My law school exit paper - GET WISE; LEGALIZE!!!

At Ave Maria School of Law, all students are required to take a class in their final semester called Law Ethics and Public Policy. Most of the class is spent listening to a blowhard uber-religious-right professor Safranek talk about why gay marriage is the death of America, blah blah blah... Our grade for the class is based on writing a law, giving the public policy reasons for supporting that law, explaining why it has a reasonable chance of passing, and showing a strategy for its enactment. For me, the law is to change our treatment of marijuana from conditional prohibition (except for medical purposes) to have it be treated the same as alcohol - 21 and over, sold behind the counter (like cigarettes), and tax and regulate it. I worked on California proposition 215 back in 1996 for medical marijuana. Since then, I have become convinced that the war on drugs absolutely needs to end. It is the wrong way to deal with the issue of drug use. While I would prefer ending all major drug restrictions, from cannabis to crack to insulin to asthma meds, I wrote this paper because the evidence is easiest to support and because I knew it would piss of Safranek. I leave out the text of the law, as it is some 50 + pages. However, the arguments section of the paper I include below:

PART I - INTRODUCTION

In 2002, shortly after graduating from the University of California, Santa Cruz, I gathered a group of four like-minded individuals, liberals and libertarians, and authored a ballot initiative for the State of California to legalize cannabis (derogatorily referred to by many as marijuana): for adult recreational use; and for commercial manufacture; and for sale at various retail locations using a licensing system already in place, using where possible, the more restrictive of the access restrictions of hard liquor and tobacco; with full regulatory mechanisms in place. The group that authored this initiative is still intact and has discussed pushing for ballot access in either the 2010 or 2012 election. The text of the initiative follows in PART V.

Part II of this paper discusses the public policy benefits of enacting the California Cannabis Legalization and Taxation Initiative, including promoting respect for the law, respect for the individual, public health, national security, public safety, and the bloated state budget. Part III examines how likely this law is to be passed in California, including the opinion of the California Secretary of State, California leadership on ballot issues like this topic, and the voting history on this and similar issues (medical marijuana) by the public of California and neighboring (and politically similar) Nevada. Part IV examines the three ways in which the federal government could get out of the war on cannabis users in California if this initiative is passed, including the FDA, Congress, and the Supreme Court. Part V is the text of the initiative, edited as described above.

PART II - POLICY GOALS FURTHERED BY ENACTING THIS LAW

The legalization of cannabis will promote respect for law. The legalization of cannabis will promote respect for the individual. The legalization and taxation of cannabis will promote public health. The legalization of cannabis will promote national security. The legalization and taxation of cannabis will aid the fiscal condition of California.

Promoting Respect For the Law

Cannabis has been known to be used by many of our nation's leadership. Current President George W. Bush, former President Bill Clinton, former Vice President and former and possible future Presidential Candidate Al Gore, former Speaker of the House of Representatives and potential Presidential Candidate Newt Gingrich, and current Presidential Candidate Barak Obama have all admitted to or strongly implied past cannabis use, with only Bill Clinton claiming to have not inhaled (who did NOT have sex with that woman Monica Lewinski). Yet in spite of each of them publicly admitting to committing a federal felony and at least a misdemeanor in some State, not one of them has been punished for doing so. According to the Office of National Drug Control Policy's marijuana facts web page (http://www.whitehousedrugpolicy.gov/drugfact/marijuana/index.html), "[t]here were a total of 1,846,351 state and local arrests for drug abuse violations in the United States during 2005. Of the drug arrests, 4.9% were for marijuana sale/manufacturing and 37.7% were for marijuana possession." Multiplying 1,846,351 by 37.7% = 696,074 persons arrested in one year for simple possession of cannabis. Somehow George, Bill, Al, Newt, and Barak must have missed detection.

Seeing that 700,000 people per year face arrest and possible incarceration per year for use of cannabis raises the question of how many Americans use cannabis? Looking again at the ONDCP,

Marijuana is the most commonly used illicit drug. According to the 2005 National Survey on Drug Use and Health (NSDUH), an estimated 97.5 million Americans aged 12 or older tried marijuana at least once in their lifetimes, representing 40.1% of the U.S. population in that age group. The number of past year marijuana users in 2005 was approximately 25.4 million (10.4% of the population aged 12 or older) and the number of past month marijuana users was 14.6 million (6.0%).

