You can also stay abreast of 2012 statewide ballot initiative efforts, such as those ongoing in Colorado and elsewhere, via NORML’s Legalize 2012 Facebook page here.

Below is this week’s edition of NORML’s Weekly Legislative Round Up — where we spotlight specific examples of pending marijuana law reform legislation from around the country.

** A note to first time readers: NORML can not introduce legislation in your state. Nor can any other non-profit advocacy organization. Only your state representatives, or in some cases an individual constituent (by way of their representative; this is known as introducing legislation ‘by request’) can do so. NORML can — and does — work closely with like-minded politicians and citizens to reform marijuana laws, and lobbies on behalf of these efforts. But ultimately the most effective way — and the only way — to successfully achieve statewide marijuana law reform is for local stakeholders and citizens to become involved in the political process and to make the changes they want to see. Get active; get NORML!

ARIZONA: Legislation has been reintroduced to defelonize marijuana possession penalties in Arizona. House Bill 2044 amends state law so that the adult possession of up to one ounce of marijuana is reduced from a potential felony (punishable by 1.5 years in prison and a $150,000 fine) to a “petty offense” punishable by no more than a $500 fine. You can contact your state House member in support of this measure here.

CALIFORNIA: State lawmakers have until January 27 to act on a pair of 2011 marijuana reform measures. Assembly Bill 1017 would reduce penalties for marijuana cultivation from a mandatory felony to a “wobbler” or optional misdemeanor. Senate Bill 129 makes it unlawful “for an employer to discriminate against” persons who are authorized under state law to use medical cannabis. You can learn more about these important measures by visiting the California NORML website here. You can read my testimony in favor of SB 129 here.

INDIANA: For the first time in recent memory, legislation has been introduced to ‘decriminalize’ marijuana possession penalties in Indiana. Senate Bill 347 amends state law so that the adult possession of up to three ounces of marijuana is reduced from a potential felony (punishable by up to three years in prison and a $10,000 fine) to a noncriminal infraction. Senate Bill 347 also amends Indiana’s traffic safety code to halt the prosecution of motorists who test positive for the presence of inactive marijuana metabolites in their urine (so-called zero tolerance per se legislation) but who do not otherwise manifest any other evidence of behavioral impairment. Indianans are strongly encouraged to contact their state Senators in support of SB 347 via NORML’s ‘Take Action Center’ here.

NEW JERSEY: A coalition of lawmakers have pre-filed legislation for introduction in the 2012 session to significantly reduce penalties for those who possess personal use quantities of marijuana. Assembly Bill 1465 removes criminal penalties for the possession of 15 grams or less of marijuana (presently punishable by up to six-months in prison and a $1,000 fine) and replaces them with civil penalties punishable by no more than a $150 fine. Additional information is available from NORML NJ here or via NORML’s ‘Take Action Center’ here.

VIRGINIA: Legislation seeking to establish a joint study committee to investigate the fiscal impact of regulating the production and sale of marijuana to adults 21 and over is before the Virginia House of Delegates. To learn more about House Joint Resolution 140, please visit Virginia NORML or consider contacting your state officials here.

To be in contact with your state officials regarding these measures and other pending legislation, please visit NORML’s ‘Take Action Center’ here.

Now, according to a CBS News report, the next state on the federal government’s ‘hit list’ is Colorado — arguably the state with the most comprehensive and stringent statewide regulations governing medical cannabis activities. These regulations explicitly license state-authorized cannabis dispensaries, of which there are now some 700 operating statewide.

Nonetheless, the imprimatur of the state apparently carries little if any weight with the Obama administration at this time — despite promises (reiterated before Congress just last week by US Attorney General Eric Holder) that such prosecutions are “not a (federal) priority” and that the Justice Department only intends to target those entities who “use marijuana in a way that’s not consistent with the state statute.”

Predictably, today’s CBS special report tells a different story.

