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The Midwest Proves Fertile Ground for Marijuana Reform, Despite Rabid Republican Agenda

From Michigan to Kentucky the spade work of progressive reformers is paying off.
 
 
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The Republican hardliners who have taken over several Midwestern state governments have largely stalled efforts to modify marijuana laws there this year. But after more than a decade of pressure from grassroots activists, the region is beginning to show some change.

"The Midwest is starting to catch up," says Jill Harris, a policy director at the Drug Policy Alliance. "Just the fact that it's a conversation now, when it wasn't five years ago, is progress."

The most dramatic advances have come in Michigan, where voters legalized medical marijuana in a 2008 referendum, and in Kentucky, which in early March reduced the maximum penalty for possession of less than half a pound from a year in prison to 45 days. Offenders who are considered likely to appear in court and don't do anything to make the police officer who catches them think they're a threat will get a summons instead of being arrested.

Michigan's medical law does not permit dispensaries to provide cannabis to patients, emphasizes Keith Stroup, counsel for the National Organization for the Reform of Marijuana Laws. Nonetheless, the state has at least 150 that do, calling themselves "compassion centers," says Tim Beck, political director of the Michigan Association of Compassion Centers. It has registered 64,000 patients and 25,000 caregivers, and another 24,000 applications are pending.

However, medical marijuana is facing a backlash from Gov. Rick Snyder's administration, and the state is sharply divided regionally. Ann Arbor, Lansing, and Traverse City allow openly run dispensaries, according to Beck, with Ann Arbor's ordinance limiting their number to 20; Detroit and Flint are neutral; and the Detroit suburbs of Livonia, Birmingham, and Bloomfield Hills have banned them. In Oakland County, Detroit's affluent and Republican northwestern suburbs, "the prosecutors and the county sheriff have declared war on medical marijuana," he says.

Beck believes the overall law is safe, though, because Michigan requires a three-quarters majority for the legislature to nullify a ballot initiative, and the Republicans include deficit hawks and libertarians as well as "social conservatives still fighting the Vietnam war." But key state legislators have said some stronger regulations are likely, such as banning on-premises consumption in dispensaries.

In June 2010, the federal Drug Enforcement Administration subpoenaed the records of seven patients from compassion centers in Lansing, as part of an investigation into what it considers drug dealing. State health-department workers refused to turn them over, as the medical-marijuana law makes it a misdemeanor to release confidential patient records, but when Republican Attorney General Bill Scheutte took office in January, he agreed to go along if the workers were immunized against prosecution.

This and other issues are in litigation. Scheutte has also moved to prosecute some patients, accusing them of "attempting to exploit the law to essentially legalize marijuana."
"I'm not going to deny it," says Beck. "It is an interim step to legalization. It's a model for tax and regulate."

In Ohio, Wisconsin and Indiana, the three states whose antiworker legislation has dominated domestic news this year, medical-marijuana bills have been pushed onto the back burner.

In Ohio, three medical-marijuana bills have been introduced, but Ed Orlett, a former state representative now working with the DPA, says it is unlikely they'll even get a committee hearing.

The bills take a "middle of the road" approach, says Tonya Davis of the Ohio Patient Network. They would let patients grow their own herb, but are intended to "prevent the storefronts from popping up."

Davis, a Dayton-area grandmother who suffers from pseudohypoparathyroidism, calcium deposits on her brain, and several other ailments, says the problem with the legislators is they "watched too much 'Reefer Madness' as a kid. Most of it is ignorance. When we get the fear out of it, I think that's when it will change."

Some activists are considering a ballot initiative in 2012, but that would be difficult, says Orlett. Ohio requires 380,000 valid signatures to get a measure on the ballot, and petitioners must also turn in a minimum number from each of the state's 44 counties, most of which are rural. It would cost $3 million to run a serious campaign, he says, and the state's activists don't have access to that kind of resources.

A recent University of Cincinnati poll found that 63 percent of Ohioans support letting doctors prescribe marijuana, notes Orlett, but "there aren't a whole lot of proponents. They're not going to beat the ground and be down here like the public employees did. They don't have the money to print the petitions."

