Ending Cannabis Prohibition in America
The now forty-year-old organized effort to reform cannabis laws in America is on the precipice of major socio-political reforms with approximately fifty percent of the population no longer supporting the nation’s seventy four-year-old Cannabis Prohibition. While reformers have made tremendous gains, notably at the state level, which have placed them at this crossroads, obstacles to full cannabis legalization are abundant and deep-seated in Congress and the federal government.
This paper seeks to identify important areas of concern for cannabis law reform, highlight the factors that have created a positive environment for reform, recognize who are the last and largely self-interested factions in society who fervently defend and/or prosper from Cannabis Prohibition’s status quo, and what are some of the strategic decisions that reformers can implement that will hasten an end to Alcohol Prohibition’s illegitimate, long-suffering cousin.
Important Areas Of Concern For Cannabis Law Reformers
There are several areas of concern for reformers, notably the federal vs. state disconnect in Washington, D.C.; citizens’ illogical fear of cannabis more than alcohol; and the political box canyon potentially created by medical cannabis.
Federal vs. State Government Disconnect –
On a recent video essay broadcast October 20, CNBC host and former senate staffer Lawrence O’Donnell lamenting about Cannabis Prohibition said ‘that only in the U.S. Senate can there be zero discussion about a policy change fifty percent of the country supports’. In a nutshell, despite 14 states having decriminalized cannabis possession, and 16 states and the District of Columbia ‘medicalizing’ cannabis, the U.S. Congress and the executive branch (along with a federal judiciary that is totally deferential to Congress’ intent and will regarding anti-cannabis laws) have a near total disconnect between what the governed want vis-à-vis reforming cannabis laws and elected policymakers on Capitol Hill who strongly support the status quo.
The numbers that frame this political quandary: 75% of the public support medical access to cannabis; 73% support decriminalizing cannabis possession for adults and now 50% of the population support outright legalization (California, where one out of eight U.S. citizens live, nearly passed a legalization voter initiative last fall, only losing by three percentage points). So it can be asserted with confidence that ‘soft’ cannabis law reforms of medical access and decriminalization enjoy overwhelming public support and that the ‘hard’ reform of legalization has now moved into the majority (The recent Gallup poll showed only 46% of citizens continue to support Cannabis Prohibition).
However, even with clear polling data to help guide them away from restrictive policies no longer supported by the public, the Obama Administration’s fifth attempt this October since he took office to introduce ‘digital democracy’ into policymaking decisions by creating a public website where citizens and organizations can post online petitions seeking changes in the ways government works, the president was once again confronted by the publics’ number one question: Why do we have Cannabis Prohibition in 2011? Shouldn’t it be ended as an ineffective public policy?
Unfortunately, like the previous four opportunities to confront public unrest about Cannabis Prohibition, despite the NORML petition being number one with 72,000 signatures, the Obama Administration once again totally rejected any public calls for cannabis law reforms and re-asserted the federal government’s primacy over the states in enforcing national Cannabis Prohibition laws (see discussion below).
Cannabis’ Fear Factor –
Recent polls and focus group data gathered by cannabis law reform advocates post last year’s near-victory in California for Prop. 19 (the initiative that would have legalized cannabis) revealed an important and troubling public perception that reformers need to largely overcome to be successful: Almost fifty percent of the general public in California—where the issue of reforming cannabis laws have been vetted like no other place on earth since the late 1960s— illogically fears cannabis more so than alcohol products.
Forgive the pun, but reformers have to do a better job ‘normalizing’ cannabis use such that its responsible use causes no greater concern in the public’s eye than the responsible use of alcohol. Otherwise, it is hard to imagine cannabis becoming legal anytime soon if fifty percent of the public fears the product and the consumers who enjoy it.