Crackdown On Colorado’s Medical Pot Business On The Horizon
via CBS News Denver

Federal authorities are planning to crack down on the medical marijuana business in Colorado on a large scale for the first time.

Warning letters will be going out to dispensaries and grow facilities near schools, CBS4 investigator Rick Sallinger has learned. So far it’s not clear how soon that will happen.

Dispensaries that receive the letters will be given 45 days to shut down or move operations. If they don’t comply, they will be shut down by the U.S. attorney in Colorado.

The dispensaries who are set to be targeted are the ones that are located within 1,000 feet of schools. That measurement is being used because that distance already appears in federal law as a factor in drug crime sentencing.

The move comes after the Justice Department sent out a memo clarifying that marijuana has been and remains illegal under federal law despite what has taken place with state regulations. Colorado is one of 16 states where medical marijuana laws have been approved.

Many of the state’s dispensaries that are closer than 1,000 feet to a school have already been approved to be there under local laws. They usually have been grandfathered in.

… Robert Corry, an attorney who represents dispensaries, said medical marijuana operations are now strictly regulated under Colorado state laws.

“The federal apparatus here has better things to do,” said Corry. “My reaction would be the federal government is essentially declaring war on the voters of our state (who) passed a Constitutional amendment.”

U.S. attorneys in California recently announced in a separate medical marijuana crackdown that they would be targeting landlords who rent retail space to dispensaries, as well as dispensary owners themselves.

Does anyone really believe that this is an appropriate use of scarce federal resources? Or that these actions are in any way consistent with Obama’s public pledge to cease utilizing “Justice Department resources to try and circumvent state laws on this issue?” I didn’t think so.

If the federal government is truly concerned about the diversion of
medical marijuana or its potential abuse in states that have authorized it then it would be better served to encourage — rather than to discourage — statewide and local efforts to regulate these actions accordingly. The Obama administration’s enforcement actions in California, Colorado, and elsewhere will only result in limiting adults’ regulated, safe access to cannabis therapy. It will also cost local jobs and needed tax revenue, and likely result in hundreds — if not thousands — of unnecessary criminal prosecutions.

Legislating medical marijuana operations and prosecuting those who act in a manner that is inconsistent with state law and voters’ sentiment should be a responsibility left to the state and local officials, not the federal government. It is time for this administration to fulfill the assurances it gave to the medical cannabis community and to respect the decisions of voters and lawmakers in states that recognize its therapeutic efficacy.

I’ve spoken to two reporters today inquiring about Colorado Congressman Jared Polis’ medical cannabis-related questions to Attorney General Holder at a congressional committee hearing that was otherwise a ‘bloodbath’ for Holder—getting grilled about the guns and Mexico fiasco—when Polis, who is not a member of the Judiciary Committee, was allowed to ask Holder two questions about medical cannabis enforcement.

Generally written…

Polis first wanted assurances that Colorado’s medical cannabis dispensaries/cultivation centers compliant with state laws—unlike California’s medical cannabis businesses that are not regulated by the state—are not a Department of Justice (DOJ) target. Holder affirmed the basic tenets of the previous Ogden and Cole memos, and wouldn’t provide assurances, but, re-iterated the DOJ stance that enforcing medical cannabis laws, notably in a state like Colorado with its rules and regulations, and with limited federal resources at hand, is a low law DOJ enforcement priority.

The second Polis question was about banking and medical cannabis businesses in Colorado, where he pushed Holder to acknowledge that the DOJ is not placing a priority on interfering with state compliant medical cannabis businesses and banking concerns.

I assume there will be news and industry coverage later today and tomorrow about this unexpected, but informative exchange between Representative Polis and Attorney General Holder.

From the majestic redwoods of Humboldt county to the glitz and glamour of Hollywood, the NORML Women’s Alliance’s Sabrina Fendrick, Kyndra Miller, Melissa Sanchez and I toured almost the entire Sunshine State for nine days prior to Thanksgiving to rally our sisters and brothers in preparation for what will be a mighty 2012 for us all in drug policy reform.

