The Best Chance Yet for Legalizing Marijuana

By Daniela Perdomo
January 4, 2010

Tax Cannabis 2010 faces hurdles as it prepares for its test on the California ballot next November.

It's Dec. 14 and news that the Regulate, Control and Tax Cannabis Act of 2010 has qualified for the California ballot next year has just exploded in time for the evening news cycle. I am sitting on a sofa in a nearly empty room at Oaksterdam University, filing an update to my scoop for AlterNet and waiting for a chance to speak more at length with Richard Lee, the man behind the measure.

For the better part of an afternoon I've observed -- and waited for -- Lee and his staff as they ably handle a flurry of calls from the media before disappearing into a campaign strategy meeting. It's now dark out over downtown Oakland, as Oaksterdam students gather on the sidewalk after class.

The door opens and Lee parks his wheelchair, softly lands on the couch, and starts breaking up a bit of weed for a toke. After lucrative years in the advertising and marketing industry, he has reestablished himself as a pot entrepreneur and transformed a large sliver of downtown Oakland into Oaksterdam. As a major proponent of professionalizing the marijuana industry -- Oaksterdam University is probably his biggest project in this effort -- today is a big day for Lee. "It's not a petition anymore, it's an initiative," he says with a grin, as he lights his joint.

While the campaign won't submit the nearly 700,000 signatures it collected in two short months until February (and then must wait 90 days for official confirmation of their inclusion on the November ballot), the people behind Tax Cannabis are preparing to move onto the next stage. And they do so with a degree of fanfare. Last year brought an onslaught of positive coverage of marijuana by the mainstream media. Every outlet from Fortune to Newsweek, from Rachel Maddow to CBS Morning, has dedicated ink or airtime to the subject of cannabis reform, aiding in the normalization of the most commonly used, least toxic illicit substance in America.

This, in addition to the colossal budget crisis in California, has Lee convinced that 2010 may be the year for marijuana legalization. "Our initiative will catch up with the reality of what's already going on," he says. "There's a lot of variables out of our control -- say, what the economy does next year. But in general our theory is that the more people talk and think about the issue, the more we win them over."

Tax Cannabis is betting that the time is ripe for a public education campaign around ending marijuana prohibition, although the learning curve remains steep among some.

Later that night at the campaign's Broadway headquarters, I watch Dale Sky Clare, an administrator at Lee's Oaksterdam University, wrap up an interview with a local TV news affiliate.

Clare marvels at the reporter's remark that Tax Cannabis "looks like a real campaign."

Well, it is.

Dovetailing efforts

The winds of marijuana change are upon us. You can smell it -- literally and figuratively -- throughout California, where weed has been legalized for medical use since 1996. Proposition 215 succeeded due to the efforts of those who advocated the compassionate use of marijuana for patients with chronic diseases such as cancer and AIDS, but it's common knowledge that you can obtain medical marijuana for less serious afflictions like menstrual cramps, or in the case of a graduate-school student I know, thesis anxiety.

Because so many can and do consume marijuana legally, it's no wonder Lee believes his measure, which would tax and regulate marijuana for adults 21 and over, will merely be catching up to a reality already in place.

The measure does not actually legalize pot as much as it absolutely decriminalizes certain marijuana offenses. (Marijuana has been "decriminalized" in California since 1975, but it still can generate a fine, an arrest and a misdemeanor charge on your record.) Tax Cannabis institutes a one-ounce personal possession limit and allows for limited personal cultivation.

Interestingly, the ballot initiative refers to local control, meaning that cities and counties can decide whether to allow regulated marijuana sales at all, and if so, how that would work. Tax Cannabis allows for the personal consumption, possession and cultivation of cannabis by any adult over 21 throughout the state, but the business of it would be left to local jurisdictions. (A few people suggested Lee was inspired by his home state of Texas' dry-county, wet-county policy regarding alcohol sales.)

The Tax Cannabis initiative isn't the only path to legalization weaving its way through the system. State Assembly Member Tom Ammiano has introduced a bill that effectively removes marijuana from the state's criminal and civil codes, though it reestablishes the selling or providing of cannabis to a minor as a felony with a corresponding penalty.