Medical Cannabis’ Political Limitations –
While NORML is the sui generis of medical cannabis in the United States (first suing the Drug Enforcement Administration to reschedule cannabis as a medicine in 1972, NORML vs. DEA), the organization recognizes that absent substantive changes in the federal government’s Controlled Substances Act (and controlling International treaties envisaged and championed by America at the United Nations), qualified medical patients accessing lawful cannabis with a physician’s recommendation in states that authorize such is an untenable conflict with the existing federal laws that do not, under any circumstance, allow for the therapeutic possession, use or manufacture of cannabis.
This state and federal conflict regarding Cannabis Prohibition laws came into full view this year despite previous attempts otherwise by the Obama Administration to slightly modify the federal government’s historic recalcitrance in allowing states greater autonomy to create cannabis controls, and in some cases such as Colorado, to establish tax and regulate bureaucracies specifically for medical cannabis.
Federal actions against medical cannabis in 2011:
*US Attorneys in California deny the city of Oakland the ability to set up a city-sanctioned arrangement with medical cannabis industry to cultivate and sell medical cannabis;
*The Internal Revenue Service (IRS) ruled that medical cannabis dispensaries are not legitimate businesses under federal law and therefore can’t take standard business tax deductions;
*The Bureau of Alcohol, Tobacco and Firearms (BATF) sent a memo to all gun dealers in the U.S. warning them not to make any sales of guns or ammunition to medical cannabis patients, even those who possess a state-issued ‘medical cannabis patient’ card. In effect, this federal action has rendered medical cannabis patients with no Second Amendment rights;
*Federal banking regulators regularly harass and threaten local and state banks not to do business with commercial medical cannabis businesses, even if the businesses have state and city-issued licenses to sell medical cannabis;
*US Attorneys in California and the DEA sent warning letters to otherwise state-compliant medical cannabis businesses that are properly zoned under local laws to shut down or move away from federally-funded schools, day care or recreation centers within 1,000 feet of the dispensary;
*These same US Attorneys are now threatening to legally pursue newspapers and magazines that advertise what are otherwise legal, state and city-authorized businesses and their lawful commerce.
Also, under numerous state Supreme Court decisions, lawful medical patients can be denied employment; along with driving privileges (which was recently overturned in California), child custody, Section Eight housing, university residences, and even be denied a life-saving organ transplant.
With so many onerous institutional discriminatory practices and restrictions—and the price of medical cannabis remaining inordinately high because of the existence of Cannabis Prohibition—patients who genuinely need access to this low toxicity, naturally occurring herbal medicine would be far better served by ending Cannabis Prohibition in total than trying to carve out special legal exemptions to existing prohibition laws.
Why Cannabis Reform Is More Popular Now Than Ever Before
The rapid increase in public support for cannabis law reform is made possible by five factors:
1) Baby Boomers are now largely in control of most of the country’s major institutions (media, government, entertainment, education and business) and they have a decidedly different perception and/or relationship with cannabis than the World War II generation (AKA, the Reefer Madness generation), who, were largely abstinent of consuming cannabis.
2) These crushing recessionary times have forced many elected policymakers to drop their support for rigorous enforcement of Cannabis Prohibition laws. Numerous states and municipalities have adopted half measures towards legalization, notably decriminalizing possession or adopting a lowest law enforcement priority strategy.
3) Medical cannabis first becoming legal in 1996 by popular vote in California. After the nation’s largest and most politically important state adopted medical marijuana guidelines, sixteen states and the District of Columbia have followed suit setting up a terrific state vs. federal government conflict that has already visited the U.S. Supreme Court twice (2002 and again in 2005).
4) The advent of the Internet in the mid 1990s allowed citizens to communicate directly with each other at very low costs, create large social networks of like-minded community members, avoid mainstream media (which readily serves as a lapdog, rather than government watchdog in the war on some drugs) and educate themselves with verifiable and credible information about cannabis (rejecting government anti-cannabis propaganda programs like the controversial DARE program in the public schools and the Partnership for Drug-Free America’s ineffective ad campaigns in the mainstream media).
5) Americans are apparently (and finally!) becoming increasingly Cannabis Prohibition weary after seventy-four years. In comparison, America’s great failed ‘social experiment’ of Alcohol Prohibition lasted about a dozen years.
