Drugs and the Nation

In an election whose outcome was determined by militaristic, theocratic culture warriors, medical marijuana in Montana was one of the few bright spots.

Even as 59 percent of the state's voters were going for George W. Bush and two-thirds opting to ban gay marriage, Montanans were approving Initiative 148, which would allow medical marijuana use by patients with a doctor's recommendation, by a 62-38 percent margin.

Two further-reaching state drug initiatives lost. Alaskans rejected a proposal to legalize marijuana under regulations similar to alcohol, by a 57-43 percent margin, and Oregon defeated a measure to expand the state's medical marijuana law by 58-42. The number of people voting against the Oregon initiative – which would have set up state-licensed medical-herb dispensaries, so patients could obtain a legal supply – almost exactly matched the number who voted to ban gay marriage.

Three local initiatives won. Oakland, Calif. voted to make adult cannabis offenses the lowest priority for the city's police. In Ann Arbor, Mich., where pot possession already carries only a $25 fine, voters approved an initiative to legalize medical use and reduce the penalty for third-offense possession or sale to a $100 fine. (Detroit voters passed a medical marijuana measure in August.)

Another college town, Columbia, Miss., enacted two pot proposals, one to legalize medical use and one to decriminalize possession of up to 35 grams. The decrim measure will reduce the penalty to a $250 fine and require police and prosecutors to take pot-possession cases to municipal courts, where it will be a minor violation, instead of to state courts, where it remains a criminal offense.

The moral: There is still substantial support for liberalizing the nation's drug laws, but proposals that push drug law reform too far or too fast are risky, and support is strongest in urban and countercultural enclaves.

Paul Befumo of the Montana Medical Marijuana Policy Project says the initiative there succeeded because it was a libertarian, common sense issue.

"The idea that medical decisions should be between a person and their doctor really resonated with Montanans," he explains. "We made our case." People who have had relatives with serious illnesses, he adds, "really get it."

The main arguments opponents raised were that it would send a bad message to children about drugs and that separating medical and recreational marijuana would be a law enforcement nightmare.

The Oregon initiative's biggest problem was it was underfunded, says John Sajo of Voter Power in Portland: They had a budget of $600,000 to reach about 1.7 million voters. "I think that if we had three or four million we would have won."

The initiative, intended to help Oregon's 15,000 registered medical marijuana users get a legitimate supply, was also far-reaching. It would have let users growing outdoors have one 6-pound crop a year, given free cannabis to indigent patients and allowed naturopaths and nurse practitioners to recommend medical marijuana.

That, says Sajo, opened the initiative up to "lying and distorting" by opponents, who called it "legalization in disguise" and said it would make the state a haven for drug dealers. Bill O'Reilly on Fox News claimed the measure would let shamans from the Amazon set up shop in Oregon. Some legalization supporters also opposed the initiative on the grounds that it would get the state too involved with marijuana patients.

If cannabis legalization advocates have to portray responsible drug use in order to succeed, prohibitionist propaganda remains extremely potent when it collides, even marginally, with reality. In the 1930s, Harry Anslinger made Victor Licata, a Florida pothead who killed his family with an axe, his poster boy for marijuana prohibition – and the Alaska initiative campaign, which emphasized alcohol-style regulation, was damaged by an eerily similar murder case.

On Oct. 21, 16-year-old Colin Cotting of Anchorage was arrested and charged with beating his stepmother to death and stuffing her body in a freezer after she confronted him about being high. Police said Cotting told them he was "too stoned" to remember much about what happened. Nevada's 2002 legalization initiative failed under similar circumstances; two months before the election, the managing editor of the Las Vegas Sun was killed when a stoned driver rear-ended her car at a red light.

The Alaska initiative still got a respectable 43 percent of the vote, and marijuana possession remains legal there under state Supreme Court decisions from 1975 and last August. Gov. Frank Murkowski and Alaska's attorney general will now probably try to enact a cannabis ban that doesn't violate the state's constitutional right to privacy, says David Finkelstein, a former state legislator who headed the initiative campaign. To do this, he says, they will have to prove that marijuana is more of a danger than the court said it was.

Paul Armentano of NORML suggests that activists should turn to doing local initiatives, which are easier to organize, cost less, and can be done on friendlier turf. Oakland definitely fits that last criterion; the city's cluster of medical cannabis dispensaries has been nicknamed "Oaksterdam."

"We didn't have to do a lot of work," says Judy Appel of the Oakland Civil Liberties Alliance. "The people of Oakland support this." With endorsements from Rep. Barbara Lee and state Senate Majority Leader Don Perata, Measure Z won with 64 percent of the vote. It remains to be seen whether the city police will not bother pot smokers, but the measure sets up an advisory board to establish guidelines. Local initiatives, adds Appel, are a crucial model for alternatives to the war on drugs.

Columbia, home to the University of Missouri and two other colleges, is also culturally sympathetic territory. It backed pot decriminalization by a 61-39 margin, and also voted overwhelmingly to require the city government to start using alternative energy sources for electrical power. A similar decrim measure lost in a special election last year, but in a general election, says Dan Viets of Missouri NORML, "we didn't have to get people out, we just had to persuade them."

A key issue, he adds, was that moving cannabis cases to municipal court will protect students from losing their financial aid under the federal Higher Education Act, which denies college funds to people with drug convictions. The initiative also benefited from a 70 percent increase in the number of registered voters between 18 and 24 in the last two years.

Bruce Mirken of the Marijuana Policy Project, which financed much of the Alaska, Oregon and Montana campaigns, sees a bright spot in Vermont, where a strong grassroots campaign helped defeat the three "most hardcore opponents" of medical marijuana in the state legislature.

Still, drug-policy reformers now have to face another four years under a president whose political base is among puritanical cultural warriors. When Bush took office in 2001, many in the movement, at least among those who hadn't lived in Texas while he was governor, expressed hope that he would approach drug issues as a "compassionate conservative," or better yet, reveal a libertarian streak and pull a "Nixon goes to China."

That proved to be severely wishful thinking. Bush made medical marijuana a top law enforcement priority, sending SWAT teams to jail the Californians who dared defy Schedule I of the Controlled Substances Act and flooding the airwaves with ad campaigns conjuring the specter of pot smokers financing terrorists and stoned teenagers accidentally shooting their best friends. ("Hey man, it's loaded! "Kewl, dude!") The Bush campaign advocates increasing drug testing of high school students, federal drug czar John Walters' pet cause. (Meanwhile, John Kerry offered extremely muted, tepid support for medical marijuana.)

Mirken tries to remain optimistic, saying that if Bush wants history to see him as "a uniter, not a divider," medical marijuana would be a good place to start, and the Montana results indicate it wouldn't hurt him with his base. On the other hand, he says, "there's absolutely no indication they plan to change. They can make life very miserable for a lot of sick people. Patients and their supporters may have to hunker down for a very rough four years."

"Culture war is not our biggest problem," says John Sajo. "I think we could legalize marijuana if our constituents actually made up a movement." The biggest problem, he believes, is the "complacency and apathy" of the nation's tokers. The decriminalization movement is now funded largely by a handful of wealthy benefactors, because "the average pot smoker doesn't have the consciousness that they have to pay for it," he says. "If every pot smoker donated half of what they spent on marijuana, we'd have a war chest in the billions."


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