By David Hodes
Hey Mr. Politician, roll another bipartisan one and don’t bogart that joint resolution.
Right now, one of the biggest state-sanctioned social experiments ever attempted in this country is underway as a result of an illegal drug.
It’s happening because almost half of this country—23 states, plus the District, and counting—is making available to its residents a narcotic that the Drug Enforcement Administration says is one of the most dangerous and toxic drugs humans have ever used. The DEA lists it as a schedule 1 drug, reserved for the worst drugs listed by the DEA, on par with heroin, LSD, ecstasy and peyote—worse than cocaine and meth.
What’s crazier is that two of the most deadly, most abused and addictive drugs on the planet—alcohol and tobacco—aren’t even listed on any of the five categories of the DEA schedule. They are available at almost any convenience store. Even caffeine can kill—an Ohio high school wrestler died from an overdose of powdered caffeine in July.
Meanwhile, in Colorado and Washington, anyone over 21 can now walk into a dispensary and buy this illegal narcotic—legally.
That’s just the beginning of the big picture paradox for the confusing process of marijuana legalization. It’s an issue that has rapidly become the figurative hot potato inside police stations and courtrooms and legislative chambers, already adding millions to state budgets that will be used to build new schools and fix highway infrastructure.
This new social experiment could pay off big for those willing to take a chance now. Big Pharma, Big Alcohol and Big Tobacco are all watching developments carefully but are tight-lipped about their plans.
Virginia, a state with the country’s longest legacy in tobacco production (regulated and sold in the state since 1619) and a huge hemp growing state when it was first founded, was actually one of the first states to pass a medical marijuana law, back in 1979. But it was basically a ruse.
Dick Kennedy, a retired CIA economic analyst, a longtime marijuana reform activist working with the Northern Virginia chapter of the National Organization for the Reform of Marijuana Laws (NORML) who also serves on the board of directors for Virginia NORML, says that law is totally non-functional. “It says that the doctor has to write a prescription for it. And you can’t do that for a Schedule 1 drug,” he says.
Hemp vs. marijuana
Hemp growers are quick to point out the difference between their product and the smoking kind. Industrial hemp looks identical to marijuana but has less than 1 percent THC (which induces the “high”). Today’s brand of marijuana has THC content from 18 to 25 percent. The DEA doesn’t make a distinction between hemp and marijuana. Yet, despite the Controlled Substance Act of 1970, which resulted in the lumping together of marijuana and hemp, the federal government continues to make a distinction between the two plants. For example, in 1994, by executive order, former President Bill Clinton, another admitted collegiate marijuana smoker, designated hemp as a strategic crop of importance to national security. Hemp is legally grown by 29 countries around the world, with almost half of these having made hemp cultivation legal only in the last few years.
Source: The North American Industrial Hemp Council
He says Virginia NORML tried very hard to get either a medical marijuana or decriminalization bill introduced this year in the Virginia Assembly. Ironically, the only bill submitted came from a right-wing advocate, Republican Delegate Bob Marshall, who wanted to erase Virginia’s non-functioning medical marijuana law. It failed to gain support. “There is an industry group that is trying to get the Virginia legislature to allow at least the growing of hemp. And the Farm Bill that Congress just passed contains a provision for that. I suspect that will come up in the next session,” Kennedy says.
He says that Virginia NORML wants to see a bill drafted for submission to the legislature soon and he thinks that is going to happen. “I have been hassling Delegate Dave Albo, a conservative Republican who is chairman of the State Crime Commission and the House Courts of Justice Committee, and one of the more senior Republicans,” he says. “His committee is usually the first stop for any kind of marijuana law.”
Supporters of marijuana reform believe that there is light at the end of the Virginia tunnel, and NORML is chipping away like determined miners certain to find gold.
Ed McCann, former executive director of NORML and now policy director focusing on lobbying and legislation, says that he has spoken with both Virginia senators (Tim Kaine and Mark Warner) on the issue. “We have support now from Lieutenant Governor [Ralph Northam] for medical cannabis. And I believe he has committed to try and find senate sponsors for a medical cannabis bill.” Northam, a practicing pediatric neurologist in Norfolk who works with kids with epilepsy, told the Washington Post in early 2014 that he would be drafting legislation in 2015 to allow certain Virginia residents to use medical marijuana.
McCann says that he has also gotten confirmation from a senior Republican senator in the House (whom McCann declined to name) who he believes will be putting together a major medical cannabis bill next year. “I am very optimistic about the chances of having one, if not two, significant bills introduced in the 2016 session,” he says.