Who Actually Wants Cannabis Prohibition To Continue?
One of the principle lessons in the Art of War is to ‘know thy enemy’. Therefore, it behooves cannabis law reformers to understand what small, but powerful factions in American society actively work to maintain the status quo of Cannabis Prohibition:
1) Law enforcement – There is no greater strident voice against ending Cannabis Prohibition than from the law enforcement community—from local sheriff departments to the Fraternal Order of Police to State Police departments to federal law enforcement agencies.
2) Federal and state bureaucracies born from Cannabis Prohibition itself – Washington, D.C. and most state capitals have created dozens of anti-cannabis government agencies to both maintain and enforce existing Cannabis Prohibition laws. Examples: Drug Enforcement Administration, Office of National Drug Control Policy (AKA, drug czar’s office), DARE, Partnership for a Drug-Free America, National Institute on Drug Abuse, Substance Abuse Mental Health Services Administration, National Drug Control Information Center, etc…
Many of these bureaucracies in turn provide most of the funding to so-called ‘community anti-drug organizations’ to create the false appearance of local grassroots opposition to any cannabis law reforms.
3) Alcohol, tobacco and pharmaceutical companies –
Historically, alcohol, tobacco and pharmaceuticals companies play both ends of the middle when opposing cannabis law reforms for the simple reason that all of these industries will lose a portion of their market share to legal cannabis.
4) Private corporations that prosper from Cannabis Prohibition –
Numerous private companies donate significant funding annually to anti-cannabis politicians and organizations to maintain the status quo. Examples of such are private prisons, drug testing companies, rehabilitation services, communication companies, contraband detection devices, interdiction services and high-tech companies.
Reformers can hasten the end of Cannabis Prohibition
-Bipartisan support to end Cannabis Prohibition is a political given. However, since the 1990s every single major cannabis law reform initiative that has been successful has been funded by one of two liberal, politically divisive billionaires (George Soros and Peter Lewis). Reformers need to achieve greater political and funding diversity to significantly advance cannabis law reforms in today’s highly divided national political landscape.
-Recognize that most all of the major policy reforms are first achieved at the local and state level, in time putting due political pressure on the federal government to follow suit.
-Cannabis law reformers need to better work in concert with other like-minded political and social organizations that also oppose failed government programs or seek redress for grievances against the government.
-Reformers need to create a far more simpler reform narrative that juxtaposes ‘pot tolerant’ citizens against ‘intolerant’ citizens in the same manner that Alcohol Prohibition pit ‘wets’ against ‘drys’.
-Reformers need to continue demonstrating the tremendous cost to taxpayers of maintaining Cannabis Prohibition; the loss of needed tax revenue and the genuine lack of social controls that enhance public safety.
-Reformers need to keep directing public and media attention to the serious de-stabilization of the country’s borders created by the tremendous illegal succor of Cannabis Prohibition in countries like Mexico.
-Continuing what cannabis law reformers have been successfully achieving for forty years, which is to say winning a ‘hearts and minds’ campaign in the population, and recognizing that elected policymakers in Washington are not going to be able to lead the country out of it’s long-suffering Cannabis Prohibition without public advocacy that is derived from effective, politically diverse and bottoms up grassroots stakeholdership.
To: DEA, HIDTA, Federal task force partners in California for internal law enforcement use only. Not for public use or circulation [Editor's note: Hah! Also, this memo is only applicable in California---not Colorado, New Mexico and Maine, where these states regulate the medical cannabis industry (whereas California does not, arguably opening the door to federal incursions and prosecutions).]
