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The political aesthetics of marijuana legalization

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As you’ve probably heard, Colorado has embraced reefer madness. Ironically, Denver was the site of the opening salvo in the federal government’s long war against the semi-innocuous substance:

Seventy-six years ago, a guy named Samuel Caldwell became the first person arrested and prosecuted under a federal charge of selling marijuana, after drug-enforcement agents busted him with 3 pounds of cannabis in his apartment at 17th and Lawrence streets. So historically significant was the moment that the nation’s leading anti-marijuana crusader, Federal Bureau of Narcotics chief Harry Anslinger, came to Denver to watch the trial.

“These men,” Anslinger said of Denver authorities afterward, “have shown the way to other district attorneys throughout the nation.”

A key element in the politics of legalization has involved transforming the optics of the reform movement:

For decades after, [Isaac] Campos said, marijuana activists had little traction in debating prohibition. Cannabis users were a marginalized group numbering far fewer than the masses who agitated to overturn alcohol prohibition. The 1960s and ’70s placed marijuana within the nation’s counterculture, but Campos said that also spurred a backlash against pot when it became a symbol of the culture war.

But in the early 2000s, activist groups pulled themselves together and found several big-money funders, pushing marijuana into the mainstream in a way that is challenging prohibition across the country.

“Now you have these kind of buttoned-up guys in suits with short hair saying, ‘Look, these policies are irrational,’ ” Campos said.

Enter a guy in a suit with short hair in Colorado in 2005.

Five years before Mason Tvert arrived in Colorado, voters in the state had approved medical marijuana but little had yet come from it. Tvert’s goals, though always incremental, were much bigger: He was gunning for legalization. Starting with a campaign on college campuses comparing the harms of marijuana to alcohol, Tvert branched out to municipal campaigns in Denver and a failed statewide initiative before helping launch the successful legalization campaign in 2012.

His strategy was pretty basic. He wanted to get people to care less about marijuana, not more.

“The overall progression is that people care less and less about this issue,” Tvert said. “There might be more interest in it, but overall there’s less hysteria, and it’s becoming more of a normal, public policy issue. It’s become more boring.”

Nevertheless the legal status of the drug in Colorado remains in a gray zone. The drug’s sale for both medical and recreational purposes is still illegal under federal law, even as the current federal government gives assurances that it’s not going to really enforce its laws on the matter. Still, medical marijuana clinics find it’s very difficult to get financing from banks, or credit card companies, because the feds have let it be known that they’re not inclined to tolerate actually loaning money to a legal business if they don’t like that kind of business. It seems likely this attitude will be even more pronounced toward the recreational sale of the substance.

In addition, it’s not yet clear whether the state bar association will permit Colorado lawyers to provide useful legal advice to those in the newly legalized business.

Still, today marks important moment in the nation’s slow march toward more rational policies in regard to mind-altering substances.

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  • i’ve mentioned this here before, but it’s worth repeating in this context.

    when i was an undergrad, a mere 4 decades ago, many was the smoke-filled room in which i opined that of course reefer would eventually be legalized, the tax revenue would be irresistible.

    and among my fellow college boho hippie-symps was a pony-tailed lad we called “hick,” but whom you know as colorado governor john hickenlooper.

    • NewishLawyer

      It took an awful long time for the tax-revenue to be irresistible. When I was in my coffee shop this morning, they were playing local NPR. NPR was doing a segment on a medical marijuana dispensary tax that Palm Springs is initiating today. The proponents of legalization were heavily split on the taxing issue but there is a kind of libertarian streak in many medical marijuana growers and distributors in CA.

      • LeeEsq

        The tax-revenue issue is absolutely irrelevant to whether or not drugs will be legalized. In the run up to Prohibition, the wets thought that federal prohibition was impossible because the federal government received too much of its tax revenue from excise taxes on alcohol. Than the drys teamed up with the Progressives to get the Income Tax into the Constitution. During the battle against Prohibition, the wets argued that repeal would lead to the more tax revenue for the federal government and hopefully for the rich wets, a lowering of the income tax. That did not happen, it was the crime issue that really to the repeal of Prohibition. I suspect that it will be the same with drugs.

        • i agree that my expectation 40 years ago that revenue would be irresistible was wrong (and the prohibition experience is interesting to learn), but i’m not sure what you mean by “crime.”

          i think that what is really driving legalization today is that there are just too many users to keep the behavior criminalized, and if that’s what you mean, i agree.

          • Colin Day

            Too much violence in Chicago (and perhaps other cities).