The tour began at a beach-side co-op in the company of our NORML Women’s Alliance colleague Annarae Grabstein of Steep Hill Lab. We enjoyed a brainstorming session and sunset barbecue, then prepared for the incredibly scenic drive north up to Humboldt county the next day to attend 707 Cannabis College’s Hempfest event at the Mateel Community Center in Garberville.

The panel was moderated by Terri Klemetson, News Coordinator for Redwood Community News (KMUD). Speaking were the esteemed Paul Gallegos, Humboldt County District Attorney; Mark Lovelace, Humboldt County Supervisor; Dan Rush, Director of the Medical Cannabis and Hemp Division of United Food and Commercial Workers International Union; Matt Witemyre, Chief of Staff at Medi-Cone; Alexis Wilson-Briggs, Esq., Criminal Defense Attorney/Pier 5 Law Offices and recently named San Francisco and Sacramento NORML Women’s Alliance Community Leader; Samantha Miller, President-Chief Scientist at Pure Analytics, LLC; and Paul J. Von Hartmann, Cannabis Scholar and Biodynamic Agriculturist.

The panel was very lively, and at times heated, with Wilson Briggs asking for clarification from D.A. Gallegos on many different topics, most specifically regarding enforcement tactics, difficulties reconciling state law versus the federal stance on cannabis and protecting local citizens. Overall, the energy was receptive, friendly and informative. Citizens addressed the panelists at the culmination of the event and what was most enlightening to us was how open and honest the farmers were with officials, genuinely wanting to work with the system, be respected in their industry by the government and have best practices so that they may do clean as well as successful business.

Afterward, we were treated to a tour of 707 Cannabis College with Kellie Dodds, Pearl Moon and Donna King. 707 is located in the heart of the “Emerald Triangle” where, “the highest quality education in the health benefits of appropriate cannabis use, sustainable cannabis horticulture and evolving cannabis law” is provided. We were delighted to see that the NORML Women’s Alliance has a huge presence at 707 with a permanent education access table, lots of enthusiasm and solidarity.

The next day, before heading to our evening fundraiser and screening of “A NORML Life” in San Francisco, we spent the day at the historic Pier 5 Law offices of Tony Serra, where NWA’s Kyndra Miller, Esq. has an office. Pier 5 has a long history of defending human rights and is an environment that has a strong female presence. While we were nearing the end of our workday, we were treated to a visit from the humble and sweet, Mr. Clint Werner. He stopped by with his amazing book “Marijuana: Gateway to Health”, a new release.

At the screening of Rod Pitman’s, “A NORML Life”, many NORML principals are featured in the film including Members of the Board: Dale Gieringer, Madeline Martinez, George Rohrbacher, William Panzer, Esq., Allen St. Pierre, and Keith Stroup . Tonya Davis, winner of NORML’s Pauline Sabin Award (In Honor Of And Recognition For The Crucial Need And Importance Of Women Leadership In Ending Marijuana Prohibition) was prominently featured in an inspiring narrative. Also in the house was Lynette Shaw (Marin Alliance for Medical Marijuana), Paul Armentano (Deputy Director NORML) who gave a rousing speech in support of the NWA, Ellen Komp (CANORML), Jack Rikess (Toke of the Town), NORML Attorney Matt Kumin, actress Heather Donahue of the Blair Witch Project, and many others at the forefront of reform in California. Executive Producer of the film, Mr. Pitman, gave a very entertaining free form Q&A session after the screening. The event was hosted by NORML Board member Richard Wolfe and his terrific assistant, Grynn. Catering was provided by the lovely Caitlin Martens.

