PRISON--FOR POT?

Massachusetts voters can Just Say No to bad drug policy.

I call Dick Evans to interview him. But he has his own question-or,
more specifically, an assignment-for me: "I challenge you to find
anyone who believes adults who choose to use marijuana responsibly
deserve to be arrested, prosecuted and locked up."

Evans is pretty sure I'll come up empty; he's even willing to bet a
lunch on it. A Northampton attorney and former member of the Board of
Directors of the National Organization for the Reform of Marijuana
Laws, or NORML, Evans spent decades advocating for the reform of
drug laws, and while officially "retired" from the cause, he still
tracks it closely.

These days, there's a lot to track. In November, Massachusetts voters
could have the chance to decriminalize the possession of one ounce or
less of marijuana, making it a civil, not criminal, infraction. On
the federal level, U.S. Reps. Barney Frank, a Massachusetts Democrat,
and Ron Paul, a Texas Republican (and renegade presidential
candidate), are co-sponsoring legislation that would remove federal
penalties for the possession of small amounts of marijuana. ("The
notion that you lock people up for smoking marijuana is pretty
silly," Frank said as he announced the bill on Bill Maher's HBO show
"Real Time." That's one for Dick Evans.)

Add to that the increasing public debate about who ends up behind
bars for drug crimes, and how much we as a society pay to prosecute
and imprison them, and it's tempting to say there's a groundswell of
interest, from across the political spectrum, in re-examining our
drug laws. But as Evans and other long-time activists will tell you,
when it comes to drug policy, change is slow in coming. Progress is
made in small, incremental steps, which sometimes fall far short of
what reformers would like to see.

"I think we can get lost in the increments," says Evans. While small
changes can be important, he urges that focus be kept on what, in an
email to the Advocate, he called "the 900-pound gorilla that
terrifies so many people, and that is the broad question of whether,
in 2008, the responsible use of marijuana by adults with no visible
harm to themselves or anyone else ought to remain a crime, wrecking
people's lives and diverting public revenues from urgent needs."

Plenty of Massachusetts voters share Evans' view, at least according
to a series of questions that have appeared on local ballots in
recent years.

Since 2000, activists-most notably, the Massachusetts Cannabis Reform
Coalition, or MASS CANN (the state affiliate of NORML)-have worked to
get non-binding public policy questions on marijuana reform on the
ballots in four state Senate districts and 33 Representative
districts. All were approved by a majority of voters.

A handful of the ballot questions addressed the legalization of
medical marijuana; there was also one that would allow the growing of
industrial hemp, and another to allow the state-regulated-and
state-taxed-sale of marijuana to adults.

But the vast majority of the questions-28 of the total 37-went
directly to the issue of decriminalization, asking voters whether
possession of a small amount of pot should be a civil violation.
Voters in every district approved the question, by majorities ranging
from 59 to 76 percent.

While public policy questions are non-binding, they do serve as an
important way of demonstrating to legislators the priorities of their
constituents. Whether or not legislators heed those messages is, of
course, another matter.

At the very least, the message was heard by activists, who saw
Massachusetts presenting a prime opportunity for reforming marijuana
laws. That led to the creation of the Committee for Sensible
Marijuana Policy, or CSMP, the group behind the proposed November
ballot question.

Under current Massachusetts law, marijuana possession can lead to
jail, probation or a fine; a conviction can also result in the
suspension of your driver's license, the loss of your right to
possess firearms and the denial of student loans. While first
offenses without mitigating circumstances are typically continued
without a finding and dropped after one year if the defendant has no
further legal problems, critics of the system say there are a number
of ways prosecutors can pursue a tougher penalty-if, for instance,
the arrest happened near a school zone. They also contend that the
defendant's race and class can affect how aggressively a drug charge
is pursued, a contention borne out by several recent studies.

Even if a defendant's charges are continued and then dropped, she
still has to go through the costly and onerous legal system; as MASS
CANN puts it, "Prosecution itself is used as a form of
punishment."

