LEGALIZE IT?

A Northampton Lawyer Brings A Bill To Tax And Regulate Pot To The Statehouse.

In 1981, Dick Evans, a Northampton attorney and long-time advocate for
drug law reform, drafted a marijuana legalization bill "just to see
what one would look like," he said.

Evans got the bill before the state Legislature via the right to
petition, a law that allows citizens to file bills. And because he
found a legislator to file the bill on his behalf—improbably enough,
it was Andrew Card, who went on to serve as chief of staff to George
W. Bush but at the time was a progressive Republican state rep from
eastern Mass.—it was guaranteed a committee hearing.

The day of the hearing, Evans said, "I loaded a few friends in the car
and we drove down to Boston." When they arrived, they found the room
packed with anti-drug parents' groups and other opponents. Evans
offered his testimony in support of the bill, then the opponents
offered theirs.

"Then the chairman of the committee looked at his watch and said, 'I
think we heard enough. Let's put this to a vote. All in favor say "Aye."'

"My friends and I jumped up and said 'Aye!'" Evans said. Then the
committee chair asked for those opposed to say "nay."

"The building shook," Evans recalled with a laugh. "Bang went the
gavel, and that was it for 28 years."

This week, Evans once again traveled to Boston to make the case for a
marijuana legalization bill he drafted, at an Oct. 14 hearing of the
Joint Committee on Revenue. Like the one he filed 28 years ago, this
bill calls for the regulation of commercial growing and sale of
marijuana, and would impose an excise tax on the product.

While Evans does not expect the bill to fast-track into law, he does
hope it will spark a healthy, honest public discussion about
marijuana, in a way that was not possible back in 1981. What's
changed, he said, is the growing acknowledgement of what he calls an
"indisputable fact": "Marijuana in our culture is ubiquitous, and it
is ineradicable. That may not have been so clear 28 years ago," Evans
said.

Today, he noted, references to casual pot smoking are everywhere in
pop culture. Just last month, he noted, the Today show—inspired by an
article in Marie Claire magazine with the unfortunate title "Stiletto
Stoners"—ran a segment in which successful middle-class women with
careers and families talked about their recreational pot use. Matt
Lauer may have feigned surprise, Evans said, but the stories rang true
for many Americans, including those who flooded the show's website
with testimonials of their own pot use.

Marijuana use crosses all kinds of boundaries in the United States,
Evans argued: class, race, region, educational background. "It's
something that almost everybody has in common—something the NASCAR
[fans] and the liberal elites have in common," he said.

"Whether you like it or not, we're beyond the point of whether
marijuana is good or bad," Evans said. "The policy makers can't
recognize that for some reason." But it's time, he said, to undo the
current punitive pot laws and replace them with a more practical approach.

Evans' "Act to Regulate and Tax the Cannabis Industry" calls for the
legal sale of marijuana by licensed vendors, who, along with growers
and distributors, would be overseen by a state Cannabis Control Board.
The board would have seven part-time paid members appointed by the
governor.

Under the bill, cannabis could be sold in quantities of one ounce, in
sealed containers that identify the grower and the grade and include a
warning about driving under the influence. (The bill would have no
effect on existing laws about driving while impaired.) Buyers would
have to be at least 21 years old, and sales via vending machines would
be prohibited. The pot could not contain additives, or be part of a
beverage or snack food.

Small-scale "backyard" growers would not be taxed or regulated, in the
same way home beer brewers are not regulated by state alcohol laws.
Indeed, the bill bears a strong resemblance to the laws that regulate
alcohol sales in the state.

Evans' bill would also impose a steep excise tax on marijuana sales,
ranging from $150 to $250 per ounce, depending on its grade (the
amount of Delta-9 tetrahydrocannabinol, or THC, it contains).

That last provision is especially relevant given the current dismal
state of Massachusetts' economy. Regulating and taxing marijuana could
have significant fiscal benefits for the commonwealth, supporters
contend. A much-cited 2003 study by Harvard University economist
Jeffrey Miron concluded that legalizing pot would save Massachusetts
$120.6 million a year, the cost of arresting and prosecuting people on
marijuana charges. (That figure was often pointed to by supporters of
Question 2, the 2008 ballot question that decriminalized the
possession of less than an ounce of marijuana.) Miron's report also
found that legalization could generate almost $17 million a year in
tax revenue for the state.

"Legalization has its economic advantages and attractive prospects,
but it's more than that," Evans said. "It's ending the terrible
injustice of prohibition, under which people have been so brutalized
for turning to cannabis, when the government is urging them to use
lethal drugs like alcohol and nicotine."

The bill, he went on, would also force an honest discussion about what
constitutes marijuana use, and what constitutes abuse. "Under
prohibition, we necessarily conflate use and abuse," he said. But our
legal system has found ways to draw the line between use and abuse,
and between responsible and irresponsible use, with other legal drugs,
including alcohol.

