By Allen St. Pierre
Part of a year-long series, longtime cannabis law reform advocate and historian Allen St. Pierre examines monthly for Cannabis Business Executive the last fifty years of cannabis prohibition and the public advocacy efforts in America to bring about the ongoing and inescapable socio-political changes underway first at the state, and soon, federal level regarding cannabis policy.
Part Eleven (2008-2012)
Marijuana Law Reform Advocates
Consolidation leading to conquest might be the best, and pithy, way to characterize the penultimate period for cannabis law reformers—racking up more, largely medical-access-to-marijuana ballot victories, substantially moving the public opinion needle for legalization; more impressively, achieving legislative victories and the piercing, finally, of Pot Prohibition’s armor: legalization itself in the fall of 2012.
The pro-legalization groups (National Organization for Marijuana Laws (NORML), Marijuana Policy Project (MPP) and Drug Policy Alliance (DPA)), along with the single-issue advocacy organizations like pro-medical cannabis Americans for Safe Access (ASA) and hemp-only VoteHemp, form a strong public front in the mid 2000s to advance cannabis law reform ballot initiatives as the primary vehicles for achieving public policy reforms.
After striking out numerous times in the states of Nevada and Alaska to win voter initiatives to outright legalize cannabis, MPP funded and nurtured a Colorado-based marijuana law reform effort called Safer Alternative For Enjoyable Recreation (SAFER) that initially was only focused on de-penalizing marijuana possession in the city of Denver. However, in time, SAFER as an MPP surrogate became the primary legalization vehicle in Colorado.
While never at all associating publically with the marijuana law reform movement, the 44thpresident of the United States Barack Obama (and his Attorney General Eric Holder), if even only left handedly, should be viewed as a primary cannabis law reform advocate during this crucial period of time during Cannabis Prohibition and it’s reform efforts, because of myriad actions (and more importantly, non-actions) that the Obama administration undertook that, intentionally or not, largely cut the knees out from underneath the federal government’s longstanding and slavish ‘war against marijuana’.
It is supremely unlikely that under a President McCain elected to office in 2008 the ‘beginning of the end’ for Pot Prohibition would have begun in earnest, with the country likely enduring and suffering through another 4-8 years of severe federal friction between states loosening their cannabis laws (i.e., the Drug Enforcement Administration (DEA) harassing state-based ‘compassionate’ medical cannabis businesses and the Office of National Drug Control Policy (ONDCP) continuing to oversee massive federal spending directed at anti-marijuana propaganda, research and policing).
Instead, starting with a series of Department of Justice legal memos (the first being an obtuse Executive Order in May 2009 relating to ‘pre-emption’, leading to the more direct-on-point memo in September 2009 called ‘Ogden’, cumulating in two later DOJs memos known as Cole I and II) that, in effect, back the federal government out from a long-held position of extreme Reefer Madness to one of political pragmatism in recognizing that Cannabis Prohibition is no longer supported in numerous states in America.
No Obama (a former cannabis consumer while a younger person), no cannabis legalization in two states in 2012.
Reform Policy Strategy
After over a decade of state-based ballot initiative advocacy work that largely succeeded in reforming cannabis laws in nearly a dozen states, policy reformers continue to expand the map of victories and more importantly add history-making legislative victories at the state level that established a legal baseline for states to assert their rights to, in effect, deviate pronouncedly from long-established federal anti-marijuana policies and enforcement.
By 2008 the states of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Washington and the District of Columbia had ‘flipped’ on medical cannabis laws.
November 2009 saw the voters of Maine approve an initiative that expanded medical cannabis laws to include non-profit collectives and more medical conditions that qualified for access to marijuana (58%-41%).
Cannabis law reformers were able to qualify four state ballot questions in 2010 (AZ, CA, OR and SD).
In Arizona, MPP funded a razor-thin ballot victory establishing a medical marijuana program that included licensed and regulated dispensaries; 50.1%-49.9%.
South Dakota voters soundly rejected an MPP-funded medical cannabis ballot question, Initiative 13; 63%-36%.
Oregon activists not associated with the big three (NORML, DPA and MPP) qualified Measure 74, an initiative that, under the guise of medical cannabis, ushered in a form of ‘backdoor’ legalization voters consequentially rejected 56%-44%.