From: California United States Attorneys
This memorandum outlines factors that all four California U.S. Attorneys Offices (the USAOs) agree may render a particular marijuana case suitable for federal prosecution. Identification of these factors is intended to assist federal, state and local law enforcement agencies in determining whether a particular marijuana case has significant potential for federal prosecution and conducting investigations in a manner that develops the best evidence to support federal prosecution (Footnote 1). The USAOS will consider for federal prosecution cases investigated by federal, state or local law enforcement agencies that implicate federal interests as reflected in the factors. Cases investigated by federal agencies will generally be given priority over cases adopted from state or local investigations. The factors listed below are relevant to the USAOs consideration of whether a marijuana case should be prosecuted federally but the presence or absence of one or more of the factors will not guarantee or preclude federal prosecution in any case. In general the federal interest will be greater in prosecuting leaders and organizers of the criminal activity as opposed to lower level workers.
The memorandum is intended as prospective guidance only, is not intended to have the force of law and is not intended to, does not, and may not be relied on to create any right, privilege or benefit, substantive or procedural, enforceable by any person or entity against any type of the USAOs, DOJ or the United States.
1) Domestic distribution cases.
Federal prosecution of a case of domestic distribution of marijuana should generally involve at least 200 or more kilograms of marijuana and also include additional factors that reflect a clear federal interest in prosecution (Footnote 2—This guidance for domestic distribution cases does not apply to cases involving distribution within or smuggling into a federal prison.18 USC 1791). Typically the more marijuana above 200 kilograms the better the potential for federal prosecution. Domestic distribution cases involving quantities of marijuana below 200kilograms should demonstrate an especially strong federal interest or should not be prosecuted with marijuana distribution as the sole federal charge. Set forth below is a non-exhaustive list of factors that USAOs believe indicate a federal interest in a domestic distribution case.
*Distribution by an individual or organization with provable ties to an international drug cartel or a poly-drug trafficking organization.
*Distribution of significant quantities to persons or organizations outside California.
*Distribution by individuals with significant prior criminal histories.
*Distribution by individuals with provable ties to a street gang that engages in drug trafficking involving violent conduct.
*Distribution for the purpose of funding other criminal activities.
*Distribution near protected locations or involving underage or vulnerable people (e.g. in violation of 21 USC 859 persons under 21, 860 near schools, playground and colleges, 861 employment of persons under 18).
*Distribution involving the use or presence of firearms or other dangerous weapons including cases that would support charges under 18 USC 924c.
*Distribution generating significant profits that are used or concealed in ways that would support charges of federal financial crimes such as tax evasion, money laundering or structuring. Note: Generation of significant profits alone generally will not be viewed as a factor weighing in favor of federal prosecution.
*Distribution in conjunction with other federal crimes involving violence or intimidation.
2. Cultivation cases.
Federal prosecution of a marijuana case involving cultivation on non-federal or non-tribal land, indoor or outdoor, should generally involve at least 1,000 marijuana plants so that the quantity necessary to trigger the ten-year mandatory minimum sentence can be clearly proven and also include additional factors that reflect a clear federal interest in prosecution. Typically, the more marijuana above 1,000 plants, the better the potential for federal prosecution. Non-federal or non-tribal land cases involving quantities below 1,000 plants should demonstrate an especially strong federal interest or should not be prosecuted with marijuana cultivation as the sole federal charge. Federal prosecution of a marijuana case involving cultivation on federal or tribal land should generally involve at least 500 marijuana plants and also include additional factors that reflect a clear federal interest in prosecution. Cases on federal or tribal land involving quantities below 500 plants will be considered if they demonstrate a strong federal interest, if the cultivation has caused significant damage to federal or tribal lands or has occurred in an area of exclusive federal jurisdiction (Footnote 3– The USAOs will consider the totality of circumstances with respect to all marijuana plant quantities in these guidelines. For example, the presence of especially mature, large or robust plants will generally weigh in favor of prosecution while the presence of seedlings or immature plants will generally weigh against prosecution). Set forth below is a non-exhaustive list of factors that the USAOs believe indicate a federal interest that may justify federal prosecution of a marijuana case involving cultivation whether on federal, tribal or other lands.
*Cultivation causing significant environmental damage, risk to human health or interference with particularly sensitive land or significant recreational interests, ie damage to wilderness area or wildlife, danger to innocent families using a recreation area or use of toxic or dangerous chemicals.
