibition was enshrined into the Constitution, its supporters thought it would be permanent.

The 75th anniversary of the end of alcohol prohibition is an appropriate occasion to examine the historical parallels between that failed experiment’s unintended consequences and the even farther-reaching harms of today’s drug prohibition.”

“We are in the early but unmistakable phase of an historic moment in which prohibition will be put on the defensive and revealed as unworkable, inexcusable and expendable,” LEAP predicts.

This sense of exhilarating possibilities, of being at the cusp of a proverbial “tipping point” was, and is widely shared among participants and proponents of drug law reform broadly, and marijuana legalization specifically.

Marijuana at the Tipping Point: Is a Tidal Wave of Reason About to Change Our Pot Laws?, an Alternet headline reads.

Marijuana Advocates See "Tipping Point", CBS News proclaimed in April.

Such triumphalism notwithstanding the reality is that in the current political landscape the real battle for legalization has barely begun.

A case in point is California, for decades the state where futures have tended to appear first, and since 1996, when it legalized the medical use of marijuana a national epicenter of the drive to liberalize marijuana laws. Last Spring California state representative Tom Ammiano introduced a bill., the “Marijuana Control, Regulation, and Education Act” (AB390) which would:

"Remove all penalties under California law for the cultivation, transportation, sale, purchase, possession, and use of marijuana, natural THC and paraphernalia by persons over the age of 21," "prohibit local and state law enforcement officials from enforcing federal marijuana laws.”

This is a position supported by 56% of Californians, according to a field poll conducted in April.

Though the bill was shelved for the 2009 session, it will be re-introduced in next year’s session. As of yet, however Ammiano has yet to enlist any legislative co-sponsors, and despite Democratic control of the assembly and state senate, the bill is considered a long shot for the near future.

On the federal level some promising bills have been introduced this session. One, H.R. 2943:

Personal Use of Marijuana by Responsible Adults Act of 2009, a bill ntroduced by Massachusetts Rep. Barney Frank in June, would prohibits the imposition of any penalty under an Act of Congress for the possession of under 100 grams of marijuana for personal use or for the not-for-profit transfer between adults of marijuana for personal use.

Another, H.R.2835 Medical Marijuana Patient Protection Act, also introduced by Frank, would prohibit federal interference in state-run medical marijuana programs. It would also move marijuana from a Schedule I drug to a Schedule II drug, recognizing marijuana’s medical value.

Heading into the fall session, however, neither bill is expected to have enough traction to make it out of committee, nor to generate public hearings, at least this year.

While uniformly optimistic that the dynamics of public opinion were shifting, perhaps decisively in favor of both marijuana legalization and a real end to drug war policies, advocacy groups I’ve spoken with also acknowledge that radically changing the status quo presents daunting, and unique, obstacles.

“Public opinion remains way ahead of where politicians are,” Bruce Mirken, Director of state campaigns for the Marijuana Policy Project, told me . “That’s probably been true on many big controversial issues before, but perhaps never with the kind of disconnect as on drugs.”
Paul Armentano, Deputy director of the National Organization to Repeal Marijuana Laws (NORML) agrees.

“Unfortunately on the federal level politicians by and large still don’t see the issue as an opportunity, as they should, for connecting with a majority constituency,” Armentano said. “They still see it as a liability.”

The fear factor is not without basis.

Where the prohibitionists of the early 1930s were fractured, disorganized and broke, the Drug War lobby remains well-financed and disciplined.

“There is a drug war industrial complex. Of that you can be sure,” explained Eric Sterling, Presidfent of the Criminal Justice Foundation. ‘It’s a phalanx of organizations of law enforcement groups, district attorneys, narcotics officers, prison guards and they are ferocious about spotting any reform movement as a threat to their turf. They remain a very potent political force, although they may not be as obviously, publically, present as they are in a Republican administration, but their presence is felt. Politicians don’t ever want to be seen as anti-police or unconcerned with public safety.”

Clearly any serious reform legislation can be expected to run head-on against this lobby.

In California the legalization of medical marijuana use and burgeoning push for decriminalization have galvanized a counter-revolt of narcs who clearly will not go gentle into that good night.
Last spring a "Summit on the Impact of California’s Medical Marijuana Laws," a law enforcement-only event was sponsored by the California Department of Justice, the California Police Chiefs Association (CPCA), the California Peace Officers’ Association and the California State Sheriffs’ Association, drew more than 400 attendees.
The CPCA has organized a Medical Marijuana Dispensary Task Force, designed to be a model for nationwide efforts by law enforcement, which in a White Paper outlines a panoply of ways in which law enforcement agencies can justify amped-up criminal investigation and targeting of medical marijuana distribution outlets by finding as many loopholes and pretexts in federal and state law as possible to prosecute medical marijuana operations as “fronts” for organized crime and threats to public safety.