"Both the initiative process and the legislative process that have been introduced have been a great bully pulpit for looking at this as a serious public policy question," Ammiano told me, adding that even in conservative areas like Orange County, taxing and regulating marijuana are viewed favorably: "It's definitely on the radar."

The bill is up for review by two State Assembly committees on Jan. 12. It must pass both to make it onto the floor, but it is doubtful that the legislation will live to see Jan. 13.

Given that the vast majority of the 13 states with medical marijuana laws passed them through ballot initiatives, Stephen Gutwillig, the California state director of the Drug Policy Alliance (DPA), believes that "it is far more likely that marijuana prohibition will be ended at the hands of the voters through a ballot initiative than through legislation in any state." (In addition to California, bills have been introduced in Washington, Massachusetts and New Hampshire for consideration in 2010.)

Because voter initiatives are most common in western states, this is where you are more likely to see these changes. Electorates have voted on marijuana legalization before -- in Nevada and Colorado in 2006 (both failed) and the city of Breckenridge, Colo. legalized it late in 2009 -- so the California measure isn't groundbreaking, but longtime drug reform observers believe it's the first statewide initiative with a solid chance of winning.

Since victory in pot legalization has been scarce, Tax Cannabis took many marijuana reformers by surprise with the launch of its campaign efforts in June, and then again with the success of its signature-gathering effort last month.

One such reformer is James Clark, a criminal defense attorney who helped Lee craft the language for both Tax Cannabis and a separate initiative, California Cannabis Initiative (CCI), which Clark described as "not dead in the water exactly," but acknowledged is unlikely to meet signature requirements due to lack of funding.

The CCI initiative is the most far-reaching when compared to Lee's measure and Ammiano's bill. It does not include limits to personal cultivation and possession, expunges cannabis criminal records and includes anti-discrimination protections for cannabis users.

But the real story is that Tax Cannabis "is actually going to be on the ballot," Clark said, adding that he will likely support the initiative, although he prefers CCI.

And that seems to be the consensus among several marijuana activists, such as Steve DeAngelo, executive director of the state's largest medical marijuana dispensary, Harborside Health Center in Oakland. DeAngelo told me via e-mail that although he does not believe Tax Cannabis is the "best strategic choice for the cannabis reform movement, now that it has qualified for the ballot, I hope it is successful. As a life-long proponent of cannabis law reform, I support the initiative and hope it wins by a huge majority."

DeAngelo says he will work to help the initiative succeed, and he's promised Lee a $1,000 check for the campaign.

Political tradewinds

It's plain to see why potentially recalcitrant pot activists are moved to support the Tax Cannabis initiative. For one, it's going to be on the ballot. And second, for those who live the war on drugs every day, the political tradewinds are finally lining up for marijuana reform, so although it might not be everyone's ideal measure, it's sure to be a step forward for most.

The war on marijuana in California is hard to fathom. While medical marijuana consumption is legal, the framework under which the growers and dispensaries operate is something of a legal gray area. In Southern California especially, district attorneys and local law enforcement raid and shut down dispensaries, because the laws are, to say the least, vague and confusing, in addition to being in conflict with federal law. Personal cultivation and consumption of medical cannabis are also affected by the murky legal system.

The ambiguous web of laws that governs -- or doesn't govern -- medical marijuana in California is one big reason that propels people toward marijuana reform, but an even bigger incentive may be the social justice issues brought to light by the drug war.

Prior to 1975, California's criminal justice system was overloaded by marijuana offenders. After decriminalization in 1975, arrests were halved and the state saved millions of dollars in law enforcement costs within a few years.

But in 1990, a rather remarkable thing happened. Low-level marijuana arrests, mostly for personal possession, took off in California, jumping 127 percent between 1990 and 2008, according to the state's Justice Department. Over the same period, arrests for all other offenses dropped 40 percent.

To elucidate the current situation, since 2005, marijuana arrests have increased nearly 30 percent, totaling 78,000 in 2008, according to figures from the state's Office of the Attorney General. And of those tens of thousands of arrests, four of five were for simple possession, and one in five arrested was a minor under 18.