If approved, the November ballot question would amend state law so
that adults found guilty of possessing one ounce or less would face a
$100 fine; those under 18 would also have to complete a "drug
awareness program" and perform community service. The initiative has
been endorsed by the American Civil Liberties Union as well as NORML
and MASS CANN.

Last fall, CSMP cleared the first hurdle for getting the question on
the ballot, collecting about 81,000 valid petition signatures (15,000
more than needed) in support. Now the group is conducting a second
required signature drive, and needs to collect another 11,000 valid
signatures by June 18.

At the same time, the Legislature is considering similar legislation
that would create civil penalties for personal possession by adults.
Given the historically slow progress of such bills, though,
reformers see the ballot question as a way to put the issue directly
in the hands of voters. "On this issue, the public is ahead of the
politicians," says Whitney Taylor, manager of the ballot question
committee.

To Taylor, existing laws regarding marijuana are too harsh. A person
convicted of possessing a relatively small amount of pot could end up
with a criminal record that would haunt him for years, standing as a
barrier every time he applies for a job, a loan, an apartment.
According to CSMP, 7,500 new criminal records are created each year
in Massachusetts for people found guilty of possessing one ounce or
less of pot.

The criminal record issue has a lot of traction on college campuses.
"Historically, the war on drugs has been waged to protect young
people. After decades of failed punitive prohibitionist policies, we
as young people are here to say this war is actually hurting us,"
says Tom Angell, government relations director for Students for
Sensible Drug Policy, a national group with chapters at about 125
high schools and colleges.

SSDP focuses on drug policies that affect young people, such as
student drug testing. One particularly hot issue has been the 2000
Higher Education Act, which denied federal financial aid to students
convicted of any drug offense, even if it happened before they were
in college. While the law was amended in 2006 to apply only to
students convicted at the time they are receiving aid, blocking
anyone's access to education is wrong-headed, Angell says. Students
forced to drop out of college for financial reasons will feel the
repercussions for a lifetime; some may even be more likely to turn to
drugs when other opportunities are denied. "We think that's an
incredibly counter-productive policy," Angell says.

And in these days of municipal shortfalls, reformers have in their
arsenal an especially persuasive argument: cost savings. Whitney
points to a 2007 study by Jeffrey Miron, a Harvard economist, that
found that Massachusetts police departments spend a total of $29.5
million a year to arrest and process suspects for possession of an
ounce or less of pot.

"Let's let that $29.5 million stay in police coffers," Taylor says.
"Let's let it stay in local communities and fight violent crimes."

Several studies have found that in the 11 states that already have
similar laws in place-some going back as far as the 1970s-marijuana
use and crime rates have not increased. "'Use is going to go through
the roof; addiction is going to go through the roof'-all the
Chicken-Little arguments the opponents will make did not come to
fruition," Taylor says.

In making the case for the ballot question, advocates tread
carefully. They emphasize the cost-saving aspect of
decriminalization, and point to the backing of sober-minded
economists, including the 500 who endorsed a 2005 study by Miron that
estimated that federal, state and local governments could save $7.7
billion a year if pot were legalized.

And, no doubt aware of the risk of being dismissed as leftover
hippies or punky college kids, reformers enjoy pointing to the
surprising array of people who have supported decriminalization:
George Shultz, secretary of state during the Reagan administration;
Nobel laureate economist Milton Friedman; conservative columnist
William F. Buckley, whose recent death was mourned by
anti-prohibitionists around the country. Law Enforcement Against
Prohibition, or LEAP, a Medford-based nonprofit, counts current and
former cops, judges and legislators among its members.

"This is a reform that liberals and conservatives support, that
people from all walks of life can support," Taylor says.

