Big financial incentives for government may tip scales
Joseph Surgenor of Oxnard is 32, a part-time concert promoter and a full-time medical marijuana entrepreneur.
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His nonprofit Ventura County Patients Cooperative grows enough cannabis to serve the medical needs of its 40-plus members and in many cases delivers the pot to their doors and bills them monthly. “We’re doing it as best we can and as legal as we can,” he said.
Surgenor has a vision for his enterprise. He’d like to open a sort of marijuana clinic and health spa in downtown Ventura, a place where members of the cooperative could come to purchase marijuana, take yoga classes and get instruction on healthy living and nutrition.
He is a missionary for medical marijuana, fervent in his belief that it brings relief to sick people. But ask him his views about legalizing cannabis for broad, recreational use and he pauses.
“My biggest fear,” he said, “is that the kids could be getting it. We might be sending the wrong message.”
Over in Thousand Oaks, Bill Watkins is a conservative economist who heads the Center for Economic Research and Forecasting at California Lutheran University. He is decidedly bearish about the state’s business climate, the state budget and the prospects of the Legislature being able to navigate its way out of long-term, structural deficits.
Ask Watkins what he thinks about legalizing marijuana in California, and he doesn’t blink.
“There’s no adverse consequence at all that I can see,” he said, noting that the high rate of teen consumption under the current prohibition would not likely rise and could possibly decline under regulation. “It just doesn’t seem like there are a lot of negatives.”
By regulating and taxing marijuana sales, he said, California could bring in at least an additional $1 billion a year. “That’s the closest thing we have to a free lunch.”
The conversation about the end of marijuana prohibition has begun.
It intensified in 2009 in a way that stunned even longtime drug-legalization advocates, as polls across the country and in California registered a decided shift in public thinking. In 2010, it will be an issue that few Californians can ignore.
On Tuesday in Sacramento, an Assembly panel could become the first legislative committee anywhere in America to approve a bill that would legalize the recreational, adult use of marijuana. And within a week or so, backers of an initiative to accomplish that goal say, they will turn in close to 700,000 signatures that would place the issue on the November ballot for all Californians to decide.
“It’s really quite something,” said Stephen Gutwillig, state director of the Drug Policy Alliance, a national group that has been advocating for reform of drug laws for decades. “Marijuana reform had been a very niche issue until 2009. It’s suddenly become a mainstream issue, and it’s only a matter of time before the Legislature is going to have to participate in regulating marijuana in California.”
Medical marijuana laws have been adopted by 13 states, and there has been an explosion of dispensaries openly selling marijuana with a wink and a nod to the concept of medical necessity in such locales as California’s pot-growing capital of Humboldt County, Denver and Los Angeles. But the notion of a transition to a post-prohibition world is still a paradigm-shattering idea.
A long-standing ban
No American born after 1937, when Congress passed the Marihuana Tax Act, can remember a world in which to smoke a joint wasn’t to risk arrest.
To be sure, no state alone could completely change the legal landscape. Marijuana is and will remain for some time a Schedule 1 drug under the federal Controlled Substances Act, which means it is strictly illegal under federal law and deemed to have a high tendency for abuse and no accepted medical uses.
If California or any state were to legalize marijuana, growers, sellers and users would still potentially be subject to federal prosecution. But most law enforcement is conducted by state and local authorities, who under Section 3 of the California Constitution cannot refuse to enforce a state law “on the basis that federal law or federal regulations prohibit the enforcement.”
Legalization advocates, heartened by last year’s decision by the U.S. Department of Justice not to federally prosecute anyone using pot in compliance with state medical-marijuana laws, believe legal marijuana is an emerging states’ rights issue.
“If Californians decide to remove penalties, nothing in federal law stands in their way,” said Theshia Naidoo, a staff attorney with the Drug Policy Alliance. “The federal government has neither the resources nor the political will to take on state enforcement.”
How would it work?
What would a world of legal marijuana in California look like? Would reefer be rampant? Would that pungent smell that emanated from college dorm rooms in the ’70s overtake parks and playgrounds? Would 7-Eleven stores stock packets of pot behind the counter alongside canisters of smokeless tobacco?
Proponents of legal marijuana have two words of advice for those who tense up at the thought: Think alcohol.
Distillers and wholesalers are licensed and taxed. Retailers are regulated and licensed, their hours of operation limited, their density restricted and their licenses put at risk if they are caught selling alcohol without first checking whether a customer meets the minimum age requirement.