The war on weed has disproportionately affected minorities and young people. Sixty-two percent of California's marijuana arrestees are non-white and 42 percent are under 20 years old. Since 1990, there has been a 300-percent surge in arrests of teenagers of color -- mostly blacks, who constitute less than seven percent of the state's population but made up 22 percent of all marijuana arrests in 2008, also according to the California Justice Department.

This all for a medicinally powerful drug that at least one-third of Americans have admitted to trying at least once. You have to wonder why California is investing so many law enforcement resources into combating marijuana.

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), says the rise of low-level marijuana arrests shot up in California just as they did nationally. Indeed, a 2005 report by the Sentencing Project (pdf) shows that national marijuana arrests rose 113 percent between 1990 and 2002.

Several hypotheses exist. One is that Bill Clinton ran on a platform that promised 100,000 more police officers on the street, a goal he very nearly achieved through his two terms in office. More cops mean more arrests. A second theory is that local police depend on federal funding more than ever. Byrne and HIDTA grants are doled out to high drug-trafficking areas, and every police district clamors to qualify.

"Poor police forces can now outfit their towns with weaponry and technology they can't afford on their own," Armentano said. "People get used to these expensive toys every year so they realize they have to keep [drug arrest] numbers up in order to keep money flowing in. Marijuana arrests are relatively safe -- not like marching into a meth house or dealing with heroin addicts who have needles lying around. Marijuana arrests are the easiest way for police forces to boost their stats."

Dale Gieringer, the coordinator for California NORML, thinks less obvious reasons may also have contributed to the rise of marijuana misdemeanor arrests in California. He believes low-level marijuana arrests have been emphasized over higher-level charges because of the advent of medical marijuana legalization. "The tendency may now be to go lightly on personal growers and smokers, where they once did not," he said.

Gieringer also says the state's anti-smoking rules may have led police to be more vigilant about smoking in public areas.

Regardless of motivation for marijuana arrests, their rise has moved Monique, 32, a social worker in Oakland, to join the Tax Cannabis campaign as a volunteer. "I feel that we're using a lot of money and time to put nonviolent individuals into jail," she said, lamenting that her program at Social Services received a 20-percent budget cut this year due to the state's financial crisis.

California's debt totaled $81.5 billion by Dec. 1, and it's not done growing yet.

Building a movement

The Tax Cannabis headquarters are about a block from the new Oaksterdam University building, in the space the cannabis industry-training school has now outgrown. That's where I meet the campaign's first and only full-time employee, Mauricio Garzon.

Garzon strikes me as exceedingly calm considering he is running the day-to-day operations of what is likely to be the most galvanizing measure on California's ballot next year. A former derivatives trader on Wall Street, he left finance eight years ago to "do something socially relevant." He says he doesn't really smoke weed, or even drink alcohol much.

The Beatles' "Back in the U.S.S.R." plays on Garzon's computer as he tells me that he signed on as the campaign's coordinator because of democracy. "It requires participation, but participation requires information -- and good information, too," he says. As a result, Garzon envisions the next stage of the Tax Cannabis initiative as an education campaign that has the potential to reverse a "horrible social policy."

Garzon says the campaign is planning its larger strategy for the next months, and is currently in a phase that will emphasize coalition-building, fundraising and online organizing. Lee already has lobbyists in Sacramento, and aims to get labor and other groups with sway on board early, before potential opposition starts organizing.

"A good opposition can do a lot of damage by spreading untruths," Lee said. "It's easier, after all, to get people to vote no than vote yes."

That's why messaging is going to be key. Already the campaign has taken careful steps to use "tax and regulate" over "legalization," and "cannabis" over "marijuana." Both Lee and Garzon say the campaign will craft targeted messages for different groups across the state, ranging from farmers in the Central Valley to social conservatives in Orange County.

Grassroots outreach is also part of the baseline strategy. House parties and other forms of local-level organizing and fundraising will be important, but Garzon aims to take a page from the Obama campaign and focus a great deal of effort on online outreach.

They're even working with Blue State Digital, which powered Obama for America's campaign site and social network. Already Tax Cannabis is making use of its 30,000-strong e-mail list.

Tax Cannabis volunteer Perry Rosenstein, a political consultant in San Francisco who was the new media director for the Obama campaign in Nevada thinks this is a good move. "Reaching out in cost-effective ways to those who support the cause and asking them to do things -- give money or time -- will be extremely important," he said.