          • LeeEsq

            The criminal issues associated with marijuana are different than those associated with Prohibition. The marijuana trade is generally less violent than the bootleg trade but you still have enforcement problems because of the sheer numbers of users. Jaiing every marijuana and drug user is impossible. It will be the inability to enforce the drug laws that undermines them.

        • ajp

          As if a treaty obligation would stop the United States from doing what it wants.

      • kindasorta

        If it saved me from state excise taxes, I’d be libertarian-minded myself. If the price of legalizing my high-margin business in marijuana was paying those state excise taxes, then I’d be somewhat more statist in outlook.

  • NewishLawyer

    CA should be voting on a recreational legalization referendum in November. I wonder if it will pass this time. Proponents tried in 2009 or 2010 but it failed.

    I still think the optics are not that good except for a few national politicians on each side. Hopefully I am wrong on this. The DEA is too entrenched and civil forfeiture laws are too lucrative. Also a shocking shame and disgrace.

  • cpinva

    “In addition, it’s not yet clear whether the state bar association will permit Colorado lawyers to provide useful legal advice to those in the newly legalized business.”

    billable hours vs bar association queesiness. I suspect I know which will prevail.

  • LeeEsq

    Paul, Kevin Drum at Mother Jones states that a problem with legalizing or at least getting more rational laws regarding marijuana and other drugs at federal level rather than a state level is that a lot of drug law is based on international conventions and treaties that the United States is party to. Is thee any truth in this? I suppose that the the United States and other countries could simply ignore the treaties to get a more rational drug laws but that might not be possible. Will rational drug policy at the federal level require at least some international action?

    • Paul Campos

      I don’t know either the formal legal or practical political answer to this. I’ll ask my brother (he’s quoted in the OP).

    • Josh G.

      When has the U.S. ever given a damn about international treaties if they were inconvenient for us?

    • Paul Campos

      According to him, the short answer is that the US could certainly work around the Single Convention on Narcotic Drugs (which puts marijuana in the most restrictive category) if it wanted to, since there are no real sanctions: for instance nobody is going to start a trade war with the US if the federal government were to get rid of its marijuana laws. The only real cost would be the embarrassment of looking like huge hypocrites, after having been the main force behind the adoption and maintenance of the Convention in the first instance.

      • LeeEsq

        We look like huge hypocrites for the most part anyway so I don’t think that would really matter that much.

      • cpinva

        “The only real cost would be the embarrassment of looking like huge hypocrites, after having been the main force behind the adoption and maintenance of the Convention in the first instance.”

        which, to some extent, also helps explain the reticence, at the federal level, to legalize pot. how to explain having ruined all those lives, and spent all that money, to maintain the fiction that pot is the worstest drug in the known universe?

      • djw

        I wonder if the decriminalization policies in countries like Portugal, The Netherlands and (especially) Uruguay are in violation of the treaty.

    • Ronan

      A lot of the policies laid out in international treaties though have also been driven primarily by the US, afaik. So theres gonna be a problem of political will here as well(int treaties used as an excuse etc)

  • joe from Lowell

    His strategy was pretty basic. He wanted to get people to care less about marijuana, not more.

    Hmmm…I wonder what other issues this strategy could work for. Gun control maybe?

    • DocAmazing

      Already worked for same-sex marriage.

    • GoDeep

      I *think* that strategy only works on regulations that need to be loosened–like the prohibition against gay marriage.

      For things which need to be tightened–like gun control–I’m not sure how that works…just a hunch…

  • Philip Arlington

    The law school scam and legalising pot are both are manifestations of American’s abandonment of self-restraint and reciprocal responsibility. Both are part of the U.S.’s gradual slide from being an extraordinary society that worked most of the time for most people (leaving aside the legacy of slavery) to one which, like most societies at most times in history, fails most people.

    And of course like every other bad idea that comes out of America this folly will poison the rest of the Western World. I am no longer sure that my country (the UK) and others wouldn’t be better off taking their lead from China, where discipline and a focus on the long-term still exist. I am a passionate democrat, so that hurts to say that, but even democracy is more likely to be revived in China than in the United States.

    • Philip Arlington

      And as someone who is teetotal because his father is an alcoholic, I feel that arguing for the legalisation of pot by comparing it to alcohol is like arguing for the legalisation of robbery by comparing it with rape.

      • Hogan

        I’m sorry about your father, but your individual experience is not necessarily a good basis for public policy.

      • Tristan

        IT IS VERY IMPORTANT YOU KNOW THIS: RAPE IS NOT LEGAL

      • DrS

        “My dad was an asshole, everyone must be made miserable like me”

    • ajp

      Well, I had a good laugh. Thanks for writing the most idiotic thing I’ve read so far in 2014

      • john

        So, because your father was an alcoholic, cannabis should be illegal and people should be put in jail for possessing such substance (which is a natural plant).