The next day, we headed south to Los Angeles and the Hollywood Hills for our fundraiser, A Cause to Laugh, at The Comedy Union in Los Angeles. The event was hosted by Brooks Colyar and comedienne Simply Cookie emceed. In the house was Co-Founder and Director of Unconventional Foundation for Autism, Ms. Mieko Hester-Perez, well known also as Joey’s Mom. We want to thank everyone who participated in making this event amazing, especially Enss Mitchell, purveyor of the Comedy Union for believing in the NWA and providing valuable insight to achieve our goals for all demographics. Also, special thanks to Cheri Sicard for volunteering, as well as Kandice Hawes (OCNORML) for attending with friends.

It’s really quite difficult to summarize the trip into words but Melissa Sanchez was able to really encapsulate the energy of what we experienced during our whirlwind tour. She explained that, “from the people of Humboldt – people with so much heart living in the beautiful old forest – to the people of San Francisco who are dedicated to the never-ending work of politics and activism to Los Angeles where we were reaching out to a community who knows all about the real impact of the war on drugs, it was inspirational journey. Our movement is large and encompasses people who are not yet active in it: People whose families are affected by the drug war in Latin America, mothers who are patients but can’t speak out because they are afraid of the state taking their children, seniors who are fed up with taking medicine that may end up hurting them instead of healing them, and many others. The NORML Women’s Alliance is here to help bring more people into the movement. The more diverse and broad our movement, the sooner we will see significant change.”

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If you too believe in a better and safer world, please consider making a tax-deductible contribution to the NORML Women’s Alliance today. Thank you so much for your financial and moral support.

*Obligatory, because starting at 10PM (eastern) on December 1st is the Discovery Channel’s Weed Wars, a new series that looks at the fine legal line between compassion and big commerce regarding California’s medical cannabis industry.

Contrastingly, Discovery Channel is also premiering that same week a new series called Moonshiners.

Video streaming by Ustream
The NORML attorneys allege the federal government has engaged in entrapment of California patients and their caregivers.  They point to the courts’ dismissal of County of Santa Cruz, WAMM et al. v. Eric Holder et al. where the Department of Justice (DOJ) “promised a federal judge that it had changed its policy toward the enforcement of its federal drug laws relative to California medical cannabis patients.”  So after 2009, California providers had reason to believe that the federal government had changed its policy.  The legal argument is called ‘judicial estoppel’, which basically means that courts can’t hold true to a fact in one case and then disregard it in another.

Kumin, Michael, and Silber also argue the government has engaged in ‘equitable estoppel’, which most people commonly think of as ‘entrapment’.  That is to say, you can’t bust a person for committing a crime when the authorities told him it wasn’t a crime to do it!

Under established principles of estoppel and particularly in the context of the defense of estoppel by entrapment, defendants to a criminal action are protected and should not be prosecuted if they have reasonably relied on statements from the government indicating that their conduct is not unlawful. That principle should be applied to potential defendants as well, the plaintiffs in this action.  Such parties, courts have noted, are “person[s] sincerely desirous of obeying the law”. They “accepted the information as true and [were]…not on notice to make further inquiries.” U.S. v. Weitzenhoff, 1 F. 3d 1523, 1534 (9th Cir. 1993).

The US Constitution figures prominently in the legal challenge as well.  The 9th Amendment says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The NORML attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to “consult with their doctors about their bodies and health.”

The 10th Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The NORML attorneys argue that the States have the “primary plenary power to protect the health of its citizens” and since the government has recognized and not attempted to stop Colorado’s state-run medical marijuana dispensary program, it cannot suggest Colorado has a state’s right that California does not.

The 14th Amendment says that all citizens have equal protection under the law.  The NORML attorneys argue that the federal government:

1. Actively provides cannabis for medical purposes to individuals through its own IND program.
2. Actively allows patients in Colorado to access medical cannabis through a state-licensing system that allows individuals to make profit from the sales of medical cannabis.
3. Actively restricts scientific research into the medical value and use of cannabis to alleviate human suffering and pain.

