The Importance of Washington's Legalization Initiative I-502
My declaration in my previous blog that activists who oppose the legalization initiative on the November ballot in Washington State are acting foolishly and counter to the interests of our movement provoked a reaction, not unexpectedly.
So I am writing about I-502 again.
In a perfect world, devoid of politics and where the rules of conduct in society are determined by principles of liberty and the full autonomy of the individual, the ideal circumstance for us would be where the governments of Mexico, the United States and Canada all strike marijuana and all controlled substances from the Controlled Drugs & Substances schedule.
In that ideal world, there would be, in fact, no regulatory regime of any kind governing what adults (adults being defined as independent, autonomous, self-sufficient entities making their own decisions – that is, not living at home under the largesse and responsibility of parents) can do with their bodies or their mind, limited only by the caveat that their actions be peaceful, honest and consenting.
That, to me, is the long-term goal that I have pursued politically as a libertarian for 33 years: to advocate whatever measures can lead us in the direction of greater liberty and individual autonomy. We live in a world where we have inherited a very imperfect and corrupted democracy, and where politics, not reason or principle, determine the landscape by which we are legally judged for our actions.
I have run for elected office 12 times from 1980 to 2009, not because I believe politics is legitimate (it isn't), but because as a practical matter of self-defense I have to articulate the vision of a proper social system that my fellow citizens can embrace, and, over time, advocate and agitate towards in whatever peaceful way possible that our times allow.
In truth, in my lifetime, politics has not liberated us nearly as much as technology and science. What defeated censorship was instantaneous electronic communication like the internet and smartphones. What defeated 'blue laws', restricting when stores can retail, was 24-hour online shopping. What defeated laws prohibiting explicit sex depictions was VCRs, then DVDs, then the internet. Gambling happens on the internet, largely neutering gambling restriction laws. RU-42 pills make an abortion available bypassing government control. Most government prohibition attempts have a technologically liberating response. That is how the seed revolution I started, to 'Overgrow the Government', succeeded. It made the mass dissemination of cannabis genetics possible using modern mail and the internet.
Politics, and the process of government control of the people, is a corrupt and discredited holdover of the past, and people are extremely cynical about it – young people especially. In Canada and the US we have dysfunctional democracies where a majority of citizens want marijuana legalized, but almost no representation in the Parliament or Congress or White House work to make that happen. The most suitable act to end the prohibitions in all three countries would be to end the scheduling of drugs and let individuals decide what to put in their bodies. This would draw to an immediate close the illegal drug markets, the cartels, gangs, SWAT teams, most police forces, most prisons, the narco-corruption of governments, the tens of thousands of killings, the lucrative profits, the tragic waste of our resources, the criminal records that over 25,000,000 living North Americans have for a drug conviction.
Prices for all these substances in a legalized world would no longer drain us of our personal finances nor our tax payments, and those who want marijuana or other drugs would no longer consort with, join, or subsidize organized gangs; the streets would be safer; there would be more money for medical care, hospitals, doctors, education, and much less taxes needed for prisons, police, militaries, border guards, Homeland Security, the surveillance apparatus, SWAT police, courts, sheriffs. Fewer people would be on welfare, vastly fewer people would have guns and criminal records.
In short, the lives of everyone on the planet would be perceptively improved immediately upon ending prohibition, and would continue to improve as the grim specter of prohibition receded. Once the cancer of prohibition, the greatest policy disaster in the history of humankind, ends, restoration of human dignity, choice, public safety, the credibility and effectiveness of our institutions would transpire. The effect would be revolutionary, making the world of the post-prohibition future unrecognizable to our sadly failed world today.
To repeat: It would be the greatest boon in the history of humankind, for every one of us on planet Earth, to end the prohibition and the pernicious drug war that flows from it.
But because of politics, it does not happen.
Instead, those who care, and are aware (and we are gaining in numbers and influence every day), must participate in this corrupt political arena and seek out directional improvements to the sordid status quo. The most we can accomplish in this system are tiny, incomplete, hardly-satisfying steps that take us only fractionally toward the ultimate ideal of a prohibition-free society. And even that is tough work, and very rarely does it happen.
So I rejoice when, for example, my friend and esteemed lawyer Kirk Tousaw spends months in a Canadian courtroom to have a judge, over a period of years in the making, declare that, "Yes, a Canadian with a medical marijuana exemption card can indeed possess cannabis infused cookies as well as dried marijuana legally." Tiny little victories, and but a tiny bit more freedom for just a few. Not even freedom for many, but a few. A lot of work to achieve, in the big picture, a little bit more liberty. But what other choice does Kirk have? Should we all sit around and wait for a perfect world to exist before we support small steps towards that perfection? Of course not.
