June 16, 2009 -- Boston Phoenix (MA) The Marijuana Question Is Now The Time To Legalize Pot? By Mike Miliard

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The Obama administration, already overtaxed with two foreign campaigns, made headlines when it waved a white flag in a fight much closer to home. Gil Kerlikowske, the White House's newly minted director of the Office of National Drug Control Policy -- the so-called drug czar -- called for an end to the "War on Drugs."

Granted, Kerlikowske wasn't signaling an intention to lay down arms and pick up a pack of E-Z Widers. His was a semantic shift -- a pledge to abandon gung-ho fighting words and imprisonment in favor of treatment. But it was newsworthy nonetheless. As Bruce Mirken, communications director of the Marijuana Policy Project -- the biggest pot-policy-reform group in the country -- puts it: "Can you imagine [Bush administration czar] John Walters saying that? The Earth would open up!"

It wouldn't be surprising if Kerlikowske's speech was actually a subtle testing of the political landscape surrounding the marijuana question, as we find ourselves, quite suddenly, at a pivotal moment in the push for pot legalization. The horrific violence of Mexican cartels, which make perhaps as much as 75 percent of their money from marijuana (in Arizona Attorney General Terry Goddard's estimation), has started ebbing across our Southwestern borders. The budget meltdown in California has led state pols -- even, once unthinkably, GOP governor Arnold Schwarzenegger -- to reconsider the tax revenues ($14 billion, according to Time) that could be harvested from the Golden State's biggest cash crop. Politicians, no longer confined to the left and libertarian right, are increasingly willing to say that legalization makes sense.

Nearly every day offers another object lesson in the merits of marijuana reform. And the American people seem to be noticing. At least four polls in the past three months have shown a greater uptick in the public's receptiveness to legalization than ever before. One Zogby poll released last month found that 52 percent felt pot should be regulated and taxed. Among the more than 13,000 questions submitted to President Barack Obama's online town hall in March, the Los Angeles Times reported, the top six questions in the "budget" category had to do with legalizing and taxing pot (thanks in part to prodding from groups such as NORML, the National Organization for the Reform of Marijuana Laws).

So far, the president -- who supported decriminalization when running for Senate in 2004, but not when running for president in 2008 -- hasn't exactly been a profile in courage. (His answer, at that town hall, to the question of taxing marijuana was wincingly flippant.) But that may not matter all that much. "Obama is against gay marriage, at least nominally, yet that issue is moving forward, too," statistician Nate Silver, founder of fivethirtyeight.com, told me. "Once one state does something, then other states start to think about it."

Even if Obama isn't yet bumping Pineapple Express to the top of his Netflix queue, then, this much seems clear: The thoughtfulness he's brought to Washington -- zealots out, pragmatists in -- is evident. And suddenly, whether his fingerprints are on it directly or not, "change" may be more than just a buzzword.

As seen in a steady spate of headlines over the past six months, we're talking about the failed drug war and the ever-widening patchwork of individual state laws with a measure of honesty and common sense that's not been heard since the 1970s.

None of which is to say the trend is inexorable. But this may be the moment. If we don't see an end to marijuana prohibition in the next decade or so, it's reasonable to say that there's a fair chance it'll never happen. And that, as some are wont to say, would be an enormous harshing of one's mellow.

Yes We Cannabis

In the '70s, as a member of the Massachusetts House of Representatives, Barney Frank filed a bill that sought to allow possession and use of small amounts of marijuana. It went nowhere.

Then last April, as a U.S. congressman, he co-sponsored, with Ron Paul, the Personal Use of Marijuana by Responsible Adults Act of 2008, which would have lifted federal penalties for possessing 3.5 ounces or less. That bill never made it to committee. This past month, though, Frank and Paul introduced another bill that did reach the committee stage, the Industrial Hemp Farming Act of 2009, which would end the ban on cultivation of non-psychoactive hemp.

