Prison–for Pot?

I call Dick Evans to interview him. But he has his own question—or, more specifically, an assignment—for me: "I challenge you to find anyone who believes adults who choose to use marijuana responsibly deserve to be arrested, prosecuted and locked up."

Evans is pretty sure I'll come up empty; he's even willing to bet a lunch on it. A Northampton attorney and former member of the Board of Directors of the National Organization for the Reform of Marijuana Laws, or NORML, Evans spent decades advocating for the reform of drug laws, and while officially "retired" from the cause, he still tracks it closely.

These days, there's a lot to track. In November, Massachusetts voters could have the chance to decriminalize the possession of one ounce or less of marijuana, making it a civil, not criminal, infraction. On the federal level, U.S. Reps. Barney Frank, a Massachusetts Democrat, and Ron Paul, a Texas Republican (and renegade presidential candidate), are co-sponsoring legislation that would remove federal penalties for the possession of small amounts of marijuana. ("The notion that you lock people up for smoking marijuana is pretty silly," Frank said as he announced the bill on Bill Maher's HBO show "Real Time." That's one for Dick Evans.)

Add to that the increasing public debate about who ends up behind bars for drug crimes, and how much we as a society pay to prosecute and imprison them, and it's tempting to say there's a groundswell of interest, from across the political spectrum, in re-examining our drug laws. But as Evans and other long-time activists will tell you, when it comes to drug policy, change is slow in coming. Progress is made in small, incremental steps, which sometimes fall far short of what reformers would like to see.

"I think we can get lost in the increments," says Evans. While small changes can be important, he urges that focus be kept on what, in an email to the Advocate, he called "the 900-pound gorilla that terrifies so many people, and that is the broad question of whether, in 2008, the responsible use of marijuana by adults with no visible harm to themselves or anyone else ought to remain a crime, wrecking people's lives and diverting public revenues from urgent needs."

Plenty of Massachusetts voters share Evans' view, at least according to a series of questions that have appeared on local ballots in recent years.

Since 2000, activists—most notably, the Massachusetts Cannabis Reform Coalition, or MASS CANN (the state affiliate of NORML)—have worked to get non-binding public policy questions on marijuana reform on the ballots in four state Senate districts and 33 Representative districts. All were approved by a majority of voters.

A handful of the ballot questions addressed the legalization of medical marijuana; there was also one that would allow the growing of industrial hemp, and another to allow the state-regulated—and state-taxed—sale of marijuana to adults.

But the vast majority of the questions—28 of the total 37—went directly to the issue of decriminalization, asking voters whether possession of a small amount of pot should be a civil violation. Voters in every district approved the question, by majorities ranging from 59 to 76 percent.

While public policy questions are non-binding, they do serve as an important way of demonstrating to legislators the priorities of their constituents. Whether or not legislators heed those messages is, of course, another matter.

At the very least, the message was heard by activists, who saw Massachusetts presenting a prime opportunity for reforming marijuana laws. That led to the creation of the Committee for Sensible Marijuana Policy, or CSMP, the group behind the proposed November ballot question.

Under current Massachusetts law, marijuana possession can lead to jail, probation or a fine; a conviction can also result in the suspension of your driver's license, the loss of your right to possess firearms and the denial of student loans. While first offenses without mitigating circumstances are typically continued without a finding and dropped after one year if the defendant has no further legal problems, critics of the system say there are a number of ways prosecutors can pursue a tougher penalty—if, for instance, the arrest happened near a school zone. They also contend that the defendant's race and class can affect how aggressively a drug charge is pursued, a contention borne out by several recent studies.

Even if a defendant's charges are continued and then dropped, she still has to go through the costly and onerous legal system; as MASS CANN puts it, "Prosecution itself is used as a form of punishment."

If approved, the November ballot question would amend state law so that adults found guilty of possessing one ounce or less would face a $100 fine; those under 18 would also have to complete a "drug awareness program" and perform community service. The initiative has been endorsed by the American Civil Liberties Union as well as NORML and MASS CANN.

Last fall, CSMP cleared the first hurdle for getting the question on the ballot, collecting about 81,000 valid petition signatures (15,000 more than needed) in support. Now the group is conducting a second required signature drive, and needs to collect another 11,000 valid signatures by June 18.

At the same time, the Legislature is considering similar legislation that would create civil penalties for personal possession by adults. Given the historically slow progress of such bills, though, reformers see the ballot question as a way to put the issue directly in the hands of voters. "On this issue, the public is ahead of the politicians," says Whitney Taylor, manager of the ballot question committee.