“What we have as a challenge is apathy and fear,” McCann adds. “The average person, even if they don’t use cannabis, are often reluctant to sign a paper or petition or come to a meeting for fear that a policeman will track them down or target them for an investigation, or that they will lose their job,” he says. “And that is sometimes a legitimate concern.”
The fear among skittish politicians on this issue is that bad decisions today on a drug that’s been misrepresented and downright lied about for almost 100 years in the U.S. will have unintended consequences tomorrow—and kids will die. Already, there are reports of toddlers coming to emergency rooms in Colorado after accidentally ingesting an edible, with some even slipping into comas requiring the insertion of a breathing tube, according to Children’s Hospital Colorado in sponsoring legislation for a new packaging law.
Where weed got its bad karma
In the 1930s, San Francisco newspaperman William Randolph Hearst commissioned scathing articles about marijuana, a drug he said was associated with an influx of marauding Mexican immigrants to California. Other sources say it was because hemp was cutting into his paper mill production profits and he was using his paper’s pulpit to kill that competition. Largely as a result of the fears that Hearst stirred up, Congress passed the Marijuana Tax Act of 1937, a system to tax any growers or sellers of hemp. The Bureau of Narcotics then prepared a standard bill for marijuana that more than 40 state legislatures enacted. This bill made possession and use of marijuana illegal. As an example of the sentiment for pot in those days, in May 1937, at a hearing before the House Ways and Means Committee about the taxation of marijuana, chairman Robert L. Doughton quoted two editorials during the statement of Dr. William C. Woodward, legislative counsel representing the American Medical Association:
“The marijuana cigarette is one of the most insidious of all forms of dope, largely because of the failure of the public to understand its fatal qualities. School children are the prey of peddlers who infest school neighborhoods.” – editorial that appeared in Washington Times
“It is time to wipe out the evil before its potentiates for national degeneracy becomes more apparent.” – editorial that appeared in the Washington Post.
When Colorado went recreational, Governor John Hickenlooper advised other governors to be cautious in following his state’s lead, as Colorado monitors the consequences of legalized recreational marijuana. His administration recently allocated tax revenue from pot sales ($45.5 million) for a youth marijuana and prevention deterrence.
“Lawmakers are going to regulate to the point of over regulation in the states,” Paul Armentano, deputy director of the national NORML and the NORML Foundation, says. “That is what politicians typically do. And when we are talking about a product that has a modern history of being prohibited and treated in such a way that the inference was this was a highly dangerous commodity, and where we are slowly emerging from a long-standing criminalized product to an outright legal product, politicians involved in the process are going to express caution.
In January, during a hearing before the Senate Judiciary Committee, Attorney General Eric Holder, an admitted marijuana smoker in college, essentially just said this Schedule 1 drug is no big deal, and the Justice Department will act forcefully to keep it out of the hands of minors like they do with alcohol. That remark was an inferred agreement with the statement that President Barack Obama gave during an interview with the New Yorker magazine just days earlier. Obama, who admitted he inhaled in his youth, said pot is no worse than alcohol.
Dude … seriously?
At a hearing in the Maryland Senate judiciary committee for the legalization and decriminalization of medical marijuana in February, Annapolis Police Chief Michael Pristoop, reported that 37 people died from overdosing on marijuana in Colorado on the first day it was legalized for recreational use. Problem is, his source for that information was a parody report. But he continued: “I think no one is overdosing on beer.” Except for some of the 75,000 people annually who die from alcohol poisoning. He later apologized for his mistake.
Seattle City Attorney Pete Holmes, while on city business, bought two grams of marijuana the day Washington begin selling recreational marijuana in July, then brought his stash back to the city office. Oops. That was a two-strike violation of city rules (illegal purchasing while on city business, illegal bringing it in to the workplace). He donated $3,000 to a downtown homeless shelter as penance for the mistake(s).
The Washington D.C. City Paper offered to pay the $25 fine for marijuana possession for the first five people who sent in a picture of their tickets along with the story of how they got it to celebrate the passage of the decriminalization of marijuana law in the District that began July 17. Mike Madden, editor at the paper, says no one has come forward.
It’s not hard to see why marijuana is in the center of a storm of a federal controversy, revealing more about a drug policy in disarray, a drug war that makes no sense when using the same criteria and punishment for marijuana as for heroin. It’s run by what pro-marijuana activists like Bill Piper, director of national affairs for the Drug Policy Alliance, an organization that advocates against the excesses of the war on drugs, calls an out-of-touch administrator who should resign the office. It represents an historical disconnect with the will of the people where, according to a recent Pew Research Center poll, 52 percent of Americans favor legalizing marijuana. And it’s an important social issue of the times and a feeding-frenzy, wild-west agribusiness bonanza for one of the hottest new commoditises available on the open market in years.