We did try, indeed, to have the entire marijuana prohibition struck down in court in 2003. I was largely responsible for funding the 2003 David Malmo-Levine challenge in the Canadian Supreme Court, to strike down marijuana prohibition, but we lost, the Justices voting 6-3 against us. The three francophone (French) judges were with us, and said, clearly, marijuana prohibition is unconstitutional. The six Anglophone (English speaking judges), the bastards, all ruled against us, saying "marijuana consumers have no more a constitutional right to cannabis than cannibals have a constitutional right to practice cannibalism"! (I kid you not, they did indeed write that). We can't get a re-do in the Supreme Court. So we have to chip away at the edges of prohibition.
In British Columbia, 68% of citizens want legalized marijuana. Four former BC Attorneys-General have come out saying legalize marijuana. Eight current BC Mayors say legalize marijuana. Four former Mayors of Vancouver said we should legalize marijuana. The entire 10 members of Vancouver city council recently voted to endorse ending marijuana prohibition. "So what does it take to get 'er done?!" you ask? Secede from Canada and declare British Columbia sovereign? I mean, at what point do politicians, our political representatives, acknowledge this and act on it? And if they fail to act on it, why?
The scourges of prohibition – and there are dozens of toxic byproducts that emerge from drug wars and prohibition – are SO obvious, the only reason politicians, one would conclude, maintain the prohibition is because they are totally with the gangs, cartels, and the other violent, murderous prohibition profiteers. Those who support prohibition are fully aware of the tragic consequences of this insidious policy, and yet, they fully endorse it. They prop up the gangsters and the control/prison/punishment complex despite the brutal harm caused to billions of people on earth.
Is there any greater definition of evil?
The need for systemic revolution is great. And yet, all we can do is chip away at this grotesque injustice by tinkering at the local level, the state and provincial level, by writing our Congresspeople and Parliamentarians (admittedly in a largely futile expense of effort), by educating, by going to rallies, and, if motivated suitably, by voting. It’s essential to participate in this horrible, inefficient, disappointing, corrupt, unsatisfying, frustrating democratic process. Simply because we must. To disengage from the political process is not an option, because it surrenders the system to the exploiters and demagogues who by and large have far too much influence now.
In British Columbia we have a 'Sensible BC' campaign coming up, where 350,000 signatures must be gathered in a period of 90 days to put on the September 2014 ballot, in a special referendum, an initiative stating no taxpayer money will be spent in BC on the arrest, jailing, prosecution, investigation of any person involving the possession of marijuana. (Currently 3,583 people in BC every year are charged with marijuana possession – that’s ten every day in a province of 4.4 million people, the highest possession arrest rate in any province in Canada.)
It's an enormous, almost impossible threshold of signatures to gather in 90 days. A staggering amount of people will need to gather signatures in such a short time for what is surely a very modest proposal. Paid signature gathering is not permitted under the legislation governing referendums. There is no federal referendum process in Canada where we can challenge the federal law that perpetuates the nationwide prohibition; this is true also for the US federal government.
The wording of a state initiative is a very tricky thing. It must be worded so that the legislation sought is constitutional under state law. It must be politically weighted to attract at least 50% of the voters who vote on that day. It must appeal to a broad cross-section of voters, those directly affected, and those indirectly affected. It must have adequate safeguards to quell the vitriol of opponents who may be expected to oppose the initiative. For a principled person to support the initiative, it must extend liberty to the people in a greater degree than currently exists.
Washington State's legalization initiative I-502, by New Approach Washington, provides that hundreds of retail outlets currently selling alcohol in the state will be legally authorized to sell legal cannabis in quantities up to one ounce at a time per adult 21 years of age or over. Those adults, 21 to 100 years of age (and older), can possess and transport it. Producers of the cannabis provided to these hundreds of outlets will be from Washington State licensed growers. There will be taxes added on top of the retail price.
Most people in the cannabis community would find these provisions a positive step forward, and many in the non-toking community will too. Important questions do remain, such as, will the retail price be low enough to discourage people from growing and selling their own? Will the price be low enough to discourage black market dealing? How will producer licenses be issued?
The most controversial aspect of this proposed legalization legislation is the proposed statute that says driving a vehicle with over 5 nanograms of active THC in the system is a DUI offense. Police would require one of the three elements of probable cause to take a blood sample: 1) cannabis smoke, 2) impaired or dangerous driving, or 3) being involved in an auto accident. For an explanation of what the DUI provisions mean, see the I-502 DUI fact sheet here: http://www.newapproachwa.org/content/faq
In Michigan, the Court of Appeal there on April 17, 2012 ruled that the state had a 'zero tolerance' for any THC in the system of any driver called on to provide a blood sample, in the case of an accident investigation that prompted the appearance before the court. The defendant in the case had a Michigan medical marijuana card and the court ruled that nonetheless it was considered impairment to have any active THC in his system.