*Cultivation by an individual or organization with provable ties to an international drug cartel or poly-drug trafficking organization.
*Cultivation of significant quantities on behalf or persons or organizations outside California.
*Cultivation by individuals with significant prior criminal histories.
*Cultivation by individuals with provable ties to a street gang that engages in drug trafficking involving violent conduct.
*Cultivation for the purpose of funding other criminal activities.
*Cultivation near protected locations or involving under-age or vulnerable people (eg, in violation…
*Cultivation involving the use or presence of fire-arms, booby traps or other dangerous weapons including cases that would support charges under 18 USC 924c.
*Cultivation generating significant profits that are used or concealed in ways that would support charges for federal financial crimes such as tax evasion, money laundering or structuring. Note—generation of significant profits alone will not be viewed as a factor weighing in favor of federal prosecution.
*Cultivation in conjunction with other federal crimes involving violence or intimidation
3. Dispensary cases.
Given California state law, prosecution of marijuana stores or “dispensaries” purporting to comply with state law face additional challenges. Federal prosecution of a case involving a marijuana store should generally involve a) provable sales through seizures or records of over 200 kilograms or 1000 plants per year. b) sales clearly in violation of state law, eg sales to persons without legitimate doctors’ recommendations, side-sales occurring outside of the store or shipping to persons outside of California (Note—selling for profit, though a violation of state l aw, typically alone will not alone satisfy this requirement), and c) additional factors that reflect a federal interest in prosecution. Set forth below is a non-exhaustive list of such additional factors. Nothing herein should be taken as a limitation on investigation by federal law enforcement to determine the existence of these factors. However, search warrants or other more intrusive investigative techniques directed at marijuana stores should be closely coordinated with the USAOs.
*Marijuana “inventory” obtained from cultivation on federal or tribal land.
*Targets involved in cultivation or distribution outside of the dispensary that merits federal prosecution based on consideration of factors set forth in sections 1 and 2 above.
*Targets using profits from the dispensary to support other criminal activity.
*Store linked to physician providing marijuana recommendations without plausible legitimate justification, eg doctor on site providing recommendation with no on-site examinations or legitimate medical procedures.
*Targets have significant prior criminal histories.
*Targets have provable ties to a street gang that engages in drug trafficking involving violent conduct.
*Store operations involve the use or presence or firearms or other dangerous weapons including cases that would support charges under 18 USC 924.
*Store generates significant profits that are used/concealed in ways that would support charges for federal financial crimes such as tax evasion, money laundering or structuring. Note–generation of significant profits alone generally will not be viewed as a factor weighing in favor of federal prosecution
*Store operations in conjunction with other federal crimes involving violence or intimidation.
*Store employs minors under 18 and/or sells a significant portion of marijuana to minors under the age of 21 especially where evidence that minors aren’t using for medical purposes
4. Civil forfeiture.
The USAOs general preference is to pursue forfeiture through criminal forfeiture or civil forfeiture filed in parallel with a criminal case. Nevertheless circumstances may arise in which civil forfeiture alone is the best option. Those cases will generally involve one or more of the following:
*Significant forfeitable assets clearly traceable to marijuana trafficking in violation of federal criminal law that would merit federal prosecution based on consideration of factors set forth in sections 1-3 above.
*Significant forfeitable assets clearly traceable to non-marijuana related violations of federal law such as structuring or money-laundering. Large scale “medical marijuana” cultivation operations that 1) are operating in violation of state law 2) involve real property that has been the subject of a warning letter or similar prior notice or 3) involve real property that has been the subject of a prior forfeiture proceeding arising from marijuana cultivation or a property owner who has been a claimant in such proceedings or individual targets not subject to criminal prosecution eg fugitives or persons whose involvement in marijuana trafficking is too marginal to justify criminal prosecution including off-site land lords and non-resident owners falsely claiming ignorance of tenant’s marijuana trafficking.
