CULTURAL BAGGAGE

NOVEMBER 18, 2016

TRANSCRIPT

DEAN BECKER: Hi, this is Dean Becker. Thank you for being with us on this edition of Cultural Baggage. Following on the heels of the elections, the Drug Policy Alliance held a conference to talk about the impact on particularly marijuana around the US, and here to open it up is Asha Bandale of the Drug Policy Alliance.

ASHA BANDALE: This is Asha Bandale. I'm a Senior Director of the Drug Policy Alliance. Let me first just begin by turning the phone over to our executive director, Ethan Nadelmann, to give us an overview of what has happened in the world of marijuana law reform. Ethan?

ETHAN NADELMANN: Okeh, thank you very much, Asha. Yeah, it was really a remarkable set of victories last night. To see the victories for medical marijuana across the board, and on marijuana legalization. Just some of the details of this, you know, California was obviously a monumental victory, and my colleague Lynn Lyman will talk about that shortly. Nevada and Massachusetts also won handily. In Maine, it looks like we won, but there's still a possibility of a recount, so we're calling it a victory but it remains to see, and then Arizona was the only state that lost.

On medical marijuana, Florida, North Dakota, and Arkansas all legalized medical marijuana, and Montana passed a sort of fix-it initiative. They had legalized medical marijuana back in '04. It had almost been wiped out by the legislature, and so this was, you know, getting medical marijuana back on the rails.

The one way to look at these initiatives politically is that medical marijuana won in four essentially red or reddish states, and marijuana legalization won in four blue or bluish states, with only Arizona the one sort of red state rejecting it. And I think that shows us a trend for what's going to be coming up ahead, which is we can see marijuana legalization prevailing in a growing number of states. The next state to legalize marijuana may well be in New England, such as maybe New Hampshire or Vermont, both of these states, and that those would be the first ones where marijuana legalization was put forward through the legislative process rather than the ballot initiative process.

And I think given the national public opinion polls showing between 55 and 60 percent of Americans now favor legalization, and those numbers spreading not just in the coasts, but even the central parts of the country, I think we will see other states like Michigan, maybe Ohio and others, moving forward on legalization as well, with ballot initiatives in 2018 and 2020.

So, there's a massive sense of momentum in this regard. I think Americans have become persuaded by and large that marijuana prohibition makes no sense, that it's better for police to focus on real crime rather than arresting young people for marijuana offenses, and it's better for the government to collect the tax revenue and use it for beneficial purposes instead of letting gangsters and others collect the revenue instead.

So, this will of course put a lot of pressure I believe on the federal government. California's got a lot of Congressmen, and even some of the Republicans who were elected have been good on marijuana reform in the past, so I think it's promising in that area. It's worth pointing out that in Congress, marijuana reform fared relatively well in the last couple of years, notwithstanding the Republican dominance. But what gives me real concern is some of, is really the lesson of Donald Trump and some of the folks around him who are in positions of influence.

I mean, Donald Trump is totally unpredictable on this issue. There was a moment years ago when he said he was interested in legalizing all drugs, but he was also seen using drug war rhetoric during the debates with Hillary Clinton. He did however say pretty clearly I believe during the primaries that he had promised to respect state marijuana laws, and to leave the issue of legalization up to the states. So, he very much needs to be held to that.

What really worries me is some of the folks like Rudy Giuliani and Chris Christie, who could well be nominated for Attorney General, or for positions on the Supreme Court. Rudy Giuliani is a drug warrior going back to the early '80s. Chris Christie has been highly unpredictable. He's worked cooperatively with us and recently signed a medical marijuana expansion bill, but he's also the one who during the Republican primaries basically told people to smoke their weed now because he planned to enforce federal law to the full extent if he became president.

So I'm very worried about this. I think it's important to recognize that the move made by the White House and the Justice Department in the summer of 2013 really helped to provide a kind of qualified green light for marijuana legalization to proceed, both with the implementation in the states that have legalized, and elsewhere. And, I don't think we're going to have quite the same green light coming out of the new administration. So that's what really concerns me the most.

And secondarily, on Capitol Hill, you know, oftentimes, even when you have a majority of the votes on your side, Republican chairs will oftentimes appear reluctant to approve votes and to allow these things to move forward. So I think the nationa l results of the election of Trump and the sort of one party Republican government that we will be having for the foreseeable future suggest that there are still various ways for the feds to throw a wrench in the works when it comes both to implementing marijuana legalization and to other states doing it.