In British Columbia, police can take a blood sample at any time they consider a driver impaired; probable cause includes dangerous driving, being involved in a car accident, and the smell of burned marijuana in the vehicle. Now, despite the law permitting this, blood samples are rarely taken – and mostly at accident scenes, if ever. DUI punishments are severe in British Columbia for a first offense, resulting in loss of drivers license for three months, impounding of vehicle for one month, counseling for a year, and a breathalyzer-tester-for-ignition device installed at the expense of the driver once his vehicle is out of impound. The expenses involved in the first DUI add up to around $4,000!
So the 5 nanograms/per milliliter threshold in I-502 is broadminded by comparison, and provides a window of driving opportunity for anyone who hasn't smoked in six hours. Bear in mind that the law, right now, does not allow anyone to drive while smoking cannabis. So this DUI provision is no worse than what already exists, and in fact, the rest of I-502 is tremendously better than what already exists in law.
It's possible or likely any legalization initiative that passes would be subject to being pre-empted by the Washington DC federal government. But that does not mean we should refuse to support an imperfect law. Opponents of I-502 say the federal government won't allow I-502 to happen and that's reason to not support it, but that is no different than saying that any legalization initiative is not worth supporting because the federal government won't allow it to happen. Do they think that a 'better', less restrictive initiative wouldn't be pre-empted by the federal government? Of course not. That pre-emption argument is a very poor reason to oppose I-502.
In November, the only initiatives that provide this huge leap forward are Washington state and Colorado, with Oregon very close to also getting a legalization initiative on the ballot. These initiatives, if passed, put huge pressure on the federal government – and there is, ultimately, no other alternative. These initiatives force a confrontation between the lawful process of the state initiatives and the intransigence of the federal government.
I-502 provides for a retail infrastructure that would be more accessible that any other system in the world. Even in Amsterdam, you can legally buy no more than 5 grams of cannabis at a time; I-502 would allow an ounce at a time to be purchased. (And beginning next year, Netherlands law forbids the sale to foreigners, though this is expected to be flouted. But in law, foreigners will have no legal protection. In fact, it still isn't legal in the Netherlands to possess marijuana; it's merely tolerated.)
Under I-502, it's not considered a violation of state or local law to possess up to one ounce of marijuana, and the state will be the agency of distribution in hundreds of outlets throughout the state. You'll be able to legally buy marijuana, legally transport the weed home, and legally possess and consume it. That is incredible, and there is no other place on earth that has legislation like that in place.
Because it will be a legal substance, it can be smoked without stigma, and the threat of dismissal from work if you are known to have smoked marijuana (Facebook photos, staff parties, etc.) evaporates. Because it would be legal, state prisoners would no longer be considered to be violating their parole, probation or bail conditions if in possession or testing positive for THC (for federal prisoners, it may still be a violation). Because it would be legal under state law, cannabis use couldn't be used against a mother or father in a custody dispute.
All production to service the hundreds of I-502 legal outlets would be legalized and licensed, the price over a short time would drop, and the varieties over time would be widened and varied. Newspapers would be reviewing all the different legal strains of cannabis on sale, just as wines or beers are reviewed.
Because legalization at the state level will remove the stigma, we can foresee that university students, who tend to dangerously binge on alcohol, will use more cannabis, since whenever they buy alcohol, the cannabis will be available at that location too. No more loss of student financial aid because of a cannabis conviction.
There are about 10,000 arrests in Washington State annually for possession; this will end. For minorities, mothers, college and university students, those who use public transit, those who don't own a car, the benefits are huge. Even though the law provides legality to those age 21 and up, those 16 to 20 years of age will know that within a very short time, they too will be afforded legal protection for the rest of their life.
I've heard it said that I-502 does not deserve support because no protection is offered to those 16 to 20, but as we all know, this is the same as the law is now; if I-502 passes, it doesn't get worse for those under 21, and because marijuana will be so much wider in its distribution, the reality is that it will be far more accessible for those 18-20 of age after I-502 is in effect. Is it right to allow adults and seniors to continue facing arrest and persecution for possession, just because kids and teens up to 21 years of age won't be able to legally buy marijuana? Of course not.
I-502 would normalize the use, consumption, production and possession of marijuana, and this effect would be contagious to voters and legislators in other states. It would also provide a huge tax revenue bounty for the Washington State and Colorado governments, and this will attract the attention of other state jurisdictions, and ultimately, lawmakers in Washington, DC.
SO WHY DO PEOPLE OPPOSE IT? WHAT IS THE PROBLEM?