Thus, according to Kumin, Michael, and Silber, the government can’t be allowing Colorado medical marijuana commerce, engaging it its own IND program that mails 300 joints a month to four federal medical marijuana patients yet squelching all attempts to study medical value of marijuana, then have a rational basis for shutting down medical marijuana dispensaries in California.  Under the 14th Amendment, the feds can’t treat Californians differently than Coloradoans and differently than four US citizens who get legal federal medical marijuana.

Finally, while acknowledging that Raich v. Gonzales 545 US 1 (2005) set the precedent that the Constitution’s Interstate Commerce Clause does allow the feds to prosecute California’s medical marijuana, the NORML attorneys argue:

…it is still difficult to imagine that marijuana grown only in California, pursuant to California State law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate.

We will keep you posted on all updates related to this groundbreaking lawsuit.  Archive of our interview with the lead attorneys in this case is available in our “Audio/Video” section on The NORML Network.

Click here to join NORML today and help us in the fight to legalize marijuana.

The group plans on using a variety of legal theories including the 9th and 10th Amendments, equal protection and due process, and collateral estoppel in their case. NORML’s Deputy Director Paul Armentano has also personally filed a declaration in this suit, which will be raised in each of the four federal districts in California.

NORML will have a more in-depth look at the suit later today when it is formally announced.

NORML's Chart of Legalization Polls - data compiled by Russ Belville from various organizations asking a form of the question "Should marijuana be legalized in America?" (click graphic for full-sized version)

The successes of Prop 215 are well documented.  Two years following its passage, the rest of the West Coast and Alaska passed their own medical marijuana initiatives, with close to equal (OR 55%) or greater (WA 59% & AK 58%) support than California voters gave Prop 215.

The next decade saw twelve more states and the District of Columbia passing medical marijuana laws, with seven of those states doing so through the legislature.  Five of the citizen initiatives topped 60% support.  As states passed medical marijuana, some added more conditions for qualification, some legislated dispensary operations, and the most recent have instituted protections for the rights of patients to drive, work, have a home, get an organ transplant, and raise their kids.  In some ways, medical marijuana has improved in fifteen years.

In the 21st Century, medical marijuana support has flatlined and support for legalization of marijuana has almost doubled.

But a closer examination reveals a reform strategy that has stalled out and may even be in decline.  The last election saw Oregon fail to pass a dispensary measure for the second time with about the same support after six years.  South Dakota defeated medical marijuana with only 36% support, a drop of 12 points since they tried in 2006.  Arizona only barely passed medical marijuana with 50.13% support, when they had previously seen 65% in 1996 and 64% in a 1998 referendum (both 1990′s Arizona Acts were invalidated.)

Indeed, the national polls show a stalling on the medical marijuana issue as well.  When Gallup asked about support for medical marijuana and legalized marijuana in 1999, support was 73% and 29%, respectively.  We assume that someone who supports legalization for healthy people probably supports legalization for sick people, too, so that means 44% of those polled only support medical marijuana, not legalization.  But in the latest 2011 poll, legalization support has hit 50% while in the 2010 poll, medical support had dropped to 70%, down 8 points since 2005.  How has the support for legalization doubled (25% to 50%) since Prop 215 while support for making a medical exception to criminal marijuana has flatlined?

Your Bill of Rights does not fully apply in the shaded states

We’ve seen how courts, legislatures, and law enforcement have supported medical exceptions – by trying to make those exceptions as narrow and costly as possible.  No state followed California’s lead in making marijuana available by doctor’s recommendation for “any other illness for which marijuana provides relief”, instead crafting strict condition lists and patient registries.  The West Coast standard of a dozen or more home-grown plants became 3-6 plants or no home growing at all.  The precedent of a half-pound or more of usable medicine became 1 or 2 ounces, tracked to the gram and filmed at all times.  Courts all across the Ninth Circuit have ruled that medical marijuana use does not protect patients from job discrimination and patients still experience housing, child custody, and medical procedure discrimination on a daily basis.