"I think people have gotten more skeptical of government intervention," says Frank. "And I think people have seen the ineffectiveness of the all-out-war approach to all this. Third, we have concerns about the costs, about overcrowded prisons and overstretched law enforcement. So I think things are moving. But the basic thing is that Americans are better understanding now of personal freedoms."

"A lot of things are being put on the table that people couldn't imagine until just recently," says Ethan Nadelmann, founder and executive director of the Drug Policy Alliance, which seeks an end to the worldwide war on drugs. "I would not have predicted five months ago that we'd have this explosion of sentiment. I'm stunned."

Mirken, too, is cautiously optimistic that we may be laying the groundwork for substantial progress. "We'll know for sure five years from now," he says. "But there's certainly much more intense interest in and discussion of whether our marijuana laws make any sense than I've seen since I was a kid -- i.e., when Nixon was president."

Indeed, back in the heydaze of Cheech and Chong, the prospects for legalization looked promising. "There were a bunch of states that passed decriminalization statutes in the '70s," says Mirken, including New York, Colorado, and even Mississippi. "Then basically everything ground to a halt in the Reagan era. The pendulum had swung in one direction in the '60s and '70s and then swung back."

It may have swung back yet again -- perhaps for good this time. "Back then [in the '70s, pro-legalization] public opinion never topped more than 30 percent," says Nadelmann. "And there was a whole generation that didn't know the difference between marijuana and heroin. Now, support is topping 30 percent nationally."

"We're not yet there, but look at the number of states who voted for medical marijuana," says Frank. "Then you had the referendum in Massachusetts last year over the objection of almost all law-enforcement people. There is movement."

The Green Economy

"Rock Band" enthusiasts with bongs aren't the only ones taking note. More than 40 percent of Americans have tried marijuana, according to the National Institute on Drug Abuse. By NORML's tally, as many as 15 million people smoke at least once a month. That's a pretty substantial market, and one that could bring in a goodly amount of tax revenue -- a fact that hasn't been lost on those seeking rational solutions to our nation's financial woes.

"When you're staring at the sort of budget deficits that governments at all levels are looking at right now, that clarifies the mind a great deal," says Mirken. "And it does, I think, begin to strike people as pretty absurd that we have this huge industry that is effectively tax exempt!"

California assemblyman Tom Ammiano made news in February when he introduced a bill that would essentially treat pot like alcohol: legalize it, tax it, and allow adults 21 and over to purchase and use it. Soon after, the state's Board of Equalization announced that the bill's proposed levy of $50 per ounce could put as much as $1.3 billion a year into government coffers.

"I think it's not time for that," Schwarzenegger said in response. "But I think it's time for a debate."

"He's far and away the highest-placed politician in recent memory who's dared to broach the subject at all," says Harvard economist Jeffrey Miron of Schwarzenegger. "He said, 'I'm not in favor of it, but let's discuss it.' Well, why are you gonna discuss it when you're so sure it's a bad idea? He clearly does think it might be a good idea."

Miron is the author of a 2005 study titled "The Budgetary Implications of Marijuana Prohibition." In it, he looks at the money that could be saved by local, state, and federal governments by the cessation of prohibition, and that could be gained by taxing pot at rates comparable with those levied on other vices.

"Overall, my numbers are something like $12 billion would be saved from not enforcing marijuana laws," says Miron, "and $7 billion could be collected in revenue, assuming it's taxed at something like the rates on alcohol and tobacco."

The numbers are "not totally trivial," he concedes. "But when we're looking at a $1.84 trillion deficit, a net of $15 to $20 billion seems like a rounding error."

For that reason, he doesn't foresee legalization for tax revenue alone. "I think that would be a reinforcing effect, but I think there's got to be more of an attitude [shift] that, if people can do something without harming other people, it shouldn't matter what that thing is. I think if people don't feel comfortable with it for some broader perspective, $15 billion isn't going to change their minds."