I'd say the momentum is strong, the wind is at our backs, but it is not a lock as yet given the national political results.

ASHA BANDALE: Thank you so much for that very clear overview, Ethan, and then please, let me turn to Lynn Lyman, our director for California, our state director for California, and please talk about the victory that we had here last night.

LYNN LYMAN: We did something really significant last night in California. And we did it in a huge way. Forty, nearly forty million people now live in a place where they can, adults can legally use, purchase, sell, transport, and consume cannabis legally without the threat of arrest and incarceration.

And what does that mean for California? We know that it means that up to 20,000 fewer people will be arrested this year, and saddled with the lifelong consequences that come with an arrest in this country, certainly in California. More than 6,000 people currently serving time in county jails across the state will be eligible to petition for resentence, and possibly be released. And over a million Californians will have the opportunity to have their record cleared, reduced, and expunged.

And most importantly, children will never again be arrested for a marijuana offense in California. We have protected children 17 and under from the criminal justice system. And we did this in a big way, as I said. It was pretty obvious, pretty immediately when the polls closed in California, that we had won. We, last, we ended up with 56 percent of the vote, taking 37 of 58 counties, and I think most significantly, all the hard work we did in the Inland Empire to try to turn out unlikely voters in some of those swing counties like Riverside, San Bernardino, we won, we won in those counties where marijuana certainly never fared as well in the past.

So, we ran a great campaign, really powered by people on the ground, partners, and what we've done in California is significant for people who care about just the basic elements of justice.

ASHA BANDALE: I'm going to now turn to our senior director for legal affairs, Tamar Todd.

TAMAR TODD: You know, following up on Ethan and Lynn, DPA also was involved in the drafting and providing financial support for a number of the other measures that passed last night. Significantly, as was mentioned, we doubled the number of US states that have decided to end marijuana prohibition within their state, adding California, as Lynn just discussed, in addition to likely Maine, Massachusetts, and Nevada. Those other three state initiatives do not actually contain the type of retroactive sentencing reform that Lynn noted for California, but they are models that we have seen from the other states, from Oregon, Washington, Colorado, and Alaska, and in some ways are unique and improve upon those models as well.

Maine's initiative is unique in that it allows, it legalizes a larger amount of marijuana, two and a half ounces, and a larger number of plants for folks to cultivate at home than the other initiatives. It also was the experience of the states that have gone before, and allowed for the licensure of retail social clubs where people will be able to purchase and consume marijuana on the premises in areas that are just for adults 21 and older.

Maine and Massachusetts both brought in the protection not just from arrest but for protection in other areas, such as parental rights. The Massachusetts initiative looks, is forward thinking in terms of how California was and was not just ending prohibition but trying to undo some of the harm that was caused under marijuana prohibition and mandates the regulatory agency in establishing this new legal regulated system to find ways to create inclusion of women and people of color in the licensing of these new businesses.

And Nevada as well very much builds upon Nevada's existing medical marijuana system. They all allow for home cultivation. Nevada's is slightly different in that you're only allowed to cultivate at home if you live, if you don't live within 25 miles of one of the new retail marijuana stores that will be licensed.

There also as we know were four medical initiatives on the ballot, adding three new states, two new states in the south, and I think one thing just to note about these medical initiatives is that they're more meaningful laws when they're passed by the voters typically than what we've seen passed by state legislatures, so there are a number of states who have enacted some form of medical marijuana law that we don't even count in the list of what's an effective law, because they're so narrowly construed in terms of who's allowed access, for the very small number of conditions, and very restrictive in terms of the type that of marijuana -- of marijuana is allowed, that is allowed, that, but when voters enact these measures, they're meaningful.

And, the North Dakota, Florida, and Arkansas measures all allow access to the whole plant for people from a variety of medical conditions. You know, Florida even includes PTSD, as does North Dakota. So they are not just in new areas of the country, but they are very meaningful laws that will allow access to a large number of people and I think as we've seen with these four states that support for access to medical marijuana by sick and suffering people is overwhelming across party and across regions in this country.