The California Narcotics Officers’ Association helps law enforcement officials and prosecutors enforce California’s drug laws while lobbying state legislators to pass even more stringent drug laws. To do so the association employs John Lovell, a registered lobbyist who tries to persuade California legislators to toughen drug laws, such as one the state passed to require a prescription to possess pseudoephedrine, common in cold remedies and one of the building blocks of the street drug methamphetamine.

Lovell, representing a coalition of state law enforcement organizations, has been a major force behind attempts to squelch AB390 by organizing local Police Chiefs throughout the state to lobby members of the Assembly Public Safety Committee.

Among the “talking points” Lovell provides the police lobby are that:

  •   “Given the myriad public safety problems already being caused by the lawful sale of alcohol and pharmaceuticals, we fail to see the social utility to adding yet another mind altering substance to the array of lawful substances that compromise the five senses of people. The bill goes well beyond the mere legalization of so-called “licensed” marijuana. It also encourages continued expansion of the illegal marijuana market.”
  • The bill would “effectively wipes out existing prohibitions against unlawful cultivation of marijuana, as well as existing prohibitions on the sale of unlawful marijuana, including sale of marijuana to children.

Commenting on the leverage efforts such as these continue to exert, Mirken says, “Drugs are an issue where Swift Boat type lying has been the basic MO for decades. The drug war lobby has always been able to get away with saying anything. As long as it prefaced by saying “Police believe” you can say literally anything and it will likely be reported as fact.”

“Drugs are such an easy issue to demagogue, so I would not for a minute discount the ability of right-wing politicians to bring the issue back with a slew of scare tactics,” he added.

Still, much of the fear instilled by the drug-war lobby, is based less on rational cost-benefit analysis than the “Nameless, unreasoning, unjustified terror”which, as Franklin Roosevelt famously said, “paralyzes needed efforts to convert retreat and advance."

It’s amazing how many politicians we’ll talk to who’ll say, privately, ‘I’d love to feel like I could be out in favor of this, but in my district I’d get clobbered,’ Armentano said. “And then you see polls from their district and there’s majority support for decriminalization. So it’s very odd because politicians are usually so rationally pragmatic about cost-benefits in issues. But here that doesn’t hold. They have an irrational fear.”

These continuing challenges notwithstanding, Eric Sterling believes the nature of the political debate HAS changed fundamentally.

"From the vantage point of being an active participant in drug law reform efforts for 30 years. I can say there’s never been this level of optimism,” Sterling said.

What remains to be worked out is how to translate this edge into real changes in drug policy. If, and there’s every reason to believe it could be so, 2009 does indeed mark the beginning of the end of marijuana prohibition, the key word from a realpolitical point of view remains beginning.

The question is how to take the battle to the next levels.

One key to doing that is to better project marijuana decriminalization and legalization efforts as a national movement.

“As a national news story the growing support for legalization still doesn’t exist,” Sterling said. “Even though it’s simultaneously happening everywhere, media-wise it’s still portrayed as “local”, one state referendum at a time, unconnected to anything else. It’s odd. I’m old enough to remember “Proposition 13” in California in 1978. That was declared immediately as the initiation of a national wave.”

Nationally, however, the chronic problem remains that, despite breakthroughs in a myriad of often surprising locales, the legalization movement is perceived as less than the sum of its parts.

In June of this year, Armentano reminds me, Rhode Island legislators voted to override a veto by the governor on a bill that allows state-licensed dispensaries to supply patients with marijuana for medical purposes. Rhode Island Gov. Donald Carcieri had vetoed legislation allowing the state-licensed dispensaries, telling the Providence paper that “the increased availability, along with a complacent attitude, will no doubt result in increased usage, and will negatively impact the children of Rhode Island.

“Rhode Island should be receiving vastly more attention than it is,” he complained. “It’s a compelling example of how false the conventional wisdom is that politicians need to be afraid about being labeled “pro-drug”. You had a state legislature enact a law supporting the licensing and establishment of state medical marijuana dispensaries. The legislation was vetoed by a conservative law and order governor and over three-quarters of the legislators overrode the veto.”

Another key priority is closer integration of state and federal efforts in a “new federalism with teeth”.

Writing in The Stanford Progressive Ross Rufin urges this tack.

“Legalization and decriminalization advocates should focus efforts on state-wide legalization, not nation-wide,” Rufin writes. “ If states are challenged in lawsuits, than the Supreme Court will be forced to rule on whether legislation criminalizing marijuana should be struck down. This is preferable to the executive putting forward a proposal to legalize marijuana from the top down. When Obama tells the country that marijuana legalization is not the path he chooses for America, he means to say that the path must first be drawn by us.”