Muy Caliente

If dollar signs don't convince the anti-pot lobby, then how about the fact that Mexican drug cartels are appropriating public land in Western states to grow bushels of marijuana? Or the fact that ever more U.S. officials, from Homeland Security Secretary Janet Napolitano to Joint Chiefs of Staff Chairman Mike Mullen, are fearing spillover of the cartels' grisly violence -- more than 6,000 murders last year -- into Tuscon and El Paso?

"If drugs were legal, that would not be happening," says Dan Baum, whose 1997 book, Smoke and Mirrors: The War on Drugs and the Politics of Failure (Back Bay), is considered one of the best chronicles of the drug war's litany of failures. "It's a misapprehension of the truth to say that the violence in Mexico is because of American appetite for drugs. It's not the appetite for drugs -- it's the prohibition that's causing the violence."

Certainly, these cartels traffic in some very bad stuff: heroin, methamphetamine, cocaine. But, says Nadelmann, "half of the Mexican drug gangs' revenue comes from marijuana. Legalizing marijuana is a pretty powerful way of depriving these gangsters of revenue -- the same way we took Al Capone and those guys out."

Prohibitionists are at a loss for a coherent argument when it comes to the cartels, argues Mirken. "They'll say really dumb things like 'Legalizing marijuana isn't going to make these gangs turn into law-abiding citizens.' No, of course not! It will make them irrelevant! Just like you don't need bootleggers when you have Anheuser-Busch."

More and more credible people are echoing the sentiment. In January, Arizona Attorney General Goddard opined that legalization "could certainly cut the legs out of some of these criminal activities." In February, former presidents Ernesto Zedillo Ponce de Leon of Mexico, Fernando Henrique Cardoso of Brazil, and Cesar Gaviria of Colombia gathered at the Latin American Commission on Drugs and Democracy and called for decriminalization, decrying the fact that "current policies are based on prejudices and fears and not on results."

Former Mexican president Vicente Fox put it plainly: "I believe it's time to open the debate over legalizing drugs."

That debate, at least, is happening in earnest. What it leads to is another matter. In the meantime, says Mirken, "We are effectively subsidizing these horrible Mexican gangs by handing them the marijuana market."

Poll Position

Of course, it's not just Mexican presidents who are honest about drugs. American ones can also be pretty, er, blunt. "I inhaled frequently," then-candidate Obama admitted last year when asked if he had ever smoked pot. "That was the point."

To see how far we've come, consider the fact that, just 17 years ago, candidate Bill Clinton felt compelled to fudge his answer to that same question with his own infamous equivocation. Or that, 22 years ago, Douglas Ginsburg's admission to smoking pot cost him a Supreme Court seat.

People are much more comfortable with the idea of smoking marijuana than they once were. The media may have brewed up a tempest in a teapot when Michael Phelps was photographed with a bong held to his lips, but most Americans couldn't give a fig.

"I do think it's begun to sink in for people now that the last three presidents have smoked marijuana," says Mirken. "As has the governor of California, the mayor of New York City, the guy [Phelps] who's won more Olympic gold medals than anyone on the planet."

Meanwhile, more and more people polled are comfortable expressing pro-legalization sentiments. "We've seen the numbers jump quite dramatically in the past six months to a year," says Nadelmann. "It's really quite something."

In February, Silver looked at the results of three polls (Rasmussen, CBS, Zogby) on fivethirtyeight.com, each of which found 40 percent or more of respondents supporting legalization. That "may be significant" he allowed, but cautioned against over-exuberance.

"On issues like this, yes, there are trends, but they're not necessarily inevitable," he says now. "If you were looking at the world in the 1960s, you may well have guessed that, by 2009, you'd be able to smoke pot legally."

But that didn't happen. After the '70s came the '80s. A crack epidemic. A crime wave. Nancy Reagan and "Just Say No." Moods can change. And if the pot issue moves unduly forward, wonders Silver, "Will the Republicans try to create a backlash on that and say, 'We've gone too far?' I think it's not totally out of the question, if the economy stays in the dumps for a period of months or years," he adds, "that the crime rate may increase again and that may work against legalization and harm that momentum a bit."

