REDUCING PENALTIES FOR CRACK AND PEYOTE... BUT WHEN MARIJUANA?

As California voters prepare to vote on Proposition 19, which would
bring a much-needed end to nearly 100 years of failed marijuana
prohibition in that state, it's important to pay attention to the
arguments that proponents use to persuade the electorate to vote in
favor of taxing and regulating marijuana like alcohol (T&R). How an
issue is framed can make or break it, as seen by efforts to reduce
penalties for crack cocaine and peyote.

On August 3, President Obama signed a bill into law that reduced the
federal sentencing disparity between crack and powder cocaine from
100:1 to 18:1. This was done by reducing the penalty for crack
cocaine, not by increasing the penalty for powder cocaine.

Years in the making, this law was signed with barely a whimper from
the usual prohibitionists. How can it be that Congress and the
president reduced the penalty for crack in 2010, but it's
inconceivable that they'd do the same for marijuana in 2010? The
answer is that the lobbying campaign to reduce the crack disparity
appealed to politicians' core values.

The crack penalty wasn't reduced by analogizing important arguments
in the marijuana policy debate, such as "crack is safer than alcohol"
or "crack has medicinal value." Rather, because people who have been
sentenced to five-year, mandatory-minimum prison sentences for crack
are overwhelmingly black, the debate was framed as one of racial
justice. Then, once that ball got rolling, others joined in by saying
that reducing the crack penalty was about fundamental fairness, e.g.,
let the punishment fit the crime (which meant reducing the
crack-cocaine penalty rather than increasing the powder-cocaine penalty).

Regarding peyote -- a drug that can cause hallucinations far
exceeding those of the best marijuana in the world -- Congress and
President Clinton enacted the Religious Freedom Restoration Act in
1993, which included an amendment that allowed people who have at
least 25% Native-American blood to use peyote legally. The peyote
amendment passed with a non-controversial, unanimous voice vote on
the floor of the U.S. House, and by a vote of 97-3 on the floor of
the U.S. Senate.

The peyote vote wasn't won by arguing that "peyote is safer than
alcohol" or "peyote has medicinal value" either. Rather, the argument
was framed as being about religious freedom, as protected by the
First Amendment.

And with medical marijuana, we have won and will continue to win our
ballot-initiative campaigns not by running TV ads featuring a budding
marijuana plant, but rather by featuring patients and family members
of patients. This is because the debate isn't about a plant, but
about compassion -- compassion for cancer patients, AIDS patients, MS
patients, and chronic-pain patients who are being forced to choose
between suffering without marijuana or breaking the law with marijuana.

Because no one has succeeded in enacting a T&R law in the history of
the world (including in Holland, where wholesale cultivation of
marijuana is still illegal), we don't yet know what "frame" we should
be using to win the T&R debate.

Because a disproportionate number of the more than 800,000 people who
are arrested for marijuana offenses each year are young men of color,
it could be that the T&R issue should be framed as one of racial
justice. In June, the Drug Policy Alliance released a report showing
that in California's 25 largest counties, blacks are arrested for
marijuana possession at double, triple, or even quadruple the rate of whites.

Or, looking at the success of MPP's marijuana-decriminalization
initiative in Massachusetts -- which passed with a stunning 65% of
the vote in November 2008 -- it could be that the T&R issue should be
framed as being about public safety (letting police focus on violent
crimes) or fairness (we shouldn't be saddling young people with
lifelong criminal records just for marijuana). Both of these
arguments resonated with Massachusetts voters, as exemplified by
these two TV ads we ran.

There are also people in our movement who believe we'll win the T&R
debate by emphasizing that marijuana is safer than alcohol (which it
is), and therefore, adults should be able to choose the safer substance.

And while the financial argument has been gaining a lot of traction
since the U.S. began its "Great Recession" two years ago, we won't
win the T&R debate solely by framing the issue around saving money on
enforcement costs and generating new tax dollars. I got a sense of
this when I debated Asa Hutchinson, the former head of the Drug
Enforcement Administration, on national TV on March 20, 2009.

In that debate, Hutchinson made an admission that I had never heard
before from a leading prohibitionist. He said, "If your motivation is
to bring revenue to the government, legalize, regulate it. But if
your motivation is to reduce the usage, to save teenage lives, to
reduce dependence, to strengthen our culture, then the cost is worth
it and the revenue should not be a motivation." In other words, he
said that when you're fighting a holy war, the financial cost of the
war is irrelevant.

In the months and years ahead, those of us in the marijuana policy
reform movement should aim to win the T&R debate by using some
combination of the aforementioned five arguments -- racial justice,
public safety, fairness, marijuana's relative safety, and the
potential to generate tax revenues while reducing costs for law
enforcement. As to which of these arguments will prove to be the most
salient, perhaps the November 2 election in California will provide guidance.