Big Tobacco has been planning since at least the 1970s to use legalized marijuana as both a potential product they want to plug into their massive and matured production and marketing infrastructure—or as a rival product they are going to have to fight for market share. But they will wait until the feds absolutely, positively, no-questions-asked sort out this issue. Because the last thing the tobacco industry wants to do is get on the wrong side of federal law in any new way while they deal with more class-action lawsuits—like the recent $26.3 billion verdict against RJ Reynolds in Florida—that have been killing their business. Calls and emails to tobacco executives were not returned.
According to Elan Nelson, business strategy and development manager at one of the largest marijuana dispensaries in the country, Medicine Man in Denver, picky marijuana connoisseurs aren’t likely to support tobacco companies getting into marijuana production, fearing that those manufacturers will create dangerous additives for the carefully cultivated product that will make it more addictive, like they did with tobacco. “Nothing like that will happen,” she says. “And there is a lot of turmoil in this business now, because what was perfectly legal yesterday could be changed overnight. So getting into the marijuana business is not a safe bet for those big corporations.”
Meanwhile, politicians dance around issues about changing the laws related to marijuana while pot-related arrests—740,000 a year in this country—of mostly people of color continue. NORML reports through its “Life for Pot” blog that there are some 21 people in prison in the country right now serving a life term for non-violent marijuana possession.
Nothing, yet, changes the fact that marijuana is still illegal. But, like they did with alcohol prohibition, the feds are standing back watching developments and not enforcing federal Prohibition laws in those 23 states.
And just like with prohibition, when so many states ignore the feds as they do now, the feds are quietly letting the states decide on their own what to do. Maybe the tax revenue coming from marijuana sales—over $23 million through May 2014 in Colorado, and estimated to be as much $1.4 billion a year if (and when) California changes to full legalization—will help drive it’s decision, as it did when the loss of tax revenue from liquor sales in the shadow of the Great Depression justified what they did back in the ‘30s.
Jail break
In a move seen by many as more groundwork for decriminalizing marijuana, on July 18, the U.S. Sentencing Commission voted unanimously to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively. Unless Congress disapproves the amendment, beginning November 1, eligible offenders can ask courts to reduce their sentences. Offenders whose requests are granted by the courts can be released no earlier than November 1, 2015. There are an estimated 46,290 offenders eligible for reduced sentences who could have their sentences shortened by an average of 25 months. They would still serve 108 months, on average. In Virginia, marijuana-related arrests make up over 50 percent of all drug-related arrests, costing the state over $67 million. Of the 23,402 marijuana-related arrests reported by Virginia state law enforcement in 2012, 89 percent were for mere possession.
The fact is that the feds could, like with Prohibition, at any time, step in and change everything, even after recent memos from the Department of Justice about what the DEA should do (leave marijuana dispensaries alone) and what the banks should do (it’s OK to do business with marijuana dispensaries).
But it’s that uncertainty that has entrepreneurs and investors nervous. “No guidance memo from the present administration can change the fact of the federal scheduling of marijuana,” Armentano says. “And because the memos simply provide guidance and are specific to the whims at the time of that administration, nobody is going to take that as a green light to invest and capitalize this industry when there is an understanding that, at any time, the present administration could simply rescind the memos, or a new administration could come in that doesn’t share those sentiments and they could rescind those memos,” he says. “That is why you need the weight of law to also be supportive at the federal level. And there is no indication that that is going to happen soon.”
Rescheduling marijuana is seen as a huge first step, one that would instantly expand medical use and create opportunities for more research almost immediately. But rescheduling marijuana does not solve the problem, according Piper. “Even if you do reschedule it, you still have to move it through the FDA system,” he says. “And that would take a decade and tens of millions of dollars to do.”
Just say “Go!”
A survey by the Pew Research Center, conducted March 13-17 among 1,501 adults, found that young people are the most supportive of marijuana legalization. Fully 65 percent of Millennials—born since 1980 and now between 18 and 32—favor legalizing the use of marijuana, up from just 36 percent in 2008. Yet, there also has been a striking change in long-term attitudes among older generations, particularly baby boomers. Half of boomers now favor legalizing marijuana, among the highest percentages ever. Nearly two-thirds of those under 30 (64 percent) favor legalizing marijuana use, as do about half or more of those 30 to 49 (55 percent) and 50 to 64 (53 percent).
Source: Pew Research Center report, April
Virginia lawmakers have been slow to join the discussion because, unlike states on the West Coast where voters decided on policies that were written by the advocates of those policies, legislators here and in other states on the East Coast have had their hands in the writing of the laws and the regulations every step of the way. “In Virginia, policy change has to go through the legislature,” Armentano says. “And legislature meets every other year to discuss policy because they have a very short session where they discuss the budget in between. So you don’t have the number of opportunities to work with lawmakers on this sort of issue that you potentially have with other states,” he says. “You just don’t have the opportunity to provide a steady stream of information and learning to these lawmakers.”