In Wisconsin, a medical-marijuana bill has been introduced in the state legislature for the last several years, but the Republican majority that rammed through measures to eviscerate government workers' unions is unlikely to pass it, says longtime Madison activist Gary Storck. No Republicans voted for it in the last session, he says.

"I think we've established that medical marijuana has the people's support," he says, "but we couldn't have the votes."

Last year, advisory referenda supporting medical marijuana got 75 percent of the vote in Dane County (the Madison area) and 68 percent in River Falls. Local activists plan to push for similar measures, Storck adds, and "we're allying ourselves with the pro-union, and the pro-disabled, against Medicaid cuts."

He thought that Michigan would lead the way for the Midwest, but "we didn't realize the depths of the Republican opposition."

An ironic sidelight to Scott Walker's governorship, Storck notes, is that his two chief legislative henchmen, State Senate Majority Leader Scott Fitzgerald and Assembly Speaker Jeff Fitzgerald, are the sons of former Dodge County Sheriff Stephen Fitzgerald. The elder Fitzgerald was in office in April 1995, when Detective Robert Neuman, in a no-knock raid on single father Scott Bryant's trailer after they found pot stems in his garbage, fatally shot the unarmed Bryant while his 7-year-old son slept in the next room. The county prosecutor found the shooting "not in any way justified," but Fitzgerald returned Neuman--who chaired the county Republican party, and had regularly campaigned for him--to armed duty, saying he'd "suffered enough." A year later, Dodge County settled a civil-rights lawsuit by Bryant's parents for $950,000.

In February, Walker picked Stephen Fitzgerald to head the state police.

In Indiana, however, the state's financial crisis may be opening doors. The state Senate in February approved a bill to study the marijuana laws, including whether pot should be illegal at all, how to regulate it if it were legal, and the fiscal impact of legalization and continued prohibition. Passage in the state House was delayed when the Democrats walked out to block antilabor bills.

"It's a conservative state, so it has to be approached differently here," says Joh Padgett of ReLegalize Indiana. "Nobody would vote for legal marijuana, decriminalization or medical marijuana, but they can vote to study the evidence," adds Steve Dillon, head of the state's chapter of NORML and a veteran lawyer who says he's defended "more marijuana cases than anyone in the state."

Indiana has the third most severe penalties for marijuana possession of any state, says Dillon. Possession of more than 0.1 grams--about $2 worth at top-end prices--can bring a year in jail for a first offense. About half the 16,400 drug arrests in the state in 2007 were for less than an ounce of pot, he adds.

Legislators have been receptive to arguments on both economics and compassion, says Padgett, a former Democratic campaign consultant who says he got "tired of hiding" his medical-marijuana use. There's also "a lot of interest from former tobacco farmers" in growing hemp for fiber--Indiana has lost 90 percent of its tobacco farms in the last five years, he explains, and it has "perfect soil for hemp."

Gov. Mitch Daniels is supporting the study bill, says Dillon, because easing the laws might be a way to reduce Indiana's soaring prison costs. The bill has bipartisan support: Its Republican sponsor is a farmer who suffers from multiple sclerosis and said he would use medical marijuana if it were legal.

Illinois has been spared the far-right takeover, but medical-marijuana and hemp bills have made limited progress. The state Farm Bureau has endorsed legalizing hemp, says Dan Linn of Illinois NORML, but overall, he says, legislators "are afraid of any of these third-rail issues, even if they support it privately."

More action has occurred at the local level. Several municipalities, including the state capital of Springfield, a few Chicago suburbs, and the university towns of Carbondale and Urbana, have decriminalized marijuana, according to Karen O'Keefe of the Marijuana Policy Project. Cook County, which includes Chicago, did so last year, but the measure applies only to unincorporated areas. That means it effectively covers only forest preserves, says Linn.

Illinois averages about 45,000 to 50,000 marijuana arrests a year, he adds. Many cases are thrown out, but people arrested often have their cars impounded.

In Missouri, a bill that would have let nonprofit dispensaries provide medical marijuana to people with "serious conditions" was filed in the state General Assembly in March and got 10 sponsors. "I don't think it's going to pass, but it's important to keep the issue out in public," says Dan Viets of Missouri NORML.

Although a recent poll showed that 47 percent of Missourians support full legalization, he says, activists there don't have the money to do an initiative campaign next year.