DEAN BECKER: Hi, this is Dean. Let me interrupt for just a second. We're going to name that drug by its side effect, but when we come back, we'll hear some questions from reporters around the nation about these changes to the drug law put forward to the good folks at the Drug Policy Alliance. We'll be right back.

It's time to play Name That Drug By Its Side Effects! Agitation, paranoia, hallucinations, face chomping, lip eating, heart devouring, brain slurping, ecstasy, suicidality, zombieism. Time's up! The answer, according to law enforcement, from some crazy ass chemist somewhere: Mephedrone, otherwise known as bath salts.

Should be noted, besides these laws for recreational and medical marijuana, there were some nuanced laws including this one in Denver. We got NBC Nine out of Denver to fill us in on some details.

KYLE CLARK: Do Colorado a favor, would you? Tell your out of state friends that the new marijuana social use ordinance does not allow people to just light up anywhere anytime. First, Denver won't have hash bars. Not like the ones in Amsterdam. Under Colorado state law it's illegal to allow people to use pot at a pot shop. In theory, you could open a social use business right next door to a pot shop, but they'd have to be separate.

Aside from that, there aren't many restrictions on what kind of business can apply for a marijuana area. You might see pot areas in bars, coffee shops, restaurants, maybe even a book store for deep reading. If the business is going to allow smoking pot, that needs to be out of sight. The law says outdoor smoking at street level can't be visible from sidewalks or streets, or anyplace kids group together.

It's unlikely you'll see a business that allows smoking pot indoors. A cigar bar is about the only kind of business that could even try. But vaping and eating edibles could be allowed indoors. Businesses need to partner with one of roughly 200 official neighborhood organizations in Denver to apply for a license. They can agree on ground rules about hours, alcohol, and more, which means the rules might be a little different at each social pot place that opens.

DEAN BECKER: Once again, Asha Bandale of the Drug Policy Alliance.

ASHA BANDALE: We'd like to open up the call at this point.

STEVE WISHNIA: Hi, this is from Steve from -- Wishnia from the Independent in New York. I have one factual question for Lynn, which is, which county in California was the only one that voted against the initiative? Then I have two more questions. One, how does this effect us in New York state, which I guess would be included in the states that don't have effective medical marijuana laws, and would, and the second one after that would be that, you know, legal marijuana in this country in places like Colorado seems to rest on the Ogden memo, and you know, would an attorney general Rudy Giuliani respect that, or would he say, you know, this is illegal under federal law and I'm not going to let all these people flout federal law.

LYNN LYMAN: Yeah, so, I'll address the first question. We actually lost in, well, we won in 37 of the 58 counties, and trying to do math in my head --

STEVE WISHNIA: Oh, 37 of 58, not 37 of 38.

LYNN LYMAN: Yes, 37 of 58 counties, and so we, we lost in, you know, the more conservative inland areas, but not in southern California, where more of the, you know, Merced County, Madera County, and Kern County, sort of the in the middle of the state, and then we lost in some of the northern parts of the state by a small margin in like Trinity County and Shasta County, but we did win in the other growing counties of Humboldt and Mendocino, so it was kind of split, but, yeah, that was a win in 37 of 58 counties.

ETHAN NADELMANN: Yeah, and I think, with the other two questions, Steve, I think in New York, and it's related to your question, New York is related to what Trump might do with respect to the Cole memorandum, which is the August 2013 memorandum that provided that qualified green light for Colorado and Washington to implement their initiatives. And it's really, I think, a, there's some momentum across the country, and the fact that the neighboring state of Massachusetts is now legal, will be a legalization state, and Maine is close by, and given the public opinion polls in New York show a majority support for legalizing marijuana, given what came out of California, all these suggest that the momentum for moving forward with marijuana legalization in New York is very strong. And our organization, Drug Policy Alliance, is going to be leading that effort. We've already been laying the ground work over the last year or two, with sponsors on both sides.

On the other of this however are two considerations. One is the possibility of, as I said before, a Giuliani, a Christie, somebody like that as attorney general. The possibility that they may repudiate the Cole memorandum, the possibility that they might start to approve a greater number of raids in states that have legalized marijuana and get a lot tougher. All of these are going to have a chilling effect on some of the momentum to move forward. And then the fact that we're being, you know, right now, it looks like the chance, if the Democrats had taken the state senate, they've had the assembly for a long time, if they had taken the state senate, I think our prospects would have also leaned, much -- I would have been much more optimistic about our prospects. To the extent that the Democrats don't control the senate, I think that all sorts of initiatives are possibilities.