Like Evans, Terry Franklin of Amherst is a long-time advocate of
marijuana reform, working with the UMass Cannabis Reform Coalition and
organizing his town's annual Extravaganja festival.

He's also active in libertarian politics—not an unusual position for
drug law reformers, many of whom make the case that the government
shouldn't stick its nose into what people do in their private lives if
those activities don't hurt others. Still, Franklin told the Advocate,
"Regulation is the buzzword these days, especially in this state, so I
don't see any way around it." And, he added, "Suffering under
regulation and taxation is much better than having people taken away
in chains and put in cages."

Should a marijuana taxation bill ever pass, Franklin said, "I hope the
tax level ... isn't so excessive that the criminal justice industry
merely turns the War on Drugs into the War on Tax Evasion." A
provision allowing the growth of marijuana for personal use (which
Evans' bill includes) "would alleviate some of the problems," Franklin
noted.

While the Oct. 14 hearing focused on the bill's potential tax
implications, there are broader issues to consider, Franklin added.
"Marijuana use is a de facto spiritual practice for a great number of
its proponents, regardless of whether they think of it in those terms
or not," he said. "And while people may view any particular religion
(or all religion) as silly and worthy of mockery, many are still
accepting of religious freedom as good public policy, if only because
of the effort and cost to society of engaging in religious
suppression."

The bill could also force politicians into taking public positions on
the issue. "That way voters can make an informed choice come election
time," Franklin said.

He pointed, for example, to the heated Democratic primary race for the
U.S. Senate seat left vacant by the death of Ted Kennedy. "The two top
contenders, [Attorney General] Martha Coakley and [U.S. Rep.] Mike
Capuano, have radically different positions," Franklin noted. "Ms.
Coakley opposed [Question 2], and has worked to undermine it since
passage." (Coakley has encouraged municipalities to impose additional
fines for public pot smoking, on top of the $100 civil fine for minor
possession that was approved by 65 percent of voters on the November
ballot question.)

Capuano, in contrast, is a co-sponsor of a national decriminalization
bill, filed by Massachusetts U.S. Rep. Barney Frank and Rep. Ron Paul,
a Texas Republican. "I hope the voters are paying attention," Franklin
said.

The Oct. 14 Revenue Committee hearing (which took place after the
Advocate went to press) was not the only opportunity for debate about
the legalization bill. A Senate version of the bill is due for its own
hearing before the Judiciary Committee sometime before March, Evans
said.

The current bill was filed for Evans by two Amherst Democratic
legislators: Ellen Story in the House and Stan Rosenberg in the
Senate. While Evans said he hasn't asked either to endorse the bill,
he's grateful to them for taking the steps to ensure that it gets a
hearing.

And, by law, that's all the bill is guaranteed: a public hearing.
Evans doesn't expect the Legislature to move his proposal any further;
after the hearing, he said, "they don't have to do anything. They
probably won't."

But he does hope the effort will spark serious, substantive
conversation about ending a failed policy of prohibition and replacing
it with a thoughtful system of regulation.

"I'm not trying to legalize marijuana so much as legalize discussion
about it," Evans said. Right now, he said, many casual pot smokers
remain in the closet; supporters of his efforts sometimes tell him
they worry that if they publicly admitted to smoking, it might offend
their employer, or give their ex-spouse ammunition in a custody
hearing. Meanwhile, "For the most part, whenever the press covers this
issue, [the coverage is] littered with puns and smirks," he said.

"It's my hope this will spark some discussion," he added. "It's my
hope that some legislators will take some leadership on this issue. I
want to see the silence broken. I want to see the press pick up on
it."

Evans expected a range of supporters at the recent hearing, including
activists, medical professionals and law enforcement representatives
who advocate for reforming drug laws. While last year's Question 2 was
fiercely opposed by the state's district attorneys and a number of
police chiefs, Evans said he doesn't know of any organized opposition
to his bill. "This isn't on their radar screen," he said.

But to those who do oppose the bill, Evans issues a challenge: to find
a better alternative to the existing costly, punitive and ineffective
prohibition model.

"How many more people have to be arrested and prosecuted and punished
before we can hope to reach some level of success in this struggle
against marijuana?" Evans asked. "And once we reach that success, how
many people are going to be locked up in jail? And how much is that
going to cost taxpayers, and where is that money going to come from?"

Regulation and taxation of marijuana, he said, could achieve the goals
that prohibition was supposed to achieve: protecting public health and
safety, reducing abuse and the crimes associated with drug
trafficking. "What I'm saying—and I'm certainly not alone in this—is
there's another way to approach those problems," Evans said. "And oh,
by the way, there's some significant economic opportunities that might
present....

"What we have to talk about now is the obsolescence of prohibition,"
he said. "We no longer have the luxury of chasing a failed program.
We've failed; let's move on."