“Alcohol might be the broadest parallel,” said Assemblyman Tom Ammiano, D-San Francisco, author of the marijuana legalization bill to be heard in committee this week.
Craig Reinerman, a sociology professor at UC Santa Cruz, wrote a 2004 academic treatise titled “Lessons from alcohol policy for drug policy.” In it, he noted many were skeptical in the 1930s that a regulatory framework could tame the “wide open” liquor business that thrived during Prohibition.
Yet alcohol control laws quickly succeeded in establishing order, he concludes.
“Alcohol moved from being a scandal, crisis and constant front-page news story to something routine and manageable, a little noticed thread in the fabric of American life,” Reinerman wrote. “Alcohol regulation has quietly and effectively organized and managed the production, distribution and sale of alcohol, as well as public drinking.”
Blueprint for change
At an international conference on drug legalization in Albuquerque last fall, proponents rolled out ideas for establishing a regulatory regime for marijuana that closely follows the alcohol model.
They argued it makes far more sense than the status quo, in which cannabis use is commonplace, a black market thrives and law enforcement spends resources in a futile effort to enforce an unenforceable ban.
“The problem with the debate up until now is that, despite the conclusion that prohibition doesn’t work, there’s never been a meaningful debate about alternatives,” said Danny Kushlick, head of policy at Britain’s Transform Drug Policy Foundation and the author of a just-released book, “After the War on Drugs: Blueprint for Regulation.”
Sanho Tree, director of the Drug Policy Project for the Washington, D.C.-based Institute for Policy Studies, said most Americans already believe “the current regime doesn’t work,” but policymakers have stubbornly declined to look at alternatives.
“It’s like taking a broken car to a mechanic to fix it and saying, ‘There’s one rule: You can’t look under the hood.’”
One important element of alcohol control, Reinerman said in an interview, is that it placed a heavy emphasis on local control. He noted Mississippi did not lift its ban on alcohol sales until 1966, and “we still have dozens and dozens of counties in the United States that are dry.”
The language of the California initiative follows that model: It says that while possession of an ounce or less of marijuana would be legal statewide, each city could decide on its own whether to allow sales in its jurisdiction.
Is it good for society?
Skeptics, led by those in law enforcement, say the comparison with alcohol regulation simply reveals that marijuana-legalization advocates are unable to make an argument that legal pot would be good for society.
“The question is: Is it really good?” said Capt. Derek West of the Ventura County Sheriff’s Department’s Special Services Bureau, which includes drug enforcement. “Nobody’s talking about the social and economic costs. Is marijuana good for you? Is it really good for society? The comparison with alcohol is a straw argument.”
Senior Deputy Gary Pentis, who notes he’s “worked dope a lot” over his career, said law enforcement officers see the dark side of marijuana use, including families and young lives that have been turned upside down by it.
“We see the negative effects of the drain of economic resources,” he said. “That has a huge cost to society. For every dollar in tax revenue marijuana would bring in, it would take six, seven, eight dollars in tax money to deal with health and abuse issues.”
Legalization advocates say such arguments ignore the real-world reality that whatever social costs stem from marijuana use already exist. The most recent national survey on drug use reports 41 percent of all Americans over the age of 12 have tried marijuana at least once, and a majority of those 21 to 34 have done so.
Doctors endorse change
Dr. Larry Bedard of Sausalito sponsored a resolution approved in November by the California Medical Association that declares “the criminalization of marijuana to be a failed public policy.” He says public policy ought to acknowledge reality.
“The U.S. has one of the highest marijuana usage rates in the world — significantly higher than in the Netherlands, where it is, in essence, legal,” Bedard said. “As an emergency physician, I’m a realist. What would be the difference if marijuana was legal and regulated? Do you think more college students are going to smoke marijuana than they do now?”
Bedard, now retired, spent much of his career treating patients in emergency rooms. He estimates he treated “probably 10,000 patients” who were brought in because of injuries and illnesses stemming from alcohol use and only a handful who were admitted from incidents involving marijuana.
“I’m not saying this would be nirvana,” he said of legalization. “There is no drug that is used that doesn’t have potential adverse consequences.”
In his view, however, one of the biggest negative consequences of marijuana use today is “getting arrested and getting a record” that could limit someone’s educational and employment opportunities.