To Taylor, existing laws regarding marijuana are too harsh. A person convicted of possessing a relatively small amount of pot could end up with a criminal record that would haunt him for years, standing as a barrier every time he applies for a job, a loan, an apartment. According to CSMP, 7,500 new criminal records are created each year in Massachusetts for people found guilty of possessing one ounce or less of pot.

The criminal record issue has a lot of traction on college campuses. "Historically, the war on drugs has been waged to protect young people. After decades of failed punitive prohibitionist policies, we as young people are here to say this war is actually hurting us," says Tom Angell, government relations director for Students for Sensible Drug Policy, a national group with chapters at about 125 high schools and colleges.

SSDP focuses on drug policies that affect young people, such as student drug testing. One particularly hot issue has been the 2000 Higher Education Act, which denied federal financial aid to students convicted of any drug offense, even if it happened before they were in college. While the law was amended in 2006 to apply only to students convicted at the time they are receiving aid, blocking anyone's access to education is wrong-headed, Angell says. Students forced to drop out of college for financial reasons will feel the repercussions for a lifetime; some may even be more likely to turn to drugs when other opportunities are denied. "We think that's an incredibly counter-productive policy," Angell says.

And in these days of municipal shortfalls, reformers have in their arsenal an especially persuasive argument: cost savings. Whitney points to a 2007 study by Jeffrey Miron, a Harvard economist, that found that Massachusetts police departments spend a total of $29.5 million a year to arrest and process suspects for possession of an ounce or less of pot.

"Let's let that $29.5 million stay in police coffers," Taylor says. "Let's let it stay in local communities and fight violent crimes."


Several studies have found that in the 11 states that already have similar laws in place—some going back as far as the 1970s—marijuana use and crime rates have not increased. "'Use is going to go through the roof; addiction is going to go through the roof'—all the Chicken-Little arguments the opponents will make did not come to fruition," Taylor says.

In making the case for the ballot question, advocates tread carefully. They emphasize the cost-saving aspect of decriminalization, and point to the backing of sober-minded economists, including the 500 who endorsed a 2005 study by Miron that estimated that federal, state and local governments could save $7.7 billion a year if pot were legalized.

And, no doubt aware of the risk of being dismissed as leftover hippies or punky college kids, reformers enjoy pointing to the surprising array of people who have supported decriminalization: George Shultz, secretary of state during the Reagan administration; Nobel laureate economist Milton Friedman; conservative columnist William F. Buckley, whose recent death was mourned by anti-prohibitionists around the country. Law Enforcement Against Prohibition, or LEAP, a Medford-based nonprofit, counts current and former cops, judges and legislators among its members.

"This is a reform that liberals and conservatives support, that people from all walks of life can support," Taylor says.

Not everyone, of course, supports the reform. LEAP notwithstanding, strong opposition is expected from within the ranks of law enforcement. The Massachusetts District Attorneys Association has condemned the CSMP ballot question, contending it will increase marijuana use and reverse recent trends of declining pot use among teens. "The District Attorneys ask Massachusetts parents, 'Do you really want to encourage your kids to smoke dope?'" the association asks in its official statement on the question.

The DAs also argue that there's a "direct link between marijuana use and public safety and public health." The group points, by way of example, to a study showing that 41 percent of men arrested in Chicago tested positive for marijuana; what it fails to report is what charges these men faced, and if, in fact, they were arrested solely for pot possession.

Similarly sketchy is the assertion that "the criminal justice system is the largest single source of referral to drug [not just marijuana] treatment programs"; left out is the question of whether these referrals were made, as a condition of law, to people arrested solely for possession of a small amount of pot.

More persuasive are statistics linking marijuana use to impaired driving, although, as the report notes, more impaired drivers have alcohol—a legalized drug—in their systems than pot. Likewise, the DAs point out the health risks of inhaling tar and carbon monoxide from pot, but sidestep the question of why cigarettes, which contain the same substances, are legal.

That line of reasoning also raises a sticky question: most reasonable people can agree that alcohol, cigarettes and marijuana all pose personal and public health risks; why, then, are two of them legal, and one illegal?

It's not surprising the DAs oppose decriminalization, Taylor says: "They want all the tools to convict people. That's their job."

Indeed, lots of jobs are directly tied to drugs remaining illegal, from those of prosecutors, police and jailers to business that goes to ad agencies contracted by the government to produce anti-drug campaigns, and to community groups that receive government funding for anti-drug work, notes Bill Downing, president of MASS CANN. "Their income depends in part on this 'war [on drugs],'" he says.

Backers of the ballot question are mindful of the public safety arguments that will be used against their cause. They point out that the question is narrowly defined, applying only to people carrying what's considered a "personal" amount of pot; it would have no effect on laws applying to the sale, trafficking or cultivation of marijuana, or to crimes like driving under the influence.