If 40% of Americans have been willing to use cannabis at some time, and 10.4% have been willing to use cannabis in the past year, in violation of the law with approximately 700,000 people facing arrest and incarceration for cannabis use, keeping cannabis illegal is clearly promoting disrespect for the law. For those who do not grow their own (an additional disrespecting of the law), they are getting it from someone else, involving some form of illegal transaction, often with users buying from someone who might ask them if they would like a little smack or blow to go with the ganja. People follow habits and keeping cannabis illegal gets 97.5 million people used to breaking the law.

Legalization of cannabis would aid the overall respect for law. Rather than purchasing a sack of doobie from the guy in the trench coat on the street corner, cannabis consumers will be able to go to Walgreen's ask the sales clerk for a pack of Marlboro Greens, pay a tax, and go home without fear of arrest. Public use would still be prohibited under the initiative, just as it is currently illegal to openly consume beer in public. Private facilities, including restaurants and bars already are barred from allowing customers to smoke cigarettes and the same would be true of cannabis consumption. Driving under the influence, possession in a school area, sales to a minor or allowing a minor to possess would all remain illegal and penalties should be strictly enforced, just as with alcohol and tobacco. These are valid public safety concerns and if consumption itself is legal, the additional respect for law will make it likely that people will follow these laws approximately to the extent that the public follows them with regard to alcohol and tobacco.

Promoting Respect for the Individual

The prohibition of cannabis use is a violation of the natural law. Prohibition is nanny government having to tell each person how to live their personal life. While this argument goes far beyond mere cannabis legalization, it is a fundamental right of all human beings to consume(eat, drink, smoke, inject) whatever they wish, so long as they accept the natural consequences of doing so. This would include accepting the legal consequences of how they behave while under the influence of whatever they chose to ingest. Perhaps the only exception to this rule would be if a persons improper consumption could actually harm the public health, such as improperly taking antibiotics which can lead to drug resistant bacteria.

Promoting Public Health

Many of the arguments over the years against the legalization of cannabis have been based on the idea that marijuana is a gateway drug. The only way in which cannabis becomes a "gateway" drug is because of its illegal nature. People who use cannabis often have to resort to rather unsavory characters to get access to their intoxicant of choice. These people will make it clear that they also have opiates, cocaine, and hallucinogens available. To the extent that there is a gateway effect of cannabis, it is caused by the legal status of cannabis and not by cannabis itself. As for the fact that most people who use hard drugs used cannabis first (ONDCP), I would be interested in a study of how many used caffeine before hard drugs. Or what about nicotine?

Not a single person has died as a direct result of cannabis use. In all of history, not a single person has had a cause of death of cannabis overdose. And shockingly, not only does cannabis not cause cancer, one major study has shown that cannabis might help prevent lung cancer!
The largest study of its kind has unexpectedly concluded that smoking marijuana, even regularly and heavily, does not lead to lung cancer.

The new findings "were against our expectations," said Donald Tashkin of the University of California at Los Angeles, a pulmonologist who has studied marijuana for 30 years.
"We hypothesized that there would be a positive association between marijuana use and lung cancer, and that the association would be more positive with heavier use," he said. "What we found instead was no association at all, and even a suggestion of some protective effect."
http://www.washingtonpost.com/wp-dyn/content/article/2006/05/25/AR2006052501729_pf.html

Currently, cannabis is listed as a schedule 1 drug, meaning that it has high of dependency and no known medical use. BULL. This study was paid for by the National Institute for Drug Abuse (NIDA), a pro-drug war government agency. NIDA publicly opposed California Proposition 215, the medical marijuana initiative in 1996 that I worked on. If NIDA is saying that cannabis has a cancer-protective effect, is it really reasonable for the FDA to interfere with and prevent studies on medical cannabis because of its schedule 1 status?

Legalization of cannabis will result in proper studies being done do show what areas cannabis really is a good medicine. For those Americans on a tight budget, growing your own medicine is certainly going to be cheaper than whatever Big Pharma wants to charge. The NIDA is saying cannabis has a cancer-protective effect. Just wait until real health professionals (rather than partisan government hacks) get to look at this.