Piper agrees that, yes, Virginia is behind the curve. “But it’s worth noting that a number of Virginia Republicans voted to let states set marijuana policy in a U.S. House vote in May,” he says. The vote prohibits the Justice Department from spending federal taxpayer dollars to conduct raids or otherwise interfere with medical marijuana activities that are legal in states. “So I think you will see a shift in Virginia soon,” Piper says.
Lawmakers know that laws regarding issues of social change in Southern states have historically been slow to achieve consensus. But this social experiment is different.
Piper says that polls, like the one conducted by Public Policy Polling in January 2013 and cited by NORML, are showing that a majority of people in other southern states that are slow to change, like North Carolina and West Virginia, support legalizing marijuana like alcohol. “I think that signals an end to the discussion of whether or not to legalize it,” Piper says. “It’s just a question of when marijuana is going to be legalized, not if.”
There are thousands of baby boomers who smoked marijuana in college—and many still do—and some of them doctors, lawyers, legislators and business leaders. And those aging baby boomers, are in charge of making new rules about pot for a whole host of reasons, not the least of which is the temptation of big tax revenues from the regulated sale of marijuana.
Virginians fined for not growing pot
Jamestown Virginia colonists were not eager to grow hemp. However the European motherland wanted hemp and cultivation was deemed mandatory. From 1619 to 1776 many colonies passed laws encouraging farmers to produce hemp. Virginia designed laws to compel farmers, fining those who did not comply.
Thomas Jefferson was also a promoter of hemp and during his tenure as governor of Virginia he kept a reserve. In May of 1781, he used hemp as currency when paper money from the government was in short supply.
Source: Global Hemp
Right now, what most states and their bipartisan leadership have been able to get behind is decriminalization, an ongoing process for years in most states and often the first baby step towards full legalization.
Decriminalization of marijuana possession just passed for the District, which is an historic action because only in the District is Congress required to review any proposed new bill or amendment before it can become law. They said go ahead.
“But let’s be clear,” Armentano says. “Decriminalization continues to maintain a criminal classification for marijuana. It maintains that marijuana is contraband. It reduces the penalty from criminal to civil. But since it remains contraband, that means that the state retains the full power in its arsenal to confiscate the illegal product,” he says. “The cultivation, distribution and sale of marijuana, those all remain criminal activities.”
Virginia is feeling the heat on the issue from groups like NORML and from people seeking medical help now considering moving to Colorado. McCann pointed to a recent poll by Christopher Newport University that was cited by Virginia NORML, showing a serious increase in support for changing policy in Virginia among all demographics, with support for medical marijuana hovering around 72 percent of all polled, and just under 50 percent for total legalization.
Reality check
Amount spent annually in the U.S. on the war on drugs: More than
$51,000,000,000
Number of people arrested in 2012 in the U.S. on nonviolent drug charges:
1.55 million
Number of people arrested for a marijuana law violation in 2012:
749,825
Proportion of people incarcerated for a drug offense in state prison that are black or Hispanic, although these groups use and sell drugs at similar rates as whites:
61%
Tax revenue that drug legalization would yield annually, if currently-illegal drugs were taxed at rates comparable to those on alcohol and tobacco:
$46.7 billion
Source: Drug Policy Alliance
Kennedy says that if Northern Virginia representation were the majority in the legislature, an area of the state where there is a more liberal attitude than the rest of the state, a bill to legalize marijuana would pass easily. “It’s the rest of the state that holds it back, like a lot of other issues here,” he says.
Armentano says that 2016 could potentially be a high water mark on legalizing pot where there are going to be potentially as many as half a dozen states— Rhode Island, Delaware, Hawaii, Maryland, New Hampshire and Vermont, according to the Marijuana Policy Project—where voters are going to decide this issue, he says.
“As the federal government allows more of these states to experiment with regulatory schemes about legalizing marijuana and allow this experiment to take place, the fed is going to come to a crossroads where they are going to have to decide if they are going to impose their will on these states or let the states decide themselves,” he says. “And I think ultimately, in the not too distant future, that is going to be the decision. Because they don’t have to go on record of being pro-marijuana. They don’t have to go on record of imposing marijuana policy and they certainly don’t have to apologize for keeping a destructive policy in place. They simply have to say we are no longer going to be arbitrators of this policy for this nation. We are going to leave that option up to the individual states and let them decide. Then the feds simply will back out of the situation that they largely created.”
(October 2014)