However, by far the most influential, while not being successful at the polls, was California’s Prop 19 that sought to legalize cannabis in America’s most populated and important state. However, the effort was not initiated or led by any of the established cannabis reform organizations or funders, instead, the Herculean effort was undertaken by a wheelchair-bound medical cannabis patient and ganjapreneur from Oakland named Richard Lee (founder of the first ever cannabis trade school, Oaksterdam University and proprietor of two medical cannabis dispensaries in the city).
Instead of heeding any warnings of likely failure due to insufficiently high enough polling numbers in public surveys from the established reform groups, Lee chose to self fund most of the effort, qualifying the initiative and promoting it. Additionally vexing for Lee and his Prop 19 efforts was open opposition for cannabis legalization from non-traditional quarters, namely, the quasi-legal ‘medical’ cannabis industry (by 2010 there were an estimated 2,000 ‘illegal-under-federal-law’ cannabis dispensaries openly operating in California).
For the producers and sellers of ‘medical’ cannabis in California, the status quo in 2010 was working for them.
Despite some last-minute funding boosts from the billionaire-supported marijuana law reform organizations like DPA and MPP, Prop. 19 is narrowly defeated 53.5%-46.5%. However, the lessons learned from the close defeat, namely from DPA-funded post-election surveys and public opinion groups, lays the ground work for successful legalization efforts just two short years later.
During this period of time, in advance of the 2010 fall elections, two state legislatures and their governors, in Colorado and New Mexico, break from the traditional mentality of passing ‘affirmative defense/self-preservation’ oriented medical cannabis legislation (in fear of federal intervention) and instead pass state legislation that establishes the licensing, regulation and taxation of medical cannabis-related businesses (in the case of Colorado, the legislature there unlike in California, stepped up to create a transparently business-centric cannabis industry, not one based on the myth of ‘compassionate’ access; by 2010, there were thousands of medical cannabis dispensaries in the states of California, Colorado, Oregon and Washington) largely supported by non-medical patients gaming the supposedly compassionate distribution of cannabis products).
The states of Colorado and New Mexico, entirely conscious of the Ogden and Cole memos, broadcasting the Obama administration’s unlikely intervention, seriously up the ante against the federal government by putting the imprimatur of their states on public policies that were (and still are) a total affront to longstanding federal anti-marijuana laws, enforcement and propaganda.
In short time, there will be medical cannabis patients cued up in line at dozens of dispensaries, notably in Colorado, openly purchasing cannabis from licensed growers and sellers, leaving federal law enforcement agencies largely sitting on their thumbs as in-state observers.
Also too, with a Democratically controlled Congress and Democrat President Obama in the Oval Office, elected officials in Washington, DC, in defiance of federal statutes prohibiting DC to permit medical access to marijuana from qualified patients, passes legislation sought since 1998 to implement the will of the nearly 70% of DC voters who favored the medical marijuana ballot initiative.
Again, absent the election Obama in 2008, these state governments and governors affecting these dramatic and confrontational public policy changes regarding cannabis in conflict with a President McCain administration seems entirely implausible.
With nearly two years of preparation, cannabis law reformers launch a blitzkrieg of pro-marijuana law reform ballot measures in the fall of 2012, largely in states where public surveying from reformers indicate stronger-than-average support for marijuana law reforms—including for outright legalization.
The states of Arkansas, Colorado, Massachusetts, Montana, Oregon and Washington all take a bite of the marijuana ‘question’, with some victories forever changing American public policy and jurisprudence regarding cannabis.
In Arkansas the voters narrowly rejected an MPP-funded medical marijuana ballot question, Issue 5, 51%-48%.
In Montana, voters were being asked by cannabis law reformers to override legislation passed by anti-marijuana legislators to inhibit medical cannabis access. By a 57%-43% measure, voters approved Initiative Referendum 124, overriding and re-establishing patient access.
Oregon voters were once again asked to approve a ballot initiative that sought to generally legalize cannabis. Funded largely by a local medical cannabis clinic owner named Paul Stanford, Measure 80 was rejected by Oregon voters at nearly the same margin as California voters two years earlier; 53%-47%.
MPP largely funded a medical cannabis initiative in Massachusetts, Question 3, sought to mimic the policies and regulations established in Colorado in 2010. Bay State voters decidedly legalized medical cannabis cultivation, sales and taxation, 63%-36%.
