Chronic debate

Pub date August 19, 2009
WriterSarah Phelan

For decades, proponents of marijuana reform have argued that cannabis is less dangerous than alcohol or cigarettes, has legitimate medical uses, and should be decriminalized on the grounds that prohibition doesn’t work.

In 1996, these arguments helped convince California voters to approve Proposition 215, which allows the use of marijuana for medical purposes. And in March, U.S. Attorney General Eric Holder signaled a major change in federal drug policy when he said that the Justice Department does not plan to prosecute medical marijuana dispensaries that operate legally under California law.

But the federal government still classifies marijuana as a Schedule 1 controlled substance that has no medical value and a high abuse potential. As a result, cultivation, distribution, and sales of pot primarily occur on the black market, a shadowy mix of small-timers and powerful cartels.

Data from the National Survey on Drug Use and Health (NSDUH) suggests that U.S. growers produced 22 million pounds of marijuana in 2006, worth $35.8 billion, and that California accounted for almost 39 percent of U.S. pot production.

Now, with California’s economy in the crapper, the state budget a mess, and federal judges ordering substantial reductions in California’s prison population, reform advocates are making an intriguing argument: if state or local governments legalize and tax even a fraction of marijuana sales in California, the state could see billions of dollars in new annual revenue and reduced enforcement costs.

Assembly Member Tom Ammiano recalls some laughter in February when he introduced Assembly Bill 390, state legislation to regulate marijuana much like alcohol. "But the budget fiasco has made some people who were dismissive take a harder look," Ammiano said.

A recent California Board of Equalization analysis of Ammiano’s bill estimates that if the state charged $50 per ounce, California would generate $1.4 billion in marijuana taxes annually.

Voters in Oakland also advanced the marijuana policy discussion last month when they approved a special tax on the city’s medical cannabis dispensaries. And in August, a three-judge federal court ruled that California must develop a plan to reduce its prison population by 44,000 over two years.

The public also seems to support making a change. In April, a Field Poll confirmed that for the first time a majority (56 percent) of California voters support legalizing pot.

Depite these advances, Ammiano says he wants to be strategic with his bill, gradually building support. "That’s why we made it a two-year bill," Ammiano said. His bill is scheduled for its first hearing at the Public Safety Committee, which Ammiano now chairs, by year’s end.

But some Bay Area activists aren’t waiting on Ammiano. Last month, Richard Lee, who operates four medical marijuana dispensaries in Oakland, filed initiative paperwork with the state and hopes to gather enough signatures to qualify a Tax Cannabis initiative in 2010.

Ammiano’s bill and Lee’s initiative allow recreational use of marijuana, penalize driving under the influence, and charge a $50 fee per ounce. But they differ around regulation and how to deal with the overarching problem of federal law. Ammiano’s legislation assumes a statewide system that mirrors the federal Department of Alcohol Beverage Control. Lee’s initiative leaves regulation to each county, similar to the patchwork approach to alcohol in other states.

Lee believes his initiative gives people more options. "We can’t order people to break federal law — that would be thrown out," Lee said. "Forty jurisdictions already permit medical marijuana cooperatives in California. So we already have that system, and we’ll follow that reality."

Sup. Ross Mirkarimi, who authored San Francisco’s medical cannabis dispensary regulations, believes it’s important to lay the groundwork at the local level. He points to the relative lack of growth in new municipalities that allow medical dispensaries since voters approved Prop. 215, calling it evidence of pot-related NIMBYism.

"Everyone says they support it, but they don’t want it in their own backyards," said Mirkarimi, who wants San Francisco to become the first U.S. city to add marijuana to the list of medicines it dispenses. "But the city Attorney’s Office is shy about pushing this envelope."

Mirkarimi wants to follow Oakland’s example and add a gross receipts tax to medical marijuana dispensaries in San Francisco.

But the legalization push has its fervent critics. At a recent Commonwealth Club debate on the economics of marijuana, El Cerrito Police Chief Scott Kirkland, who led the charge to ban medical dispensaries in his city, tried to discredit arguments that legalization will save money.

"I’m very disappointed with the state," Kirkland said, claiming that the BOE’s analysis drew almost exclusively on the work of Jon Gettman, a former director of National Organization for the Reform of Marijuana Laws.

"We have to have statistics we can rely on," said Kirkland, who then cited the same BOE report — it estimates that pot prices will drop 50 percent and consumption will increase 40 percent — to support his contention that legalization will lead to increased substance abuse.