        • Wine Heart

          …and morphine is also natural as is cocaine.

          “Natural” doesn’t mean squat. Hemlock is ‘natural’.

          • Malaclypse

            Jennie is right. Why, just the other day, I saw a morphine plant right in my very own backyard.

            • jim, some guy in iowa

              don’t leave us in suspense – what did the morphine plant? hemp? poppies?

              • Lee Rudolph

                Evidence.

    • JustinV

      leaving aside the legacy of slavery

      So…leaving aside the obvious historical practice that renders your argument about the historical American virtues of restraint and reciprocal responsibility foolish and ignorant?

      You’re right, of course, the rest of the world should take it’s lead from China for this reason. In China is there is no corruption or self-dealing on the part of elites and the watchword of the day is not “rapacious development at all costs so that economic growth will paper over the growing discontent of our populace” but “reciprocal responsibility.” Only here in the US, because we are so high all the time, is there evil and sin.

      • Tristan

        Implicit by absence: Native genocide was fiiiiine.

      • ajay

        Say what you like about slavery, but you can’t argue that it didn’t embody the traditional virtue of restraint. Sometimes they used shackles.

    • GoDeep

      “To be revived”? When did it ever exist?

      And if you come up with a day in which it will be revived plz tell the good ppl of Hong Kong. They’re wondering abt that.

    • anthrofred

      self-restraint

      I’m not sure what the state stopping you from doing something has to do with selfrestraint, but you know, keep makin’ that word salad.

    • Origami Isopod

      Are you familiar with Dilan Esper, Phil? You and he ought to go drinking grab a cup of tea sometime.

      Also:

      an extraordinary society that worked most of the time for most people (leaving aside the legacy of slavery)

      Didn’t work too fucking well for women, or for the GLBT. But I suspect that doesn’t matter too much to a “moral” authoritarian like you.

  • Dan Staley

    Let me point out that employers will still drug test you and MJ is on their naughty list.

    So it’s not like the state is going all crazy-like and is going to explode.

  • GoDeep

    My last big hope for Obama is that he takes a serious stab at loosening fed’l pot laws (or better yet, eliminating them) and that he mass commutes non-violent pot dealers serving time in fed’l prison.

    • Wine Heart

      It just makes President Obama look like an idiot not to enforce the marijuana laws considering he took an oath to enforce the laws of the United States.

      Future presidents will be able to point to precedence in ignoring laws that they personally don’t agree with. Next time it may be a law you like.

    • joe from Lowell

      Mass commutation doesn’t really seem like No Drama Obama’s style.

      I’d expect some process with a sentencing commission, like the ones that occasionally let people out of prison when Congress changes a drug law.

  • Chuchundra

    It’s amazing to me how quickly this has all come about. It wasn’t that long ago that medical marijuana initiatives were seen as crazy ideas and now we have full-on legalization at the state level.

    The big question I have is, how will Colorado cops initiate baseless searches of citizens’ vehicles now that “I smell cannabis” is no longer an operative fig leaf?

    • DocAmazing

      “Was that Arabic I heard?”

    • DrS

      You know, I don’t have a lot of faith in many things, but I feel confident that the creative powers of America’s racist, reactionary, redneck sheriffs will find themselves up to the task.

  • J R in WV

    I still want to know why it took a constitutional amendment to ban alcohol, a mostly manufactured in huge factories drug, but pot just took a wave of the hand to ban?

    Cannabis is just a weed! It’s like making crabgrass a felony!

    I was in college back in the 80s and the grad ass teaching the maths course was about to administer the first test next week. She says, “The general policy is to take the test in the same state of mind you were in when you studied and did the homework.”

    No one looked like they understood the statement. She looked hard for another way to say it without just saying it, then visibly told herself, WTF just say it. “That means if you were stoned when you did the homework, be stoned for the test.”

    There was a low sound of chuckles in the crowd. Maths is hard! Anything that gives you even a 2 or 3 point bump could be important!

    Still can’t believe I got a B in calculus. Orbital mechanics! Whooo.

    • LeeEsq

      It didn’t technically create a constitutional amendment to ban alcohol. The Drys already had a great deal of success at the local and state level before Prohibition became law. The problem was that you could always travel to the next county if you wanted booze. In order to get alcohol banned across the United States, you needed action at the federal level. The Drys went for an Amendment rather than an ordinary law because they thought that an Amendment would be much more difficult to repeal. They were right.

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