But generational shifts happen. And now, with most people under the age of 65 probably at least familiar with the pungent smoky odor, the trend should continue toward increased acceptance. Writing on fivethirtyeight.com, Silver predicted that "we'll need to see a supermajority of Americans" favoring legalization before politicians would be emboldened enough to press the issue.

He crunched the numbers and figured that, assuming the trend kept heading northward, we could reach 60 percent or so sometime in the next 13 years, predicts Silver. "I feel comfortable with 2022."

Trapped In The Closet

In the past decade and a half, 13 states have legalized medical marijuana, a steady drip that is somewhat analogous -- in its suddenness and once-seeming-improbability -- to the snowballing momentum of gay-marriage rulings over the past several months.

"There's a powerful analogy between the gay-rights movement and the marijuana-law-reform movement," says Nadelmann. "Part of it is about a principle -- that people should not be punished for what they do in their own home or their own personal lives. The other point is that there's an element of 'coming out' that is pivotal to the whole process of decriminalizing and ultimately legalizing the behavior."

Atlantic writer Andrew Sullivan has done a fine job of hammering this point again and again over the past couple months on his blog The Daily Dish (andrewsullivan.theatlantic.com), both with his own thoughtful analysis and in a series of posts tagged "The Cannabis Closet," in which he publishes mostly anonymous responses from his readers. "Contract manager with a government agency [and] Treasurer for the PTA" one describes himself. "If I got busted, I'd lose a lot," writes another.

"I truly believe that if marijuana users felt as emboldened to come out as gay and lesbian people did some years ago," says Nadelmann, "marijuana prohibition would come crashing down very quickly." The problem is that "it's hard to get people to come out of the closet about something that does remain a crime."

There are "millions of Americans who smoke marijuana for whom it's not a problem, who are part of the middle class, who are well-off, who are role models," says Mirken. Most people know this. Yet still the caricature persists of the feckless stoner, slack-jawed and speckled with Pringles crumbs. As long as the sorts of people who write into Sullivan's blog can't come out and correct that stereotype -- -- as Mirken says, "The only people who end up coming out are the ones who show up at the hemp fests and get in trouble" -- the battle for wider acceptance will be a hard slog.

Slowly, state by state, that may be changing. One Massachusetts reader e-mailed the Daily Dish to say that the Bay State's recent decriminalization "has also allowed me to 'come out' publicly as a smoker. When I go out for drinks with co-workers and they comment on my lack of drinks, I simply say that I prefer marijuana because it's less debilitating (at least for me). This still takes people aback a bit, but they'll get used to it."

Or Get Off The Pot

Whether our representatives in Washington will be brave enough to embrace this emerging political sentiment remains to be seen. "While in general I don't think the criticism that 'Politicians are lagging the public in enlightenment' is accurate," says Frank, "I do think it's true in this case."

Does he wish his colleagues in the House and Senate would be more outspoken? "Oh, of course. But I wish I could eat more and not gain weight. I wish a lot of things."

Because of their clear majority and Obama's abiding popularity, the Democrats may now be encouraged to move swiftly on everything from health care to the environment. But it seems true, so far, that few are inclined to start singing Peter Tosh songs. "They're in power now, and they feel like they have a lot to lose," says Silver. "The Democrats are gonna be reluctant to spend a lot of political capital on it -- especially at a national level."

Nonetheless, Nadelmann reports of his private meetings on Capitol Hill, "in frank conversation, the willingness of members of Congress to say, 'Of course you're right, of course this makes sense,' is growing. Before, they'd be scared to say it."

As for help from the White House, don't count on it -- yet. Sullivan called Obama's guffawing dismissal of the pot question at that online town hall "pathetic." ("I'm tired of having the Prohibition issue treated as if it's trivial or a joke," he wrote. "It is neither.") But others have suggested that timing is everything.

