Before we get to my talk with Mr. Mirken, let's touch on the history of marijuana criminalization in the United States.
1915-1937: Twenty-seven states pass laws prohibiting the use of marijuana. Texas, New Mexico, Colorado, and Montana lead the way.
1937: The Marihuana Tax Act of 1937. At Congressional hearings, Harry Anslinger, Commissioner of the Federal Bureau of Narcotics, stated, "Marihuana is an addictive drug which produces in its users insanity, criminality, and death." Contrasting testimony came from Dr. William C. Woodward. Dr. Woodward was both a doctor and a lawyer, and served as Chief Counsel to the American Medical Association. He said, "The American Medical Association knows of no evidence that marihuana is a dangerous drug."
1951: The Boggs Act increases penalties for every drug offense by a factor of four, and for the first time, lumps marijuana with other drugs such as heroin and cocaine.
1956: The Daniel Act again increases the penalties for drug offenses in every category.
1956-1969: Virginia passes a series of laws making possession of marijuana more heavily penalized than violent crimes. First-degree murder calls for a mandatory minimum sentence of 15 years, while rape involves a mandatory minimum of 10 years. Possession of marijuana leads to a mandatory minimum sentence of 20 years, with no eligibility for parole or probation, and no possibility of a suspended sentence. Other states enact similar laws.
1970: The Controlled Substances Act. The law categorizes known drugs by schedule (while omitting alcohol and nicotine). Marijuana is included with Schedule One drugs: It is judged to have little or no medical use, and a high potential for abuse. Even then, including marijuana as a Schedule One drug was controversial. In 1972, the National Commission on Marijuana and Drug Abuse, commissioned by President Richard Nixon, recommended the decriminalization of small amounts of marijuana, and even went so far as to suggest that marijuana prohibition was unconstitutional.
Bruce Mirken is the communications director for the Marijuana Policy Project, the largest cannabis policy reform organization in the United States.
HJ: When the Justice Department told federal prosecutors not to prosecute medical marijuana distributors as long as they followed state law, you called it "the most significant change in federal policy on medical marijuana in at least three decades." Now that the dust has settled a bit, does the reality of what's happening in California match your expectations?
Mirken: Well, yes, as far as we can tell. Of course, not a lot of time has gone by since that announcement. That said, we haven't seen any new raids on medical marijuana distributers initiated by federal agents since the announcement. We're crossing our fingers and hoping that the Justice Department's stance continues.
HJ: Here in Shasta County and in neighboring Tehama County, communities have issued moratoriums on medical marijuana establishments. Are such actions by municipalities becoming common in California?
Mirken: Well, those sorts of things have been going on for a while. A fair number of those local actions have been happening, so I guess we'd have to say that yes, they are common. We think they're unfortunate, and we think it makes much more sense to establish a reasonable set of regulations, rather than ban medical marijuana dispensaries outright. That's been done successfully in places such as San Francisco and Oakland.
HJ: Do you think the answer would be for the state to step in and more actively regulate dispensaries?
Mirken: That might be the answer. I know that there is some disagreement within the medical cannabis movement about more state involvement. Some people don't trust the state, and I understand their feelings. But what we have right now is a fairly dysfunctional local patchwork of policy and regulation. Some communities have been very hostile about allowing any effective patient access at all. Los Angeles is an example, where we're looking at the possibility of a severe crackdown on medical cannabis facilities. In that light, I think it's time to at least give consideration to statewide regulation and licensing.
HJ: According to a recent Gallop poll, 44% of Americans now favor outright legalization of marijuana, while in 2000, only 31% were in favor. Why do you think the tide of public opinion is moving toward a greater acceptance of legalizing marijuana?
Mirken: I certainly can't claim to have a definitive answer to your question, but I think a number of things have happened. One is simply demographics. The percentage of our population who've had hands-on experience with marijuana, either themselves or by knowing people who've used it--the people who grew up in the '60s and '70s and later--has grown. The older generations, those people who tended to harbor the most stereotypical and ill-informed views on the issue, have been dying off, to put it bluntly. So yes, I lot of the shift is simply due to demographics. If you look at the polling, it's historically been the voters over 60 who've been the most hostile to reform. I think other things have happened to influence the shift in attitudes. It's grown clearer that lots of successful, prominent people--ranging from Olympic swimmer Michael Phelps to our last three presidents of the United States--have used marijuana and gone on to lead very successful lives. That's helping to educate people that the demonization of the drug is really unwarranted. Another thing I think has happened has been the realization that by keeping marijuana in an unregulated criminal underground, we're essentially funneling profits to criminals and gangs--including those dreadful Mexican drug cartels. I think all of these aspects are coming together to cause people to rethink the issue, and that's a healthy thing.
HJ: Guidelines for quantity limits set forth by California's Health and Safety Code state that those limits are based on the "dried mature processed flowers" of female plants, not on leaves, stems, or seeds. Are people often getting arrested in error for exceeding quantity limits?
Mirken: I think that varies a lot from locality to locality. Some police departments are more educated about the code, and some are more sympathetic to medical marijuana than others. Those limits are not rigid limits in the first place; they're really sort of a "safe harbor." If you're under those limits, you're presumed to be operating legally as a medical marijuana patient. Possessing quantities over the limits doesn't mean that you're necessarily in violation of the law, but it does mean that you may have to prove that you have a medical need for that amount. Frankly, there are places in the state--I won't say a lot of places, but they exist--where law enforcement officers will find any excuse they can to arrest people. We've heard stories of people who've had encounters with their local police and have been told, basically, "We don't recognize that medical marijuana crap here." Now, that's not what they're supposed to do, but you will find some folks in law enforcement who act as if they're a law unto themselves.
HJ: In May of last year, the California 2nd District Court of Appeal ruled that quantity limits set forth by legislators were unconstitutional. The case is under review. Are you aware whether any deliberations are under way on the case?
Mirken: They actually just went through a round of oral arguments on the case. What was interesting was that lawyers on both sides were in relative agreement that the law should not be tossed out entirely, but should be clarified as to how it's supposed to work, and that it should be reiterated that the quantity limits are not rigid. It will be interesting to see what the court does. My guess is that the results will be something reasonable, and will provide useful clarity for all concerned. I hope so.
HJ: If we were to see marijuana legalized in California during the President Obama's tenure, how would you expect the federal government to respond? Would the 10th Amendment prevail?
Mirken: That's a really interesting question. Frankly, how the federal government responds might be different if it happens in Obama's second term rather than his first. Politics sometimes makes people do ugly things. But, I think it's a question of what California or any other state does. It's one thing to remove penalties for possession; it's quite another to set up a legal, regulated system of sales such as what we now have with alcohol. I really don't know what the feds will do, but I do know that these types of reforms are going to start at the state level; the feds are not going to move first. There may be a period of friction, but sooner or later, common sense is going to prevail. It may take a few years, but it will prevail.
Hal Johnson escaped from southern California 16 years ago and lives in Shasta County with his wife and son. He's an offshore helicopter pilot who often finds writing more frightening than flying.