Not everyone, of course, supports the reform. LEAP notwithstanding,
strong opposition is expected from within the ranks of law
enforcement. The Massachusetts District Attorneys Association has
condemned the CSMP ballot question, contending it will increase
marijuana use and reverse recent trends of declining pot use among
teens. "The District Attorneys ask Massachusetts parents, 'Do you
really want to encourage your kids to smoke dope?'" the association
asks in its official statement on the question.

The DAs also argue that there's a "direct link between marijuana use
and public safety and public health." The group points, by way of
example, to a study showing that 41 percent of men arrested in
Chicago tested positive for marijuana; what it fails to report is
what charges these men faced, and if, in fact, they were arrested
solely for pot possession.

Similarly sketchy is the assertion that "the criminal justice system
is the largest single source of referral to drug [not just marijuana]
treatment programs"; left out is the question of whether these
referrals were made, as a condition of law, to people arrested solely
for possession of a small amount of pot.

More persuasive are statistics linking marijuana use to impaired
driving, although, as the report notes, more impaired drivers have
alcohol-a legalized drug-in their systems than pot. Likewise, the DAs
point out the health risks of inhaling tar and carbon monoxide from
pot, but sidestep the question of why cigarettes, which contain the
same substances, are legal.

That line of reasoning also raises a sticky question: most reasonable
people can agree that alcohol, cigarettes and marijuana all pose
personal and public health risks; why, then, are two of them legal,
and one illegal?

It's not surprising the DAs oppose decriminalization, Taylor says:
"They want all the tools to convict people. That's their job."

Indeed, lots of jobs are directly tied to drugs remaining illegal,
from those of prosecutors, police and jailers to business that goes
to ad agencies contracted by the government to produce anti-drug
campaigns, and to community groups that receive government funding
for anti-drug work, notes Bill Downing, president of MASS CANN.
"Their income depends in part on this 'war [on drugs],'" he says.

Backers of the ballot question are mindful of the public safety
arguments that will be used against their cause. They point out that
the question is narrowly defined, applying only to people carrying
what's considered a "personal" amount of pot; it would have no
effect on laws applying to the sale, trafficking or cultivation of
marijuana, or to crimes like driving under the influence.

More to the point, the question would not legalize pot, but rather
decriminalize it-an important distinction. If it passes, Taylor
points out, "marijuana remains illegal. We're just creating a
different type of penalty system. It deals with the fact that the law
is broken, but it allows people to move on with their lives."

As November gets nearer, opposition to the ballot question will
likely intensify. The district attorneys have already signaled one
likely line of attack: questioning the political and financial
support behind CSMP.

According to its most recent finance report, filed with the state
Office of Campaign and Political Finance, CSMP's money comes largely
from one source: George Soros, who donated $400,000 of the almost
$430,000 raised in 2007. (Most of the money-$316,000-was used to
hire a Worcester-based firm that runs petition signature campaigns.)

On the finance reports, Soros is listed as a self-employed
"entrepreneur" and Manhattan resident. To the DAs and others in favor
of prohibition, Soros is the bane of their existence. A 77-year-old
native of Hungary, Soros is a self-made billionaire investor who's
used his fortune to fund numerous philanthropic and political causes,
including Democratic campaigns. Soros also sits on the board of the
Drug Policy Alliance, an anti-prohibition group that calls for,
among other things, the decriminalization of marijuana, the
legalization of medical marijuana and an end to discriminatory drug
laws.

The Drug Policy Alliance is hardly a crackpot group; its board
includes business executives, mental health experts and religious
leaders, with "honorary" members including George Shultz, past
Federal Reserve Chairman Paul Volcker and former Surgeon General
Joycelyn Elders. Still, as Allen St. Pierre, NORML's executive
director, notes, when it comes to the heated debate over drug policy,
"there's probably not a more polarizing figure" than Soros. He
predicts the proponents of the ballot question will be painted by
opponents as out-of-state "fringe drug legalizers."