Medical marijuana laws have become stricter since California's Prop 215

Oregon legislators proclaimed the medical marijuana program rife with abuse on the sole evidence that 50,000 patients had signed on, so they doubled the mandatory registry fee (up to ten times greater if you’re poor and previously got a discounted fee) to reduce the medical marijuana registry numbers.  Oregon sheriffs are in agreement with the ATF that patients have no Second Amendment rights.  Colorado legislators passed a series of medical marijuana business regulations making it more difficult and expensive to operate a dispensary than a liquor store and impossible to be a personal caregiver who just supplies marijuana to a patient.  Montana outright repealed medical marijuana, saved only by a governor’s veto, only to enact new strict regulations to decimate (literally) the medical marijuana program.  California localities continue to restrict dispensary operations.  Washington’s governor vetoed a dispensary measure.  Arizona’s governor is stonewalling implementation of dispensaries.  Alaska, Maine, Nevada, and Vermont still have fewer than 1,000 protected patients.  New Jersey and District of Columbia leaders are dragging their feet and haven’t implemented their programs yet.

What don't we have on site? Spell check.

The basis of medical marijuana restrictions and discrimination depends on a federal Schedule I designation that defines the use of cannabis by healthy people a criminal act.  These restrictions, dropping poll numbers, and failing medical marijuana initiatives indicate a substantial portion of Americans that believe “compassionate use” is a ruse (I wonder what gave them that idea?).

I believe that there are three basic stands on medical marijuana among the voters not personally invested in the issue:

1. The people who believe pot smoking is evil and will never support anyone using it for any reason (“prohibitionists”).
2. The people who believe pot smoking is evil, but letting cancer and AIDS patients suffer is more evil (“medicalizers”).
3. The people who don’t believe pot smoking is evil and would allow any adult to use it (“legalizers”).

If there are 1.5 million pot smokers protected from arrest by medical marijuana laws, why have marijuana arrests continued to climb?

The prohibitionists will never support medical marijuana and the legalizers have always supported medical marijuana.  So the fate of any medical marijuana proposal rests on whether a coalition of legalizers and medicalizers can form a majority.  Over the past fifteen years, forming that majority has required more restrictive definitions of medical marijuana to assuage the medicalizers who increasingly think evil pot smokers are getting through the loopholes.  Worse, forming that coalition requires legalizers to tacitly agree that healthy pot smoking is evil.

When medical marijuana began in the Nineties, the rallying cry was “If there’s going to be a ‘War on Drugs’, let’s get the sick and dying off the battlefield.”  If that’s the case, why do we continue to see a rise in “casualties” on the battlefield?  Even in medical marijuana states, annual arrests of cannabis consumers continue to rise.  All medical marijuana has done for marijuana convicts is improve their population’s average level of health in sixteen states.

It's time to stand up for healthy marijuana users

Medical marijuana started a revitalization of marijuana activism.  But I believe it has reached a point where any future medical marijuana laws will have to be increasingly restrictive.  And the near future holds DEA rescheduling of plant THC for use by Big Pharma in devices that will provide all the medical relief without the “high”, which will cleave some of the medicalizers away from further reforms.  We’ve gotten to a point in time where half as many people only support “medical legalization” over a decade and support of legalization for all adults now outnumbers opposition for the first time.

This is not to argue that we give up on medical marijuana campaigns.  It is to argue that the campaigns need to be re-framed away from “Oh, no, this isn’t legalization at all!” to “Yes, we’re going to legalize for sick people first”.  Until marijuana is supported as a good thing for all and not an evil thing we allow medical exceptions for, medical marijuana patients will remain in second-class citizenship and healthy marijuana smokers will remain behind bars.

This week, even more elected officials speak out against the federal government’s marijuana crackdown and call for rescheduling. We also look at the results from two of the latest cannabis-related studies.

Be sure to tune in to NORMLtv each Thursday afternoon to catch up on the latest marijuana news. Subscribe to NORMLtv or follow us on Twitter to be notified as soon as new content is added.