On the questions of which states, using billionaire funding, would DPA and MPP fund next for outright legalization, the two organizations chose to separately focus on two states: Colorado (where MPP subsidiary SAFER was laboring for marijuana law reforms) and Washington (where the Washington branch of the American Civil Liberties Union offered to take the lead with proper funding from DPA).
Applying the lessons learned in California, organizers at the onset in Colorado successfully recruited the support of the existing medical cannabis industry to expand access from patients to adults. Contrastingly in Washington, the most vocal public opposition to legalizing cannabis was not from law enforcement, parents or religious groups, it was from a small contingent of medical cannabis dispensary owners who were content with having a monopoly on ‘legal’ marijuana sales in the Evergreen State (speaking of Evergreen…interested persons can watch a terrifically informative 2013 documentary about the efforts to end Cannabis Prohibition in Washington and the absurdly selfish opposition provided by medical cannabis sellers: Evergreen—The Road To Legalization In Washington State).
After plowing nearly $10 million into the two cannabis legalization campaigns, the voters of Colorado and Washington readily accepted the opportunity to end Cannabis Prohibition in their states; 55%-44% respectively.
What was the federal reaction to two states legalizing marijuana under Obama and Holder? Crickets. Nada. Zip.
With Colorado and Washington citizens voting to end Cannabis Prohibition in their states and a non-oppositional federal government in power, for all and intent purposes, Cannabis Prohibition came to an end in America in the fall of 2012 (and soon therein, large segments of the Americas).
A main and tantalizing question for marijuana law reformers after their breakthrough 2012: When to return to the most important state in America that will largely determine the fate of national cannabis prohibition? When to again try legalization in California? 2014? 2016?
Opposition to Legalization
After a decade of losses at the polls, declining support in public surveys for Pot Prohibition, declining political sway and a baby boom president in office who ‘thought the idea was to inhale’ the public opponents to cannabis law reform are increasingly getting harder to weed out and often come from self-interested quarters, such as from law enforcement industry, drug rehab industry, drug testing industry, pharmaceutical industry and private prison industry.
Private opponents to reform, often the funders of the losing oppositional campaigns, come largely from alcohol interests, construction industry, drug rehab owners and social conservatives. However, they’re often outspent by anti-prohibitionists 10:1.
Traditionally the federal government and its largess was often the honey pot of funding and promotion for anti-marijuana groups in the 1970s/80s (DARE, Partnership for Drug Free America, etc…), that the ONDCP would simply double down on funding and Reefer Madness propaganda. However, under Obama and Holder, the choice of former Seattle police chief Gil Kerlikowske to replace anti-marijuana zealot John Walters at the ONDCP signaled likely reforms ahead for drug policy in the United States, notably with cannabis policy.
Unlike his predecessors who publically scorned cannabis law reformers as nothing more than libertines and therein threats to public safety and morality, Kerlikowske, a police chief who opposed both local decriminalization and statewide medical cannabis voter initiatives none the less faithfully implemented the policy changes sought by the voters during his tenure.
In his first few weeks on the job Kerlikowske, unthinkable in previous administrations, contacted the drug policy reform organizations of record and asked for meetings.
Times had changed…even at drug war central.
Challenges For Reformers
From 2008-2010 the Democrats were in control of Congress and while the caucus generally supported medical access and decriminalizing cannabis possession (while stressing its opposition to actual legalization), Speaker Nancy Pelosi made it clear to marijuana reformers early on in meetings held on Capitol Hill and in her district in San Francisco that cannabis law reforms by political necessity were not going to be Congressional priorities (Democrats were primarily focused on passing healthcare reform).
So any major reforms for marijuana were still going to have to come from the state level in the ensuing years.
As previously mentioned a large and unanticipated challenge for cannabis law reform organizations was the degree of public opposition the sellers of medical cannabis were willing to exert against legalization efforts.
Folks who got up every day and grew, sold and used cannabis actively opposed legalization, in favor of quasi-legalization under the guise of supposed medical use, was never envisaged by early cannabis law reformers and academicians. In time, because of the flaccidity of their arguments and naked economic self-interests, the medical cannabis-only counter argument to outright cannabis commerce for adults self extinguished itself.