“At the heart of the marijuana debate is federalism,” he adds, “ the separation of state and national governmental power….The Obama administration drastically changed this dynamic with just a slight alteration of criteria for federal intervention with marijuana dispensaries. Eric Holder announced that the federal government will no longer pursue medical marijuana dispensaries or patients unless they violate both federal and state laws. In the case of California, because medical marijuana is legal, federal intervention is no longer allowed in cases where California’s medical marijuana laws are not broken. Thus, if California were to fully legalize marijuana, under current policy the federal government would not intervene.”

Related, and critical to this, is another key step, expansion of the base of the drug law reform coalition to fully reflect the majoritarian status the change position has now achieved.

“Back in the 1980s when members of Congress in both parties, even in the “progressive caucus” were to outdo one another in who scrambles to sponsor the toughest penalties and harshest law,” Sterling recalls. “The public has fundamentally crossed a threshold in that they no longer believe in the effectiveness of the drug war. The public knows the drug war is a losing effort. What they don’t know and what I think, and I’m saying this as a proud member of the decriminalization movement, is that we haven’t addressed their concerns about what happens after the Drug War’s over. We have to make the case that regulation increased safety. We have to have not just the civil liberties advocates, but that National Teacher’s union and parent’s groups advocating reform of drug laws as a public safety issue. We have to have business groups making the case that the drug war by encouraging violent crime hurts business in our cities.”

“Change on the political level,” he predicts, “ will start happening fast when politicians begin feeling like they’ll face more heat by not supporting decriminalizing them by opposing it or trying to avoid the issue.”

A key catalyst which may make that happen, Sterling believes, may be an unassuming but highly ambitious piece of legislation introduced by Senator Jim Webb in March 2009, called the National Criminal Justice Commission Act.

The bill is not specifically focused on legalizing or decriminalizing drugs. Rather its mandate would be to establishes the National Criminal Justice Commission to undertake a comprehensive review of the criminal justice system, a task involving reviewing all areas of federal and state criminal justice costs, practices, and policies;, and making specified findings relating to incarceration, prison administration, the impact of gang activity, drug policy, mental illness among prisoners and the role of the military in crime prevention.

Sterling believes the implications of passage of Webb’s bill could be profound in terms of undermining mainstream political consensus in favor of the drug war.

“By documenting the failure and social costs of the drug war a blue-ribbon committee of the type Webb seeks to bring together could finally give the imprimatur if you will for many mainstream politicians to feel like they can come out against drug war policies and even for decriminalization without falling outside the bounds of “respectability”.

Aaron Houston, MPP’s director of government relations, believes the bill, which already has 35 co-sponsors in the Senate, has a very good chance of moving before the end of 2010.

Another critical development is the creation of a long missing civil liberties caucus.

When he introduced his new bill the Personal Use of Marijuana By Responsible Adults Act of 2009 Barney Frank said "I think John Stuart Mill had it right in the 1850s when he argued that individuals should have the right to do what they want in private, so long as they don’t hurt anyone else. It’s a matter of personal liberty. Moreover, our courts are already stressed and our prisons are overcrowded. We don’t need to spend our scarce resources prosecuting people who are doing no harm to others."

Though its prospects for this year are minimal Frank’s bill, which is co-sponsored by conservative libertarian Ron Paul (R-Tx.) may be a template for a “John Stuart Mill” caucus in the house, united across conventional left-right lines by constitutionalist concerns about the erosion of the Bill of Rights enabled by the War on Drugs.

In comparison to the movement for repeal of the 18th amendment the movement for marijuana legalization has been a marathon. How much so is evident from clip from the Village Voice article from 45 years ago, Twenty-eight years after first marijuana laws spearheaded by the infamous Harry Anslinger and five years before Richard Nixon began the contemporary drug war in earnest.

“In a light drizzle on a gloomy last Sunday,” Mary Nichols wrote in the December 31, 1964 issue of the Village Voice, “a dedicated picket line marched in front of the City Department of Welfare’s headquarters on the east side of Tompkins Square Park.”

The late Allen Ginsberg, who was a participant in the march, explained: "This is the first seed demonstration in New York, the first attempt to manifest publicly in favor of a change in the law" regarding marijuana. The change the demonstrators sought was the legalization of marijuana. The signs read things like "Smoke pot — it’s cheaper and healthier than liquor," and "Repeal marijuana prohibition."

Though overturning marijuana prohibition has become a many-decade long marathon which likely still has not yet reached the proverbial last mile, a finish line is at least beginning to be visible.

When that first public demonstration ever against marijuana prohibition, organized by the Committee to Legalize Marijuana (LeMar), took place, the number of Americans who supported the sentiment probably numbered at best in the hundreds of thousands, a few percent of a population of nearly two hundred million. On the 50th anniversary of that march (December 27, 2014) it’s becoming likely legalizing marijuana will be the position of a large, possibly by then politically decisive majority, of the population.

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