TAMAR TODD: Can I add one thing on that Ogden memo piece about sort of the ability of the federal government to interfere, should, you know, there be an attorney general who chooses to take that approach, and that is just to remember that there's really two elements to these laws that have passed. There's the piece that legalizes conduct under state law, and in California reduces penalties across the board under state law, and that piece, given that 99 percent of all marijuana law enforcement happens on the state and local level, there's very, very little that I think the federal government can do that piece. They don't have the ability to take over 99 percent of low level, you know, marijuana arrests and enforcement, and they have no legal basis for challenging or trying to force the states to make a conduct illegal under state law.

The piece where they could really cause, you know, disruption and uncertainty, is around trying to interfere with the regulatory piece, the pieces of the state laws that set up a system to regulate and control marijuana within the state, and how it's produced and how it's sold, and to ensure that that's done safely and responsibly. That's the piece where they, you know, could choose to move off the Ogden memo and come in and start to interfere. Given that the piece about, you know, regulation control and how the industry operates safely and smoothly, it's something that is, you know, a very meaningful piece no matter how you feel about, you know, marijuana and whether it should be legalized, then, I think a lot of the impetus for the approach that the federal government has taken so far is that it's really in everyone's interest, you know, if you legalize marijuana, to allow it to be regulated. You know, that hopefully, wise policy will prevail as well.

TELECONFERENCE HOST: And our next question will come from Bart Schaneman with the Marijuana Business Daily.

BART SCHANEMAN: I was wondering if someone could speak specifically to some of the, you know, perceived opportunities for the business community with the election results and maybe how the results will impact the economics of the industry.

ETHAN NADELMANN: Thank you, Bart. This is Ethan. I mean, I think obviously the market opportunities are going to be extraordinary. I mean, the California population and market by itself is larger than the four states that have already legalized marijuana, you know, Washington, Oregon, Colorado, and Alaska, and the four states that had legalization on the ballot this year, including Arizona, I think it's 38 point something million to 34 point something million. So California's going to be a massive market, obviously Massachusetts has got six or seven million people. Nevada, you know, has got a substantial population as well. The Florida medical marijuana initiative is going to represent a very major opportunity as well.

I think the real question, you know, for the business community is less about are these opportunities fantastic, amazing, and incredible. The bigger question is the business community going to do everything it possibly can and be effective in terms of pushing the Trump administration to do the right thing here. That's the fundamental question. I mean, so far the industry has not really, you know, it's only beginning to come together. It's not fully distinguished itself in terms of the effectiveness of its advocacy, especially on the national front. There's a host of concerns, not just the 280e tax issue, and the banking issues, but a range of other ones where a lot more is going to need to happen, and that can take the form of direct lobbying and influencing with the federal government. It can also take the form of providing much more substantial support to organizations like the Drug Policy Alliance, Marijuana Policy Project, and others that are deeply engaged in this work.

TELECONFERENCE HOST: And our next question will come from Will Godfrey with The Influence.

WILL GODFREY: I have a question for Ethan. I just wondered what his feeling is about the impact that these victories could have on the international stage, both in terms of other countries potentially following suit, and in terms of the US government's ability to continue promoting drug war policies internationally.

ETHAN NADELMANN: Yeah, and I think, Will, it's, I mean on the one hand, obviously, you know, when I talk to allies and government officials in Mexico, and I ask them, what's it going to take to break open the drug policy debate in your country, the answer overwhelmingly has been, when California legalizes marijuana. And when I say, what about Colorado and Washington, they say that helped. What about Oregon and Alaska, that helped. But California, that's the thing that looms so large in the Mexican imagination. You could do Texas too, they say, that would be great, but they understand that California's the big one.

So I think that this is going to cause a major transformation of the drug policy discussion in Mexico. I think that when President Pena Nieto of Mexico came to speak at the last minute at the United Nations General Assembly Special Session on drugs in New York earlier this year, he was driven to do that almost entirely by the prospect of marijuana being legalized in California, and really bringing to a head the question about why is Mexico continuing to spend large amounts of money and lives and resources trying to enforce an unenforceable prohibition, when right across the border California's regulating and taxing this.