Also too economic reality set in regarding true potential for the cannabis market place, under strict medical cannabis regulations, possibly 1:9 cannabis consumers are bona fide patients who benefit from accessing cannabis products, thereby, selling to the other 8 adult cannabis consumers under a tax-n-regulate policy for adults, for what ever reason compels them to purchase the product, makes up the largest possible marketplace.
8 is greater than 1…
Cannabis Arrests and Enforcement
After hitting an all-time record in 2007-2008, while still historically high, cannabis arrests start a slow but sure descent under a president, attorney general and drug czar with different priorities than the demonization of and incarceration for cannabis consumers.
Cannabis-related arrests in 2009 total 859,000 nationally (with 90% or more of the arrests for possession-only); 854,000 in 2010; 757,000 in 2011 and the year cannabis became legal in two states, 747,000 in 2012 (a 13% reduction in four years).
Public Opinion on Pot
Right along with voting public’s sentiments on changing cannabis laws, so naturally too in the general public surveys of the day capturing a clear and discernible upward trend, across the political and cultural divides in America, of more and more citizens telling pollsters that they favor treating marijuana in a legal manner similar to alcohol.
Cannabis legalization’s popularity quickly arose in America during this period from a respectable minority to a watch out institutions ‘the heathens are at the gate’ minority to a…majority…a marijuana majority.
In most democracies, if a majority of opinion is reached on one matter or another, then progress usually proceeds onwards—cannabis legalization, thankfully, turned out not be immune from this condition as well.
By 2009 42% of the public supported legalizing cannabis; by 2010 44%; 50% in 2011 and over 52% in 2012—a nearly 24% increase in only four short years.
Unsurprisingly, in a functioning democracy, commensurate to cannabis legalization’s increasingly political saliency, so too was the number of legislative bills being offered at the state and federal level—rising from dozens of bills to hundreds offered annually going forward.
Concurrent with the massive changes in laws, customs and public opinion, so too a reflective culture, capturing the changes underway. With marijuana legalization seemingly in full swing and with a wind in its sails, numerous TV shows and documentaries start to be produced focusing on the ‘green rush’ underway, much of it visually occurring on Main Streets in cities/towns all around the nation.
Business channel CNBC first aired ‘Inside America’s Pot Industry’ in 2011 (focusing largely on Colorado and California). The oft-broadcast documentary was a financial boon for the network, spawning two more CNBC‘ green rush’ documentaries in the coming years.
The History Channel broadcast in heavy rotation a well received two-hour pot documentary called ‘Marijuana: A Chronic History’ (History Channel too enjoyed financial success with the pot doc and have since produced two more).
In 2011 ‘A NORML Life’ was released by producer Rod Pitman documenting the marijuana law reform movement—mainly through highlighting the 40 years of NORML’s public advocacy work.
While not at addressing the topic in any direct way…the highly watched and awarded 2011 PBS series from Ken Burns ‘Prohibition’, both was stunning for its breadth reviewing the history of Alcohol Prohibition and how analogous in many respects it had become to the far longer government-imposed Cannabis Prohibition.
Two standout books during this important period in cannabis law reform are ‘Marijuana is Safer’, by NORML’s ’s 2010 follow-up to ‘Pot Culture’, the detailed chronicle of weed in media ‘Reefer Madness Movies’.
Another sign of the changing times in cannabis culture is the fast emergence of cannabis business centric magazines and conferences—getting away from High Times’ and Cannabis Culture’s more hedonistic and user-centric magazines and ‘Cannabis Cup Awards’—such as Marijuana Business Daily in 2011.
While not entirely accurate in his claims regarding the economic prospects of a world dependent on industrial hemp to survive, one of cannabis’ greatest public advocates for law reform, best-selling underground author and reefer raconteur Jack Herer passed away in 2010, suffering a heart attack whilst on stage at the 2009 Oregon Hempfest railing against the government for, then, seventy years of a wildly failed and cruel public policy.
Herer’s marijuana manifesto ‘The Emperor Wears No Clothes” is an important contribution to the end of Cannabis Prohibition in America.
Unfortunately, Jack never got to legally consume the herb he held in such high regard, but, however, his kids and their kids do enjoy such in modern America.
Allen St. Pierre is the vice president of communications for Freedom Leaf, a partner in the investment firm Sensible Alternative Investments and a NORML board member. In 1997, St. Pierre founded the NORML Foundation and was executive director for both NORML and NORML Foundation from 2006-2016.
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