Advocates disagree on best way to regulate medical pot
December 26, 2011
Kevin Graman, Spokesman-Review
Stevens County activists dressed in prison stripes recently were tossed out of Gonzaga University’s Cataldo Hall where Rick Steves, the travel writer and TV show host, was delivering a speech.
Members of the November Coalition, a foundation dedicated to ending the drug war, had no gripe with Steves’ hotel recommendations, but rather with his public support for an initiative to reform Washington’s marijuana laws that the protesters say falls short of decriminalization.
“New Approach Washington” is the name of the well-financed effort to bring before the Legislature early next year Initiative 502, which would treat marijuana like a public health issue rather than a crime.
Paid signature-gatherers had collected more than 312,000 names two weeks before the Friday deadline to deliver 241,153 valid signatures to the secretary of state.
The movement should not be confused with “Sensible Washington,” whose grass-roots volunteers have tried without success for the past two years to introduce a much more sweeping repeal of civil and criminal penalties for marijuana – most recently in the form of Initiative 1149.
Some might think that two movements with a common overarching goal would overcome their differences to repeal a marijuana policy that has cost millions of dollars to enforce and has resulted in the incarceration of thousands of people.
Instead the competing initiatives have created a schism between decriminalization advocates at a time when Eastern Washington medical marijuana vendors have been driven underground once again by federal prosecutors who are far more aggressive than their West Side colleagues.
Initiative “502 does not legalize marijuana,” said Douglas Hiatt, of Sensible Washington, a Seattle criminal defense attorney specializing in medical marijuana who co-wrote I-1149. He said I-502 allows a narrow exception under the law for 1 ounce of marijuana, and then creates “a ridiculous regulatory scheme” and overtaxes it.
Hiatt’s adversary is Alison Holcomb, an American Civil Liberties Union attorney who is campaign director of New Approach Washington and co-author of I-502.
“At a substantive level, people deserve to be presented with a thoughtful, well-considered proposal” that reflects “valid public health and public safety concerns,” Holcomb said.
I-502 creates a regulatory system, much like the liquor control system, in which a board oversees licensing of marijuana producers, processors and retailers, and imposes an excise tax of 25 percent at each step along the way to consumers.
Unlike state liquor stores, which voters just voted to eliminate by approving Initiative 1182, marijuana stores would be privately owned and operated. Sales tax and business and occupation tax also would be levied. Growing marijuana for personal use would continue to be illegal.
Most of the revenue generated by the excise taxes would be earmarked for drug abuse prevention, research, education and implementation of the new law. The Washington Institute for Public Policy would be tapped to do cost-benefit analyses. Part of the proceeds would fund student dropout prevention and outreach.
New Approach Washington is backed by large contributions, including $250,000 from Progressive Insurance CEO Peter Lewis. It also has an impressive array of supporters, including John McKay, former U.S. attorney for the Western District of Washington, and Dr. Kim Thorburn, former Spokane Regional Health District officer.
“I strongly want to see marijuana legalized for public health, for human reasons,” Thorburn said. “The war on drugs doesn’t work. It has filled up our prisons unnecessarily.”
Nevertheless, the outspoken Thorburn said she has learned something about politics in her years of public service, and marijuana deregulation is not going to pass if it’s not regulated.
“People aren’t going to be comfortable with an absolutely libertarian anything-goes,” she said.
Driving the debate
So New Approach found out through polling what bothers the public the most about decriminalization and wove a tailor-made initiative.
Two potential hurdles were voter fears of increased pot-smoking by youth and a greater chance of marijuana-related auto accidents. I-502 addresses both issues in ways that distress Sensible Washington.
First, decriminalization would apply only to adults 21 and older.
“What they did was apply a zero-tolerance standard to everybody under 21,” Hiatt said. “So if you are minority kid in the city, it’s open season.”
Holcomb responds that marijuana users 18 to 21 years old “are already criminalized” and that polling “tells us the public is most comfortable with the hard-alcohol model.”
But what annoys Sensible Washington backers the most is I-502’s “driving under the influence” provisions.
Drivers would automatically be found guilty of DUI if the amount of THC, the primary psychoactive compound in marijuana, is above 5 nanograms per milliliter of blood.
“Not a single medical marijuana patient that I know of would be able to drive legally,” Hiatt said, adding that such a DUI provision would be the toughest in the country.
In addition, he said, the 5-nanogram standard has no basis in scientific research, which is sorely lacking on the subject of driver impairment due to marijuana. Hiatt believes it is a misguided attempt to produce a law people can understand, like the 0.08 blood-alcohol standard, when it is “completely inappropriate to compare” marijuana to alcohol because of different tolerances and the way THC is metabolized differently in each individual who uses it.
Holcomb acknowledges that “the science around the THC impact on driving is not as robust as alcohol,” but what data are available suggest the 5-nanogram standard is “a workable guideline.”
“That’s why we have earmarked funds to study that exact issue,” Holcomb said. “For now, let’s err on the side of caution.”
However, the national medical marijuana advocacy organization Americans for Safe Access says testing standards for marijuana based on metabolites is extremely problematic.
“Studies have shown that marijuana may only have a minimal impact on driving performance,” ASA spokesman Kris Hermes said. Other studies have shown that levels well above 5 nanograms per milliliter can remain in the blood for several hours even though impairment may no longer be at issue.
Holcomb said law enforcement would still be required to have probable cause for an arrest and reasonable grounds to believe a driver is impaired by drugs before a drug test may be administered.
“The reality is we have had a medical marijuana law since 1998, and you just don’t see a lot of people getting pulled over and taken in for blood tests,” she said.
Hiatt is skeptical.
“I’ve been a criminal defense attorney for 20 years. Don’t talk to me about probable cause to pull somebody over,” he said. “(Police) can pull anybody over any time, and everybody knows it.”
Hiatt favors a broader approach to decriminalizing marijuana – similar to state withdrawal from prohibition in the early 1930s.
“Washington essentially took alcohol out of the state law,” he said. “Then they said to the feds, ‘If you want prohibition, you pay for it.’ ”
Hiatt presumes the Legislature is capable of crafting regulations for control of marijuana after it is decriminalized by a less onerous method than I-502, which he believes federal law would pre-empt anyway.
“What we would end up with is a really terrible DUI law and 1 ounce of marijuana with nowhere legally to buy it,” Hiatt said of I-502.
Holcomb said she doubts the federal government would expend federal resources going after people that are in clear and unambiguous compliance with state law. As for the recent federal prosecution of Spokane medical marijuana dealers, Holcomb suggested they were “operating outside the letter and spirit” of Washington law.
“We drafted I-502 to withstand a legal challenge,” Holcomb said. “But more importantly, we drafted it to present a solid policy proposal that will make it difficult politically for the federal government to come in and try to strike it down.”
If the requisite number of signatures is found to be valid, I-502 will be referred for consideration by the Legislature next month. If lawmakers fail to pass it, the initiative will go on the November general election ballot.
Seth Walser, of the November Coalition in Colville, fears signers of the New Approach petitions are confusing the drive with the Sensible Washington efforts, and that I-502 actually will be a step backward for medical marijuana patients.
“There are some really big differences, but the real issue is we have people gathering signatures (for I-502) who are not educating people as to what they are signing,” Walser said.
“It is not just a legalization bill but a bill that has significant unintended consequences,” he said. “We want a law that people have voted on in an educated manner and not just one that has managed to get its foot in the door.”