Minnesota activists are regrouping after former governor Tim Pawlenty vetoed a medical-marijuana bill in 2009. That bill was so restrictive it would have only helped the terminally ill, says Randy Quast of Minnesota NORML.

Quast, a retired trucking-company executive, became an activist after he called in a burglary complaint and the police who responded busted him for the 2.5 ounces of pot in the safe the fleeing thieves had dropped. As Minnesota NORML only re-formed in January, he says the group needs to get established first, but it will focus on full legalization.

"We don't lock up people who drink, so why should we lock up people who take something safer?" he says. He also wants to work with African American organizations, as the marijuana arrest rate for black Minnesotans is nine times what it is for whites.

West Virginia is promising, says state Delegate Mike Manypenny, a Democrat from Taylor County in the northern part of the state. He planned to introduce a medical-marijuana bill this year, but it got preempted by his efforts to regulate "hydrofracking," the highly polluting process of drilling for natural gas by breaking open the subterranean shale layers that contain the gas.

Medical marijuana could be an alternative to opioid painkillers, says Manypenny, who has used it to relieve the pain of degenerative disc disease. "I grew up on a farm carrying 100-pound bags of potatoes," he explains. With mining, farming and construction its main industries, he adds, the Mountain State's 28-percent disability rate is the highest in the nation, and many elderly people are dependent on prescription narcotics.

"I've had nothing but positive responses from people in the community," he said in March. "I've had four calls today praising me for it. I thought I was going to get a lot more pushback."

Change Afoot in Iowa

In Iowa, longtime activist Carl Olsen has taken a more unusual approach. He is challenging the legal scheduling of marijuana. Since 1970, federal law has put marijuana in Schedule I, drugs with no recognized medical use.

The initial challenge to that law meandered through the federal bureaucracy for nearly two decades. It yielded a quote much beloved by marijuana activists--DEA administrative-law judge Francis Young's 1988 declaration that marijuana is "the safest therapeutically active substance known to man"--but no fruit, as in 1991, the DEA refused to reschedule it.

Later in the 1990s, several dozen medical-marijuana patients filed a class-action suit arguing that the federal government could not deny that cannabis has medical value while simultaneously dispensing it to a handful of patients under a "compassionate investigative new drug" program established in 1976. The judge was initially sympathetic, but ultimately ruled that it was fine for the government to ban medical marijuana as long as it didn't stop giving it to the patients already in the program. (The Bush I administration closed it to new patients in 1992, after it received a few dozen applications from people with AIDS.)

Last November, the Iowa Board of Pharmacy, responding to a lawsuit from Olsen, ruled unanimously that marijuana was a legitimate medicine. The state legislature now has to approve that determination. If it doesn't, Olsen says he might sue.

"The legislature are not experts. The Board is," he says. If its ruling is meaningless, he asks, "where's the due process?"

In the courts, he explains, the law holding that marijuana has no recognized medical use will be judged by whether there is a "rational basis" for it. How can there be one any more, Olsen says, when since 1996, 15 states and the District of Columbia have legally recognized medical marijuana?

Daunting, But Not Hopeless

The lack of legislative progress in many states may look daunting, but that doesn't necessarily mean the cause is hopeless. "A lot of times, you'll see that the effort to pass these bills takes a few years," says Karen O'Keefe. Progress is often measured by a bill gaining a few new sponsors, or making it out of committee for the first time.

Still, on no other issue is the gap between public sentiment and legislative action wider. The Midwest is a "hotbed of activism," says Kris Hermes of Americans for Safe Access, but "the rub is having the legislators see the wisdom and the popular will."

Recent Pew and Gallup polls found 45 and 46 percent support for full legalization among Midwesterners, says O'Keefe, and in Illinois, 68 percent supported legalizing medical marijuana. In Michigan, she adds, the 2008 medical-marijuana initiative carried every single county.

The big Midwestern states share similar political demographics, a mix of multiethnic metropolises, depleted industrial belts and large stretches of farmland. In the last generation, they've voted for both Ronald Reagan and Barack Obama. So what's the political difference between Michigan and its neighbors on marijuana issues? Initiatives, says Tim Beck. If Illinois, Indiana and Wisconsin had initiatives, he contends, they'd have legalized medical marijuana too.

 
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