Ironically, while drug law reform might still be cast as a "fringe"
movement, drug use-specifically, pot smoking-has become increasingly
mainstream. According to the Office of National Drug Control Policy,
the government's chief anti-drug agency, a 2006 federal study found
40 percent of Americans over the age of 12 have smoked pot, 10
percent in the last year (and some suspect those figures are low,
given respondents' reluctance to admit to committing a crime). A 2000
survey by the U.S. Dept. of Health and Human Services found that 20
million Americans smoke pot every year, 2 million on a daily basis.

Perhaps those figures explain the easy acceptance of pot smoking in
popular movies and TV shows (like Showtime's Weeds, about a suburban
widow who makes ends meet by selling marijuana, and CBS' How I Met
Your Mother, with its unapologetic references to its characters
getting high). We've got a sitting president who has indicated,
although never directly admitted, that he has smoked pot, and is
rumored to have dabbled in considerably harder stuff, and one
contender for that job, Barack Obama, who is more forthcoming about
his history of pot and cocaine use.

Of course, Bush and Obama speak of their past use with an air of
repentance, and neither favors ending the prohibition on drugs
(although Obama does criticize the Justice Department for raiding and
prosecuting medical marijuana users). The other two major
presidential candidates, Hillary Clinton and John McCain, also
oppose decriminalizing marijuana. Other presidential candidates have
supported decriminalization, including Ron Paul; Dennis Kucinich, the
Ohio congressman who dropped out of the race months ago; and Mike
Gravel, a Springfield native and former senator from Alaska, who
promised at one debate that, if elected, he would "do away with the
'war on drugs,' which does nothing but savage our inner cities and
put our children at risk."

Gravel, however, will never be president; neither will Paul or
Kucinich. They have devoted supporters and well-honed positions, but
they garner minimal coverage from the media. Much of that coverage is
dismissive, in large part due to their outside-the-mainstream
positions on issues like drug policy. Polls and public policy
questions might signal that the public's view of drug
use-particularly marijuana-is softening, but most establishment
politicians are too wary to follow their lead.

That's why reformers are excited to put the decriminalization
question before Massachusetts voters. "Any issue that comes with any
amount of controversy at all, politicians are not ready to take a
stand on if they don't have to," notes MASS CANN's Downing. "The
Legislature wants to avoid the issue completely because they can only
lose by addressing this."

Reformers could find some support from Gov. Deval Patrick, who's
spoken out about inequities in the justice system, including the
undue hurdles created for many under the existing criminal records
system. "He's made the kinds of noises of someone who'd be amenable
[to drug reform]," St. Pierre says. "At his core, he's got to be keen
on some reform. It's a waste of money."

Still, Patrick is a politician, and with that comes a degree of
caution. "Clearly, from a political, pragmatic view, he'd be very
happy to never have to say the word 'marijuana,'" St. Pierre says.

It's getting harder for politicians to avoid drug policy issues,
though, in light of a mounting pile of evidence about inequities in
how those policies are executed. In May, the Sentencing Project, a
justice reform group based in Washington, D.C., and Human Rights
Watch, which tracks global human rights issues, released reports
showing deep racial disparities in how drug laws are enforced. In
large part, the problem stems from the intense focus on poor urban
minority communities.

In 2006, 1.89 million people were arrested for drug violations in the
U.S. More than 80 percent of the arrests were for possession; about
40 percent were for marijuana possession.

While the rate of drug use among whites and blacks is roughly equal,
and blacks make up about 13 percent of the total population, they
accounted for two-thirds of the drug arrests. And black men are
nearly 12 times as likely to be sent to prison for drug convictions
as white men, according to the HRW report. (The reports do not
indicate rates for Hispanics, since they used FBI data that collects
stats by race but not ethnicity.)

"The race question is so entangled in the way the drug war was
conceived," Jamie Fellner, author of the HRW report, told the New
York Times. "If the drug issue is still seen as primarily a problem
of the black inner city, then we'll continue to see this enormously
disparate impact."