Today, three NORML Legal Committee attorneys will announce lawsuits against the federal government with hopes of ending the medical marijuana crackdown in California. Attorneys Matt Kumin, David Michael, and Alan Silber are coordinating the effort which aims to enjoin the federal government from this latest round of federal enforcement actions against the growers and dispensaries in the state.
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.
Update: Watch the entire program here.
The Pot Republic
FRONTLINE’s primetime monthly newsmagazine returns with three new stories, leading with a timely report from the frontlines of marijuana legalization in California. The bulk of the marijuana consumed in the United States used to come across the border from Mexico, Canada and elsewhere. Now, more than half of it is believed to be home grown in California, where an enormous black market has emerged under the cover of the state’s medical marijuana law.
With more than a third of all states now experimenting with some form of legalization and decriminalization — and several California counties attempting to openly regulate pot production — FRONTLINE and the Center for Investigative Reporting team up to investigate the country’s oldest, largest and most wide-open marijuana market.
Is the federal government now moving to shut it down?
Read more here.
A mainstream coalition in Washington State has emerged in an attempt to pass a binding voter initiative to legalize the responsible adult use of cannabis, raise needed taxes and create alternative legal controls to the clearly failed policies of 74 years of Cannabis Prohibition.
It would set limits on how much cannabis people can have: an ounce of dried bud, 16 ounces of marijuana-infused foods in solid form, and 72 ounces of marijuana-infused liquids, or all three, Holcomb said. Limits are necessary to help ensure that people don’t buy large amounts for resale in other states, she said.
The Seattle Times breaks the news below and highlights some of the proposed initiative’s early and key supporters–including the former US Attorney, the current Seattle prosecutor and NORML Advisory board member Rick Steves.
The 20th annual Seattle Hempfest will have two important reform projects for the hundreds of thousands to truly rally around this year: a state legalization initiative (the ACLU’s or Sensible Washington’s) and the first ever federal legalization bill expected to be introduced at any moment here in the decidedly less hip and green Washington, D.C.
Will 2012 be the year of mass marijuana legalization initiatives in America? It appears that way now with Washington, California and Colorado on track for such; Oregon, Massachusetts and Ohio may follow suit.
A coalition that includes former U.S. Attorney John McKay, Seattle City Attorney Pete Holmes and travel guide Rick Steves is launching an initiative that would legalize marijuana in Washington state.
The group, led by the American Civil Liberties Union of Washington, decided to push the initiative this spring after Gov. Chris Gregoire vetoed most of a medical-marijuana bill that had passed the state Legislature.
“We did some more public-opinion research, looked at the numbers and said, ‘Yeah, this is the time,’ ” said Alison Holcomb, campaign manager for the initiative and drug-policy director of the ACLU of Washington.
The initiative would regulate the recreational use of marijuana in a way similar to how the state regulates alcohol..
It would legalize marijuana for people older than 21, authorize the state Liquor Control Board to regulate and tax marijuana for sale in “stand-alone stores” and extend drunken-driving laws to marijuana, with blood tests to determine how much of the substance’s active ingredient is present in a driver’s blood.
Taxing sales would bring the state $215 million a year, conservatively estimated, Holmes said.
McKay, who spent five years enforcing federal drug laws as the U.S. attorney in Seattle before he was fired by the Bush administration in early 2007, said he hopes the initiative will help “shame Congress” into ending pot prohibition.
He said laws criminalizing marijuana are wrongheaded because they create an enormous black market exploited by international cartels and crime rings.
“That’s what drives my concern: The black market fuels the cartels, and that’s what allows them to buy the guns they use to kill people,” McKay said. “A lot of Americans smoke pot, and they’re willing to pay for it. I think prohibition is a dumb policy, and there are a lot of line federal prosecutors who share the view that the policy is suspect.”
Supporters would have until the end of this year to gather more than 240,000 signatures to get the initiative before the Legislature. Lawmakers could approve or allow it to go to the ballot next year.
Read the rest of the article here.