Though Lee is a millionaire whose money -- directly or through Oaksterdam University -- has almost entirely funded Tax Cannabis until now, Garzon wants the bulk of the campaign's funds to come in the form of small donations from many people. And he's shooting nationally -- only Californians can vote in the election, but any American can donate. The campaign is expected to cost between $10 and $20 million.

Field efforts will be important, too, particularly during a mid-term election, when voters tend to skew older and more conservative. A strong get-out-the-vote strategy will be necessary to turn out progressive voters, particularly young ones. Rosenstein, 24, went to an early volunteer meeting in Oakland, where he felt "there was that Obama energy there."

"Hopefully Tax Cannabis will continue to harness that," he said.

Building diverse support is also a goal. Alex Arsenault, 22, a recent college graduate who worked on the successful marijuana decriminalization initiative in Massachusetts last year, came out to California to volunteer for Tax Cannabis. Arsenault was the regional coordinator for volunteer petition-gatherers in San Diego, Orange County and the Inland Empire, where he built relationships with the medical marijuana community and the Libertarian Party.

One thing the campaign will not seek to do is change drug warriors' minds. "People who see the prohibition of cannabis as working -- I don't even want to talk to them," said Doug Linney, a campaign consultant. "Our key swing audience are those who say that the war is a failure and are looking for another solution."

And polling shows that a growing number of Californians think legalization is the right solution. A field poll in April showed 56 percent support for legalization. Internal campaign polling in March found 44 percent support among likely California voters in non-presidential elections, Linney said. This was followed by an August internal poll that found 52 percent support by likely November 2010 voters.

Those numbers are promising but not ideal, says Margaret Dooley-Sammuli, deputy state director for the DPA. She has personal experience with California ballot measures, as she was deputy campaign manager for Proposition 5 in 2008, which sought to emphasize treatment and rehabilitation for nonviolent drug offenders over harsh criminal consequences.

"We were polling in the mid to high seventies early on but fear tactics were really effective against Prop 5," Dooley-Sammuli said. The initiative ultimately failed.

Given that there aren't super-majority poll numbers for legalization yet, Dooley-Sammuli says Tax Cannabis really has "to get out there and make a strong case and make sure to lead the story."

Potential opponents include the state's most powerful union, the California Correctional Peace Officers' Association, as well as the California Narcotic Officers' Association. Calls for comment to both were not returned.

Despite no clear signs of organized opposition yet, Stephen Gutwillig, the DPA director for California, remains "cautiously optimistic but skeptical that there would be smooth sailing for any marijuana reform ballot initiative in 2010."

The gubernatorial election in November may also impede Tax Cannabis' success. Republican hopefuls are sure to oppose the initiative, and presumptive Democratic nominee Jerry Brown is not likely to come out for it either. Just last month he told a conservative Los Angeles radio station that he believes medical marijuana sales are illegal under current state law.

'The real gateway drug'

It's nearly closing time at the Bulldog coffee shop, another piece of Lee's Oaksterdam empire.

Qualifying for the ballot was a victory, but Lee knows the campaign faces an uphill battle. Nevertheless, he remains cheerful as ever about what Tax Cannabis can accomplish.

At worst, Lee says, the campaign will cause marijuana reform to be a hot political issue that people think and talk about. "So even if we don't win, it'll help 2012," he says, unwrapping his Reese's Pieces.

He won't commit to funding another measure if 2010 is unsuccessful, but given how much of his time and money have gone into rethinking cannabis in California, he can't write it off either.

Dale Sky Clare, Lee's colleague at Oaksterdam University, comes by the coffee shop. We head to the back, where seating is arranged beneath a big kitchen exhaust fan so Oaksterdam staff can take marijuana breaks without overwhelming the rest of the café with the odor of pot.

As sickly sweet plumes of smoke are gathered up by the fan, Clare talks about the failure of current marijuana policy as it relates to children, but what she says seems applicable to all society: "The real gateway drug is dishonesty, not marijuana."

The war on drugs has sown many lies about marijuana and its consumers into American culture. Tax Cannabis has about 10 months to try to get a decisive majority of Californians to overhaul decades of conversation. And what state better than the largest to change the course of national debate? ... age=entire