More to the point, the question would not legalize pot, but rather decriminalize it—an important distinction. If it passes, Taylor points out, "marijuana remains illegal. We're just creating a different type of penalty system. It deals with the fact that the law is broken, but it allows people to move on with their lives."


As November gets nearer, opposition to the ballot question will likely intensify. The district attorneys have already signaled one likely line of attack: questioning the political and financial support behind CSMP.

According to its most recent finance report, filed with the state Office of Campaign and Political Finance, CSMP's money comes largely from one source: George Soros, who donated $400,000 of the almost $430,000 raised in 2007. (Most of the money—$316,000—was used to hire a Worcester-based firm that runs petition signature campaigns.)

On the finance reports, Soros is listed as a self-employed "entrepreneur" and Manhattan resident. To the DAs and others in favor of prohibition, Soros is the bane of their existence. A 77-year-old native of Hungary, Soros is a self-made billionaire investor who's used his fortune to fund numerous philanthropic and political causes, including Democratic campaigns. Soros also sits on the board of the Drug Policy Alliance, an anti-prohibition group that calls for, among other things, the decriminalization of marijuana, the legalization of medical marijuana and an end to discriminatory drug laws.

The Drug Policy Alliance is hardly a crackpot group; its board includes business executives, mental health experts and religious leaders, with "honorary" members including George Shultz, past Federal Reserve Chairman Paul Volcker and former Surgeon General Joycelyn Elders. Still, as Allen St. Pierre, NORML's executive director, notes, when it comes to the heated debate over drug policy, "there's probably not a more polarizing figure" than Soros. He predicts the proponents of the ballot question will be painted by opponents as out-of-state "fringe drug legalizers."

Ironically, while drug law reform might still be cast as a "fringe" movement, drug use—specifically, pot smoking—has become increasingly mainstream. According to the Office of National Drug Control Policy, the government's chief anti-drug agency, a 2006 federal study found 40 percent of Americans over the age of 12 have smoked pot, 10 percent in the last year (and some suspect those figures are low, given respondents' reluctance to admit to committing a crime). A 2000 survey by the U.S. Dept. of Health and Human Services found that 20 million Americans smoke pot every year, 2 million on a daily basis.

Perhaps those figures explain the easy acceptance of pot smoking in popular movies and TV shows (like Showtime's Weeds, about a suburban widow who makes ends meet by selling marijuana, and CBS' How I Met Your Mother, with its unapologetic references to its characters getting high). We've got a sitting president who has indicated, although never directly admitted, that he has smoked pot, and is rumored to have dabbled in considerably harder stuff, and one contender for that job, Barack Obama, who is more forthcoming about his history of pot and cocaine use.

Of course, Bush and Obama speak of their past use with an air of repentance, and neither favors ending the prohibition on drugs (although Obama does criticize the Justice Department for raiding and prosecuting medical marijuana users). The other two major presidential candidates, Hillary Clinton and John McCain, also oppose decriminalizing marijuana. Other presidential candidates have supported decriminalization, including Ron Paul; Dennis Kucinich, the Ohio congressman who dropped out of the race months ago; and Mike Gravel, a Springfield native and former senator from Alaska, who promised at one debate that, if elected, he would "do away with the 'war on drugs,' which does nothing but savage our inner cities and put our children at risk."

Gravel, however, will never be president; neither will Paul or Kucinich. They have devoted supporters and well-honed positions, but they garner minimal coverage from the media. Much of that coverage is dismissive, in large part due to their outside-the-mainstream positions on issues like drug policy. Polls and public policy questions might signal that the public's view of drug use—particularly marijuana—is softening, but most establishment politicians are too wary to follow their lead.

That's why reformers are excited to put the decriminalization question before Massachusetts voters. "Any issue that comes with any amount of controversy at all, politicians are not ready to take a stand on if they don't have to," notes MASS CANN's Downing. "The Legislature wants to avoid the issue completely because they can only lose by addressing this."

Reformers could find some support from Gov. Deval Patrick, who's spoken out about inequities in the justice system, including the undue hurdles created for many under the existing criminal records system. "He's made the kinds of noises of someone who'd be amenable [to drug reform]," St. Pierre says. "At his core, he's got to be keen on some reform. It's a waste of money."

Still, Patrick is a politician, and with that comes a degree of caution. "Clearly, from a political, pragmatic view, he'd be very happy to never have to say the word 'marijuana,'" St. Pierre says.