Most of our people in the cannabis culture who smoke, grow, or sell the herb don't vote. The vast majority will never give money to political reform of any kind, most won't gather signatures (unless they are paid) and will never write their congressperson or even a letter to the newspaper to condemn prohibition.
Despite Presidential candidate Ron Paul wanting to end the entire federal drug war (and having advocating this for 30+ years) and having been passionate about complete legalization even on his speaking trips to Washington State, saying in Seattle, "Why can't we put into our bodies whatever we want?", almost every Washington state legalization activist refused to vote for Ron Paul in the Washington primaries, with many preferring to support the arch-enemy of the pot people, Barack Obama, who has continued and increased the drug war and other unjust and worrisome laws and policies such as spying, torture, war, and more.
For the most part, our people are politically useless, unwilling and unable to organize, distracted by petty acrimony, and won't actively support candidates or initiatives that will further the legalization of cannabis. For all the 250,000 stoners/pot people who come to Seattle Hempfest each August, the organizers can't even get this mass to contribute pennies per person in donations, so pathetic is the sense of political responsibility among our people. Even a tremendous event like Hempfest suffers deficits because our people can't collectively volunteer to give even ten cents per attendee to pay for its costs. Sad, sad, sad.
So we are left depending on straight people, who have a very casual affiliation at best with our culture – they might know someone who is a medical user, or smokes pot, or they smoked themselves in college – but who believe certain aspects of the drug war are wrong and counter-productive. (Still, we have many to convince; women with children and people over 65 are the toughest demographic to win over to the legalization argument, although the over-65 crowd is getting more on board gradually.)
It is not always obvious who is supporting prohibition and who is opposing it. California's Proposition 19 campaign in 2010 to pass the greatest legalization initiative ever offered to voters in history failed because the prohibition profiteers, including those allegedly in our own culture, worked so hard to defeat it. They feared losing their control and profits in the industry, and decided to maintain prohibition instead of supporting legalization.
Sadly, enough California prohibition profiteers and betrayers undermined the greatest opportunity in a generation to legalize production, possession and use of marijuana for all citizens in 2010 with Proposition 19. There will not be another Richard Lee, and there isn't another Richard Lee – the DEA and Obama have taken care of that, shutting him down, stopping him from ever financing another legalization proposition in that state. And that's a tragedy that every day Californians ought to regret. I never heard then, and I have never heard since, any rational argument offered to oppose Proposition 19. It was greed, self-interest, and paranoia offered as so-called explanations for opposing it.
When Steve Kubby put forward the 'Regulate Marijuana Like Wine' proposed initiative this year, I knew it would fail because, despite the California marijuana industry going through several billions of dollars each year, 99.9% of those earning that money don't give a damn about legalization, and never have. Proposition 215 has created a prohibition-profiteering monster than now feeds on its own success, the legal right to produce cannabis without fear of arrest while selling the product at hugely inflated prohibition profits, well beyond what a legal market could justify. Richard Lee was a saint for all of California, and he is forcibly retired now. Shame on you, Californians, for your dereliction of justice and duty to the movement!
The California situation was right out of the classic British Ealing Studios class-war film with its eponymous title and climactic greatest scene, where the one sane person in the film castigates everyone from unions to capital to government over the 'British disease', calling them out for saying "I've got mine, and screw you, mate, I'm All Right, Jack!"
Sensible Washington, the tenuous coalition of activists who made a decent effort to get a 'grass-roots' initiative on the ballot in 2010, suffered because, like California, our people won't cough up any money. Seems activists are broke and have no connections to cash. From that 'nice try' in 2010 where signature gathering fell 100,000 signatures short, it was a very depressing bad try in 2011, to a 'no try' for 2012. But most disappointingly, their response is to work hard to defeat the perhaps-not-perfect-but-still-better-than-even-Amsterdam legalization initiative I-502!
I-502 is outstanding legislation at this particular point in the cannabis liberation movement's political history. The nay-sayers may fume and deride it, but it is much sound and fury signifying nothing. I-502 is supported by many politicians and officials – the very same people we’ve all been working for so many years to bring on board to legalize cannabis. Suddenly, after they join our cause and put a legalization initiative on the ballot to allow adults to legally buy and use marijuana, they are viewed with suspicion, and even protested against!
Should I-502 fail to pass in November, we'll know who to blame, and who can be held responsible. The so-called grassroots could not manage to get their own initiative on the ballot, and in their frustration, they may choose to sabotage the best opportunity Washington State has had in the long history of prohibition to do what is possible – under the political reality of the day – to legalize marijuana.
You, my friend, should do what you can to make history, and have Washington State be the first (or amongst the first) state to legalize marijuana in the United States. So get out and vote YES on I-502 on the first Tuesday this November!