As a final point on the increased health benefits to the public that will result from the legalization of cannabis, the street-corner-guy... the one who shorts the ounce by a gram, causing a few bullets to fly, he also sometimes 'cuts' the product with something else. While it is less common with cannabis than with other drugs, spiked products are found on the street on a daily basis. With cannabis, the more common issue is the strength of the drug. The local dealer might normally get 3%TCH cannabis. Then one day, the supply changes. The customer doesn't realize that now he is getting 12%TCH cannabis. Thinking that he is smoking the same joint he always smokes, he actually ingests 4 times as much. Allowing cannabis to be sold in packaged, labeled, and regulated containers means that the consumer can know that he is getting the 3%THC joint he wants. Or, he can use the stronger cannabis and smoke less. Either way, knowing what you are taking is better than the status quo.

Promoting National Security

In the aftermath of the September 11th, 2001 attack on our country, the federal government began running repeated advertisements about the link between drugs and terrorists. Specifically, they ran one ad many times over the course of many months that claimed that when you purchase a joint, you are not helping that 'aging hippie', but instead, that your profit is going to support Osama Bin Laden. Other ads claimed that the profits from marijuana sales encouraged Latin American drug cartels that slaughter innocent families. If the profits of cannabis consumption are indeed going to Osama Bin Laden and murderous drug cartels, then the legalization of cannabis would deprive these despicable people of a source of their funding and would divert those funds toward legitimate American businesses.

Promoting Public Safety

The legalization of cannabis will lead to less violence on the street. The legalization of cannabis will lead to less non-fatal overdoses (There has never been a recorded fatal overdose of cannabis). The legalization of cannabis will lead to less prison overcrowding and therefore less violent prisoners being released on parole due to that overcrowding. The legalization of cannabis will cause hundreds of thousands of people who definitely will be put back in society (simple possession) to not have to live among thieves, murderers, rapists, and the like where they currently earn graduate degrees in how to be criminal.

Helping With the Budget

The initiative proposed here will tax the sale of cannabis as a source of revenue to aid drug awareness. While this is a health issue, it is also a state budget issue. Millions of dollars will be saved in the state budget by using cannabis taxation as a source of funding for drug awareness programs. In addition, the decreased law enforcement costs, including the astounding cost of incarceration of cannabis users will save significant dollars and allow police to properly prioritize. Catching murderers is more important than jailing the local pothead. And with jail overcrowding and ridiculous overcrowding measures such as releasing prisoners early on a FIFO basis, violent felons are a major beneficiary of continued cannabis prohibition.

Legalization of cannabis will have significant benefits for many areas of public policy, including promoting respect for the law, respect for the individual, public health, national security, and the bloated state budget. Get wise. Legalize.

PART III - EVIDENCE IN FAVOR OF ENACTABILITY

When the group I worked with was writing the text of the initiative, we got help on parts of it from the California Secretary of State. The Secretary of State is obliged under law to aid in the drafting of an initiative. They are required to charge unless they believe that the subject in question has a reasonable chance of passage. They did not charge us for the help. Therefore, it was the determination of the Secretary of State of California that the Cannabis Legalization and Taxation Initiative has a reasonable chance of passing. As will be seen in the rest of this section, there is good reason to agree with the Secretary of State on this:

California was the first state in the country to implement a medical marijuana law. I worked on the ballot initiative for that law, Proposition 215 in 1996. Since then, Alaska, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington have joined on. Ten other states, plus the District of Columbia have symbolic medical marijuana laws on the books as well. The D.C. area voted 69% in favor of actual legalization of medical marijuana (instead of just symbolic), however the vote count was never made formal because of an act of Congress.

Quite interesting is the case of Nevada, California's libertarian neighbor. In 2002, Question 9 posed a marijuana regulation measure on the ballot. It failed 69%-31%. In 2006, Question 7 again posed a marijuana regulation measure for the voters. It too failed, but this time, by 56%-44%. In only four years, the public shifted 13%. If it were to shift another 13% in four years, in 2010 the vote would pass by an overwhelming 57%-43%. However, historically, the libertarian Western US ballot initiative trends succeed first in California. Proposition 13 in 1976 began the property tax revolution. Proposition 215, as noted above, was the beginning of a large trend across the country over the last 11 years. Nevada will get over the hump. After the California Cannabis Legalization and Taxation Initiative.