"I think partly it needs a term-limited president," says Miron, who believes the only reason Schwarzenegger feels intrepid enough to broach the subject in California is that he's a lame duck. He says he could envision Obama taking the reins on the issue "at a minimum, in the middle or at the end of [his] second term, assuming he gets re-elected."

Until then, we can take solace in politicians like Senator Jim Webb, a Democrat from Virginia, whose bold and sweeping prison-reform bill, the National Criminal Justice Commission Act of 2009, was introduced in March. Calling our jails a "disgrace" -- and noting that the number of incarcerated drug offenders has increased 1,200 percent since 1980 -- Webb has in the process become one of the highest-profile politicians to signal his openness to marijuana legalization. "Nothing," he's said, "should be off the table."

Adds Frank: "I guess it's better to be on the table than under the table."

Reefer Madness

Marijuana abuse does carry some health risks, after all. There are plenty of law-and-order types out there who simply believe, as "South Park"'s Mr. Mackey says, that "drugs are bad, mmkay?"

"Marijuana prohibition is a powerful drug in and of itself, and one to which we are heavily addicted," says Baum. "Marijuana [illegality] has tremendous political power, and I think we're going to give that up very reluctantly.

"Cops love [pot prohibition]," he continues. "Pot smokers and pot dealers don't shoot back; they're easy to bust and you get all this money from the Feds for drug prohibition. Schools like it because it gives a concrete bit of evidence you can use to get rid of and isolate and punish a troublesome or rebellious kid. When you start peeling it back, marijuana prohibition serves a great many powerful interests."

Indeed, the "drug-war industrial complex is not to be sneezed at," says Mirken, who points out that the pushback has already started. "Marijuana potency surpasses 10 percent," the headline of an alarmist cnn.com article warned a few weeks ago.

In January, before he withdrew his name from consideration for surgeon general, CNN's Dr. Sanjay Gupta penned an op-ed for Time titled "Why I Would Vote No On Pot." In it, the neurosurgeon argued that the damage marijuana might do to one's lungs or short-term memory essentially outweighed the fact that "permissive legalization, accompanied by stringent regulations and penalties, can cut down on illegal-drug trafficking and make communities safer."

Even liberal blogger Matthew Yglesias (yglesias.thinkprogress.org), while receptive to decriminalization, confessed to fearing "the creation of a legal marijuana industry with lobbyists and advertising aimed at creating as many problem pot smokers as possible." Light UP at the end of the tunnel

Certainly, some of these fears may have merit. Just as certainly, the pro-pot side has plenty of valid points of its own. So let's hash it out.

"One of the most hideous things about the drug war is not only the imprisonment, and not only the civil-liberties [violations]," says Baum. "It's the way it shut down debate. It created forbidden speech in the U.S. And I am delighted to see that changing."

"It feels like a sea change," says Nadelmann of the past six months. "The credibility and stature of the people speaking out. The reception we're getting from legislators. The interest of the media."

At the same time, however, he's well aware that "it's a little like surfing: we're riding a wave right now like we've never seen before. That wave's gonna crash, things will quiet down, we'll be way ahead, and then we'll have to ride the next wave."

Ultimately, whether it's in 2016 or 2022 -- or even sooner -- the endgame of pot advocates is to abolish federal prohibition, just as was done with alcohol in 1933, and to allow states to draft their own laws -- whatever they may be.

"That may mean that Mississippi stays dry for another 30 years, as was the case with alcohol," explains Nadelmann. "It may mean that California or Nevada allow marijuana to be sold 'round the clock in corner stores. And it may mean that some other state allows marijuana to be sold legally, but only in the equivalent of the New Hampshire or Utah state-licensed liquor outlets."

It's important to keep pressing the issue. Crawford notes that he and his fellow activists have been redoubling their efforts lately. Otherwise, he says, there's no telling when "this window may be gone." And as anyone forced by prohibition to smoke on the sly knows, it's best to keep the window open.

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