It's getting harder for politicians to avoid drug policy issues, though, in light of a mounting pile of evidence about inequities in how those policies are executed. In May, the Sentencing Project, a justice reform group based in Washington, D.C., and Human Rights Watch, which tracks global human rights issues, released reports showing deep racial disparities in how drug laws are enforced. In large part, the problem stems from the intense focus on poor urban minority communities.

In 2006, 1.89 million people were arrested for drug violations in the U.S. More than 80 percent of the arrests were for possession; about 40 percent were for marijuana possession.

While the rate of drug use among whites and blacks is roughly equal, and blacks make up about 13 percent of the total population, they accounted for two-thirds of the drug arrests. And black men are nearly 12 times as likely to be sent to prison for drug convictions as white men, according to the HRW report. (The reports do not indicate rates for Hispanics, since they used FBI data that collects stats by race but not ethnicity.)

"The race question is so entangled in the way the drug war was conceived," Jamie Fellner, author of the HRW report, told the New York Times. "If the drug issue is still seen as primarily a problem of the black inner city, then we'll continue to see this enormously disparate impact."

Indeed, race has shaped U.S. drug policy from the start. In his 2003 book, Reefer Madness: Sex, Drugs, and Cheap Labor in the American Black Market, journalist Eric Schlosser traces drug prohibition back to the influx of Mexican immigrants in the early 20th century. The new arrivals were not, generally, warmly greeted, and that anti-immigrant sentiment extended to what Schlosser calls "their traditional means of intoxication: smoking marijuana."

Meanwhile, the association of marijuana with African-Americans, and particularly with the jazz scene in cities like New Orleans, added more racial fuel to the fire. Before long, government officials were warning of the alleged dangers of pot smoking. Users were described as extremely violent, possessing superhuman strength when under the influence, and prone to insanity—all depicted, to unintentionally comic effect, in the now-cult classic 1936 film Reefer Madness. By 1931, 29 states had banned pot; in 1937, Congress passed a federal ban.

Attitudes toward pot smoking softened somewhat in the 1960s, when it became the drug of choice of white, middle-class kids. In 1970, federal law was amended to differentiate marijuana from other narcotics and lessen penalties for possession of small amounts. At the time, NORML's St. Pierre recalls, marijuana reform "appeared to be on greased tracks."

Then came the conservative '80s, and Ronald Reagan's "Just Say No" anti-drug agenda. Marijuana was again vilified as a highly dangerous "gateway" drug that would lead to use of harder substances. Drug laws were toughened; the laws regarding pot now vary widely from state to state, and, critics say, are open to varying interpretation that can lead to harsher results for, say, a black kid from a distressed urban area than a white kid with a suburban address and parents who can afford a lawyer.

"It's because black folks used it—that's why marijuana and cocaine and heroin are illegal, and that's why tobacco and alcohol are legal and receive government subsidies. They're white folks' drugs," Evans says. The recent reports about racial disparities in the enforcement of drug laws, he adds, demonstrate "that marijuana prohibition laws have been very effective in achieving their original purpose, which was to repress minority communities."

It's not drugs that have devastated America's inner cities, critics say—it's the government-sponsored, publicly funded "war on drugs." In the same way that alcohol prohibition created a thriving black market for bootleggers and speakeasies—planting the seeds for modern-day organized crime in the process—the prohibition on drugs has created a black market that is thriving despite the billions spent in the quest to end it.

"Certainly, there is a dangerous level of violence and crime associated with the drug trade, but that's only because drugs are illegal," argues Tom Angell of SSDP. "Drug abuse is a serious issue. & But there's no drug known to man that gets safer when its production is handed over to violent drug cartels."

Which is why, reformers say, it's time to consider withdrawing the troops and declaring an end to the drug war. That doesn't mean that crimes associated with drug selling or use—violence, theft—wouldn't continue to be prosecuted; rather, anti-prohibitionists say, eliminating the black market for drugs would significantly reduce those related crimes. "In terms of the big picture, we can keep chasing our tail and busting a drug gang here or there, or we can put it all out of business by making it legal," Angell says.

And this is where drug law reformers will lose some of their base of support; plenty of mainstream Americans might see smoking the occasional joint as no big deal, but are they ready for a wholesale lifting of the ban on harder drugs?

They might, Evans says, if they consider just how little the prohibitionist agenda has accomplished. "What is your definition of victory in the war on drugs?" he wonders. "And when we achieve that victory, how many people will be in prison, and how much will it cost?"

Decriminalizing marijuana could be an important, and generally palatable, first step toward rethinking how we as a society view drugs. "It's 2008—it's two generations, almost, since the cultural revolution—and we still lock people up for pot," Evans notes. "What have we accomplished by wrecking millions of lives and spending jillions of dollars? What have we accomplished?"



Author: Maureen Turner

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