Indeed, race has shaped U.S. drug policy from the start. In his 2003 book,
Reefer Madness: Sex, Drugs, and Cheap Labor in the American Black Market,
journalist Eric Schlosser traces drug prohibition back to the influx of
Mexican immigrants in the early 20th century. The new arrivals were not,
generally, warmly greeted, and that anti-immigrant sentiment extended to
what Schlosser calls "their traditional means of intoxication: smoking
marijuana."

Meanwhile, the association of marijuana with African-Americans, and
particularly with the jazz scene in cities like New Orleans, added
more racial fuel to the fire. Before long, government officials were
warning of the alleged dangers of pot smoking. Users were described
as extremely violent, possessing superhuman strength when under the
influence, and prone to insanity-all depicted, to unintentionally
comic effect, in the now-cult classic 1936 film Reefer Madness. By
1931, 29 states had banned pot; in 1937, Congress passed a federal
ban.

Attitudes toward pot smoking softened somewhat in the 1960s, when it
became the drug of choice of white, middle-class kids. In 1970,
federal law was amended to differentiate marijuana from other
narcotics and lessen penalties for possession of small amounts. At
the time, NORML's St. Pierre recalls, marijuana reform "appeared to
be on greased tracks."

Then came the conservative '80s, and Ronald Reagan's "Just Say No"
anti-drug agenda. Marijuana was again vilified as a highly dangerous
"gateway" drug that would lead to use of harder substances. Drug laws
were toughened; the laws regarding pot now vary widely from state to
state, and, critics say, are open to varying interpretation that can
lead to harsher results for, say, a black kid from a distressed urban
area than a white kid with a suburban address and parents who can
afford a lawyer.

"It's because black folks used it-that's why marijuana and cocaine
and heroin are illegal, and that's why tobacco and alcohol are legal
and receive government subsidies. They're white folks' drugs," Evans
says. The recent reports about racial disparities in the enforcement
of drug laws, he adds, demonstrate "that marijuana prohibition laws
have been very effective in achieving their original purpose, which
was to repress minority communities."

It's not drugs that have devastated America's inner cities, critics
say-it's the government-sponsored, publicly funded "war on drugs." In
the same way that alcohol prohibition created a thriving black market
for bootleggers and speakeasies-planting the seeds for modern-day
organized crime in the process-the prohibition on drugs has created a
black market that is thriving despite the billions spent in the quest
to end it.

"Certainly, there is a dangerous level of violence and crime
associated with the drug trade, but that's only because drugs are
illegal," argues Tom Angell of SSDP. "Drug abuse is a serious issue.
& But there's no drug known to man that gets safer when its
production is handed over to violent drug cartels."

Which is why, reformers say, it's time to consider withdrawing the
troops and declaring an end to the drug war. That doesn't mean that
crimes associated with drug selling or use-violence, theft-wouldn't
continue to be prosecuted; rather, anti-prohibitionists say,
eliminating the black market for drugs would significantly reduce
those related crimes. "In terms of the big picture, we can keep
chasing our tail and busting a drug gang here or there, or we can put
it all out of business by making it legal," Angell says.

And this is where drug law reformers will lose some of their base of
support; plenty of mainstream Americans might see smoking the
occasional joint as no big deal, but are they ready for a wholesale
lifting of the ban on harder drugs?

They might, Evans says, if they consider just how little the
prohibitionist agenda has accomplished. "What is your definition of
victory in the war on drugs?" he wonders. "And when we achieve that
victory, how many people will be in prison, and how much will it
cost?"

Decriminalizing marijuana could be an important, and generally
palatable, first step toward rethinking how we as a society view
drugs. "It's 2008-it's two generations, almost, since the cultural
revolution-and we still lock people up for pot," Evans notes. "What
have we accomplished by wrecking millions of lives and spending
jillions of dollars? What have we accomplished?"