I think even beyond Mexico, Will, that the impact of California will be felt throughout Central and Latin America, throughout the Caribbean, and even internationally. But we have to keep in mind that many people around the world don't really know what Colorado or Oregon are, they don't know that Washington is also a state, but almost everybody has heard of California. So I think that this part of what happened yesterday is really going to resonate internationally in a major way.

And the only caveat to all that is once again the Trump administration, and how they're going to deal with this issue, in terms of what will happen internationally, it's going to be a highly hostile relationship with Mexico, a fairly unpredictable and belligerent foreign policy, so really hard to say. Hopefully Trump's kind of, you know, let's the states decide what they want to do, go over to let other countries decide what they want to do, and so that the emphasis will be all on the positive, not the negative.

TELECONFERENCE HOST: Okeh. Next we have a question again from Steven Wishnia

STEVEN WISHNIA: Yeah, how do you think that Trump's racial attitudes might affect this, both he and Giuliani, you know, still think that the five kids who were framed for the rape in Central Park in 1990 are still guilty, even though they were officially exonerated, and, you know, that kind of racial attitude towards crime is what drove, you know, the stop and frisk and the mass arrests in New York under Giuliani and Bloomberg, so, how do you think this might affect his national policy on the issue?

ETHAN NADELMANN: Let me start off on that one and then ask my colleagues to jump in. I think that the impact of that element on marijuana reform is not going to be significant. I think where we're going to see it much more deeply is in terms of the broader drug war rhetoric of Donald Trump, together with Giuliani's record and others during the campaign. I mean, he was reviving a lot of the old drug war rhetoric and the demonization, playing off old images that, you know, both he and others try to raise people's fears, the fears around race, you know, not just kids. I think that the prospects of sentencing reform in the federal government have diminished now, that there will be less enthusiasm for moving forward with that. So, I'm really, I think, the impact on marijuana reform may be not that great. The impact on other drug policy reform, I think, is a really profound concern.

ASHA BANDALE: Yes, thank you, Ethan. Lynn, let me turn to you because this is arguably the most racially justice -- racial justice oriented marijuana law reform ever.

LYNN LYMAN: We have chosen something different in California, and we have not chosen a Donald Trump, and the laws that we chose to govern us and the people that we chose to govern us in this state are people and laws that uphold the values of equality, justice, and fairness. And I think that he's going to have to change his tune if he's going to be able to have any resonance with California voters. You know, we overwhelmingly went against him, and we overwhelmingly went for many progressive candidates and progressive measures, and, you know, I certainly don't want to be part of a political body that is represented by, you know, hate, racism, and sexism, and, you know, and no regard for justice, so I don't really know what to say other than that's not the choice we made here, and that Prop 64 really represents a different kind of choice, and not just one that's about doing things differently moving forward, but is also about looking back at the harms that our policy has caused and beginning to put real things, real tangible pieces in place to repair some of the damage that we've caused, and I guess at this point, we just need to try to kind of hold it steady.

ASHA BANDALE: Thank you so much, and hello Dean.

DEAN BECKER: I want to ask, how far reaching the tentacles of progress can be. My city of Houston just elected a sheriff and a DA who are basically calling for the end of drug war. This movement is expanding exponentially. How fast can we move?

ETHAN NADELMANN: Yeah, I mean, in the races for DA and sheriff there, sort of progressive forces, Democrats were mobilized and funded, including the race involving Sheriff Joe Arpaio in Phoenix who was defeated, another one. In those cases, Democrats and progressives prevailed. But I think if you look around the country, they're still overwhelmingly dealing with a law enforcement establishment that is disproportionately Republican, disproportionately white, in ways that I think are going to take a lot of long, hard work to do something about.

DEAN BECKER: Well, that's all we have time for. I urge you to go to the Drug Policy Alliance website, that's DrugPolicy.org, and as always I remind you, because of prohibition you don't know what's in that bag. Please be careful.

To the Drug Truth Network listeners around the world, this is Dean Becker for Cultural Baggage and the unvarnished truth. Drug Truth Network archives are stored at the James A. Baker III Institute for Public Policy. Tap dancin' on the edge of an abyss.