Considering the decision by the California Secretary of State to not charge for helping with the drafting of the text of this law, and considering California's historical leadership in the Western United States on ballot initiatives, including the success and copying by other states of Proposition 13 and 215, and considering California's leadership on cannabis issues in general (Prop 215), and considering the neighboring (and politically similar) Nevada's recent trends on legalization, there is strong reason to believe that the successful enactment of this initiative is not just possible but probable at some point in the next 10 years.

PART IV - REMOVING THE FEDERAL IMPEDIMENT TO IMPLEMENTABILITY

There are three ways that the federal government can exit the war on cannabis users. The head of the FDA could reclassify cannabis from its current schedule 1 rating. Congress could pass a law legalizing marijuana. The Supreme Court could determine that the federal law is unconstitutional.

While a law change could force the FDA head to keep cannabis at schedule 1 if he were to so order the move, this would require the President and Congress to act, just like any other law. He can make the change by fiat tomorrow. No politician needs to stick his neck on the line to voters. An unelected official can take care of the job. All that needs to be done is lobby hard enough. Seriously, there is absolutely no reason why cannabis is a schedule 1 drug. It does have some addictive properties, however, since 94 million people have used it in our country, but only 6% of the population used cannabis last month, then it can't be all that addictive. It certainly is not physically addictive. As for whether there is known medical use, I cite to the NIDA (a federal agency) study mentioned above. Keeping cannabis at schedule 1 can only be interpreted as the government saying that prevention of lung cancer is not a valid medical use. The FDA should reschedule cannabis immediately.

The second way that the federal government could exit the war on cannabis users is through explicit federal legislation. The recent Republican meltdown in 2006 was in large part due to the Republican party abandoning its principals of small government and federalism. Most of the current Republican presidential candidate field has gone out of its way to point out how they are more small-government and federalist than the next guy. If the Republicans win the 2008 presidential elections, it may well be a candidate who would show respect for federalism and decide to not interfere with California's decision. If Democrats get elected, they may be persuadable on the issue. So long as they see it as a right granted by government, legalization of cannabis does not contradict Democratic values - especially if they can tax and regulate it.

The Supreme Court, in Gonzales v. Raich, 545 US 1 (2005) pretty much torpedoed any serious consideration of using the high court to overturn cannabis prohibition. However, there is a slight hope. When the court looked at whether the FDA should regulate tobacco, it acknowledged our country's experience with the 18th and 21st amendment shed some light on what our country finds acceptable in terms of Congress interfering in matters of tobacco. This argument should be explored further. The 18th and 21st Amendments show explicitly what Congressional power limits are on areas of intoxicants and consumables. Specifically, the 21st Amendment allows Congress to prohibit "The transportation or importation into any State, Territory, or possession of the United States for delivery or use there in of intoxicating liquors, in violation of the laws thereof". This last clause... "in violation of the laws thereof..." This really should shed a whole lot of light on what limits the constitution imposes on Congress. This argument should not be presented to the current Court. The Raich case showed that the Court is not yet ready to adopt this line of logic. O'Connor and Rehnquist were both in the dissent, so even if Alito and Roberts were to join with Thomas (the third dissenter), at least two more justices would likely have to change before there would be any chance at a majority. In all likelihood, the Supreme Court is not the best method for removing the federal government's interference in the implementation of this initiative.

Overall, the prospects of getting the federal government to recognize California's right under the 9th and 10th Amendments to set its own cannabis policy are dim but not as non-existent as the Raich decision would make one believe. The FDA can change the situation immediately, either completely removing marijuana from the list of scheduled substances or reducing it to a lower schedule, thereby allowing medical marijuana. Congress and the President can change the law. Also, there are still valid arguments to make to the Supreme Court. While none of these appear extremely likely in the near future, there is at least some chance that the FDA might realize that a substance that even NIDA says can help protect against lung cancer does not "have no known medical purpose."