“I think right now the adverse consequences of having it illegal far outweigh the consequences of making it legal and regulated.”
Marijuana arrests up
California has long treated adult possession of a small amount of marijuana as a misdemeanor punishable by nothing more than a fine of $100. But arrest statistics show that not only is the law frequently enforced, but arrests for pot possession are by far the fastest-growing category of arrests in the state.
An October study by the San Francisco-based Center on Juvenile and Criminal Justice found the number of arrests for misdemeanor marijuana possession soared 127 percent from 1990 to 2008, a period in which “virtually every category of serious crime registered sizeable decreases in rate of arrest.”
In 1990, the study shows, misdemeanor marijuana arrests accounted for just 8.2 percent of all drug-related arrests, including felonies for the sale or manufacture of hard drugs such as heroin, meth and cocaine. By 2008, 22.8 percent of all drug arrests in California were for misdemeanor marijuana possession. The number of Californians arrested for the crime was 61,388, a rate of 168 each day.
“The amount of law enforcement resources being directed toward marijuana enforcement is an abomination,” said Daniel Macallair, the center’s executive director and a co-author of the study. “With the state budget crisis, how can you justify that?”
Deputy cites prevalence
While there are clearly costs involved in processing these arrests, Senior Deputy Pentis scoffs at the suggestion that police agencies are spending resources going after small-time marijuana users.
The reason the number of arrests is so high, he said, is simply that marijuana has become so prevalent, and officers cannot simply ignore the fact that people detained for other reasons also have pot in their possession.
“You can get marijuana anywhere,” he said. “People are smoking it.”
Those who are arrested, he said, typically pay the fine and suffer little other consequence. “They don’t get placed on probation, they aren’t required to do urine tests.”
Ventura defense attorney Jay Leiderman, who specializes in marijuana-related cases, said it’s true the policy of county prosecutors is not to charge stand-alone arrests for misdemeanor marijuana possession. “But even though a lot of police officers have gotten the memo, they’re not with the program.”
For those arrested, Leiderman said, the consequences extend well beyond the possible $100 fine. Even if a charge isn’t filed, the arrest alone will show up on background checks for at least two years.
“Everyone who hires today uses those background checks, and that’s where the real devastation comes in. I can’t tell you how many young people I’ve talked to who are waiting for their two years to expire so that they can apply for a new job,” he said.
For those seeking jobs in law enforcement, banking or nursing, the arrest lingers for many years on background checks.
No quick end to cartel
Capt. West said the main law enforcement focus on marijuana is to go after large-scale growers and dealers. Last year, sheriff’s narcotics officers destroyed 112,000 plants, seized 550 pounds of marijuana and arrested 23 people involved in growing pot in Los Padres National Forest. In addition, they raided nine indoor pot-growing operations, seizing 3,104 plants and 94 pounds of processed marijuana, arresting 11.
Although legalization advocates argue that a regulated market for marijuana would largely drive black marketeers out business, West believes otherwise. “The cartel is not going to go away,” he said. “What they do well is selling dope.”
Advocates again point to the alcohol precedent, noting the end of Prohibition almost immediately eliminated rum-runners, speak-easies and the gang-controlled liquor black market. But they acknowledge if marijuana prohibition ended, it would not likely mean the immediate end of illegal pot-dealing.
Legal option attractive
“There are going to be legitimate market forces and a movement of many marijuana consumers away from underground markets, because that’s where people want to shop,” said Gutwillig of the Drug Policy Alliance. “Most people would rather buy from a legitimate business than a drug dealer, even if it’s more expensive.”
Lisa Cordova Schwartz of Camarillo, a regular marijuana user since she turned to it as an alternative to a doctor-proposed morphine pump for pain relief, said her current options in dispensary-free Ventura County are to grow her own or to buy from illegal dealers. She chooses to grow her own.
“The quality is bad, and we don’t want the money to go into the black market,” she said.
Ventura attorney James Devine, a medical marijuana patient, represents clients in the industry who grow, transport and sell marijuana to those who have a doctor’s recommendation to use it.
He said he believes legal growers, “going full bore, can produce it at a rate and a cost that undermines a cartel.”
And as a consumer, Devine said, his choice in a world of legal marijuana would be a no-brainer.
“Everybody I’ve ever bought weed from is going to be upset,” he said, “because I’m never going there again.”
By Timm Herdt
January 9, 2010
Ventura County Star