Kirkland also challenged the notion that Mexican drug cartels will leave once the pot business is legitimized and regulated. "They understand that the money involved is astronomical," he said. "It’s wishful thinking that if you legalize marijuana, all of a sudden the cartels go away."

He also disputed claims that legalization would help empty state prisons. "It’s very common for advocates to associate legalization with reducing the costs of incarceration, but it’s a fallacy," Kirkland said. "It’s very rarely that a person goes to prison for their original offense."

Kirkland topped off his attack by citing the state’s June 19 decision to add marijuana smoke to its Proposition 65 list of substances known to contain carcinogens.

But BOE spokesperson Anita Gore refuted claims that their analysis relied entirely on reform advocates’ research. "Being as this is an underground activity, the resources are limited," Gore said. "But our researchers and economists used econometric models that are generally accepted and looked at all the available resources, which included academic and law enforcement studies."

Gettmann told the Guardian he uses data from NSDUH, the U.S. Drug Enforcement Agency, the Office of National Drug Control, and the Bureau of International Narcotics — sources the prohibitionists also draw on. He admits that it’s hard to quantify a black market.

"But it’s easy for anyone to understand basic regulatory economic theory," Getmann said. "Marijuana use produces costs for society, but is largely untaxed. So users and sellers reap benefits, while taxpayers bear the costs."

He believes many advantages of legalization are qualitative. "It’s a better regulatory system for financial and fiscal reasons and for restricting access on the part of teenagers," Gettman said.

Stephen Gutwillig, state director of the Drug Policy Alliance, points to research by the Center for Juvenile and Criminal Justice in San Francisco, which found that arrest rates for everything in California have declined since 1990 — with the exception of low-level marijuana crimes. CJCJ’s research shows that rates for this group increased 127 percent since 1990, and 25 percent in the last two years.

"It’s a system run amok," Gutwillig said. He notes that of the 74,000 people arrested for marijuana-related offenses, 20,000 are youth. "The marijuana problem is increasingly becoming a mechanism for social control of young black and brown men in California."

"We feel that money is definitely a fine consideration," he continued. "But even if reguutf8g marijuana didn’t produce a dime, these punitive, wasteful laws must end."

Gutwillig’s group has estimated that legalization would save California’s state and local governments $259.7 million annually in court and incarceration costs alone, a figure DPA researcher Betty Lo Dolce said is very conservative.

"I don’t know if folks have a secondary offenses, so I don’t know if marijuana was legalized, if they wouldn’t be in state prison," Lo Dolce said. "Or conversely, if they may not have been arrested for drug-related crimes, but then those charges got dropped and they ended up inside because of secondary drug-related offense."

Bruce Mirken, communications director for the Marijuana Policy Project, believes that advocates of California’s Campaign Against Marijuana Planting (CAMP) should have to justify that the program does some good.

"The idea that enforcing prohibition and seizing 5.5 million plants last year would be less costly than legalizing is crazy," he said.

But what about the public health costs?

UCLA pulmonologist Dr. Donald Tashkin said that the state added marijuana smoke to its Prop. 65 list, based on finding carcinogens in that smoke. "But you cannot translate chemistry into chemical risk because you have to take into account potential opposing effects," Tashkin said.

His research has found no association between heavy marijuana use and increased risk of lung cancer and pulmonary disease. Conversely, he and Dr. Donald Abrams, a cancer researcher at UCSF, have found that THC, marijuana’s main psychoactive ingredient, has an anti-tumor effect.

"The bottom line is that you cannot use pulmonary risk as a justification for not legalizing it," Tashkin said.

Dr. Igor Grant, director of medical cannabis research at UC San Diego, said the question around marijuana smoke is quantity. "It’s not like cigarettes," he said. "Most people don’t smoke 20 joints a day for 20 years. But even if it was declared safe for patients, you wouldn’t want parents filling the room with smoke."

James Gray, an Orange County judge and a member of Law Enforcement Against Prohibition, believes marijuana is here to stay. "Instead of moralizing and punishing people for failing on moral chastity grounds, let’s manage its use," Gray said. "If people are using it, they should be able to know what’s in it."

The most harmful thing about marijuana, Gray contends, is jail. "The remedy is far more dangerous than the disease itself," he said. "There are thousands of people in prison because they did nothing but smoke pot, and a dirty drug test was a violation of their parole…. But I understand that some people in law enforcement stand to lose a great deal, and that the Mexican cartels are going to invest a lot of money in Madison Avenue advertising."

Lee, too, acknowledges the opposition, but remains hopeful. "People are coming out of the closet," he said. "That’s what caused the gay rights movement to take off. It’s starting to happen around marijuana use."