The Reformers

With the midterm elections—and the defeat of California’s Proposition 19—behind them, two advocates for the legalization of marijuana tell us what’s next

Marijuana activist and chief promoter of Proposition 19

You discovered the benefits of marijuana therapy after breaking your back and suffering paralysis in 1990. Since then you’ve become a successful pot entrepreneur under Prop. 215. Why push for greater legalization?
Because it’s the right thing to do. It’s unfair, unjust, and hypocritical to lock people up for cannabis while booze is not only legal but advertised on radio and television to kids everyday. I think freedom and individual liberty are good things that this country has forgotten a lot about. And of course there are all the problems that come with marijuana prohibition, like violence and the wasting of our police resources. More violent criminals get away because the cops are out there looking for people like me instead of real criminals.

Legalization opponents have made the argument that legalizing marijuana would lead to an increase in the number of people who use marijuana and, as a result, an increase in marijuana-related crime. What’s your response?
There’s no proof that’s true. Forty percent of high schoolers already have tried cannabis, and 80 percent say that it is easy to get. So I don’t see how there could be more kids who could get it if it were legal. It’s not like what we are doing now is working. If you look at places where cannabis is legal, like Amsterdam in the Netherlands, actually only half as many kids try it there as do here. One of the theories is to get rid of the forbidden fruit. Cannabis is not as exciting and not as attractive to kids when it’s legal. Also, you have to compare the relative dangers of cannabis to alcohol. Maybe if cannabis was legal, more people would choose cannabis over booze and we’d have fewer problems with booze. It’s not a simple equation.

You once told the San Francisco Chronicle that you were “kind of a conservative.” Your mother told the paper she once saw marijuana as “the weed of the devil.” Do you think legalizing marijuana is a political issue, a moral issue, or both?
It’s a moral issue. Like I said, it’s hypocritical, unfair, and unjust to lock people up for this while booze is legal. If you look at the racist history and the current racist enforcement of the laws, there’s another moral issue. When cannabis was first made illegal, it was mostly consumed by people who were Hispanic or African American, so prohibition was a backdoor way of going after those minorities. And there are lots of current studies that show how the drug laws are unevenly enforced against non-whites, even though now we all consume about the same amounts of cannabis.

Prop. 19 had some serious opposition: Barbara Boxer, Jerry Brown, and the California Police Chiefs Association all opposed the bill. Why do you think that is?
Well, it’s easier for them to be against it and for the status quo. But I don’t think that is the reason it didn’t pass. All those same people were against Prop. 215, and it passed. A lot of the people who were against medical marijuana then are for it now. So on this issue the politicians lag behind.

Are you hoping to get a second proposition to legalize marijuana on a future ballot?
Yeah, there is already a group working on the 2012 initiative.

Who is working on the next initiative with you? Any new prominent faces at the table?
At the moment we are starting off with the base of what we had on Prop. 19, but I’m sure we’ll welcome a lot of new people over the course of the campaign.

What changes are you considering for the next proposition to make it more voter friendly?
One issue that we are looking at is employee rights and the protection from unfair drug testing that affects your job. Not including that protection is like legalizing beer and then saying you can’t have a job if you drink beer while watching a football game on the weekend. But we are doing polling and research to see what people liked and what they didn’t, and that was one of the things that could be an issue. We may have to deal with employee rights separately. We may have to legalize use and not be able to protect people’s jobs with the first initiative, like Prop. 215. Under that proposition the courts have ruled that you have no right to a job if you are a medical marijuana patient. Employers can still drug test and fire you if you are a legal patient in California. Maybe guaranteeing less employee rights would get more voter support. We did try to make it clear that the proposition didn’t protect anybody from being impaired, but there were still some complaints about that.

Is that a difficult concession for you to make?
It’s all tough decisions. Writing the initiative is the hardest part. We spent five months and 13 drafts going through it, and we had a lot of different arguments around the table about what to take out and what to put in. We’re trying to write the best law we can, but it has to be politically accessible for the voters to pass it.

You’ve spoken about recognizing the state’s economic crisis as a unique opening for a controversial proposition like Prop. 19, which, advocates argued, could offer the state substantial revenue. Do you think a future proposition will need a similar economic climate to pass? And if so, how are you approaching the 2012 initiative?
That will be part of it, of course. The state is broke, and a lot of the cities are broke. California is $20 billion in debt. It’s not like the state’s financial needs are going away. Ten cities passed medical marijuana taxes on the 2010 ballot. I think there’s going to be lots more taxing going on between now and 2012, and that’s going to continue to be an issue.

Finally, how do you measure the outcome of Prop. 19?
It was very successful in that we got the debate moved farther forward than anybody had before. We got four-and-a-half million votes for legalization, and it was interesting how the opposition didn’t really argue against legalization—they were just fighting technicalities in the language, like the employment rights. I think we have really set things up for a win in 2012.

The criminal defense attorney self-described as L.A.’s “dopest attorney”

You were a vocal advocate of Prop. 19. Why do you think it did not pass?
I think it didn’t pass largely because the human rights violations, in my opinion, that go along with this war against marijuana weren’t focused on. What I mean by that is, I don’t think the campaign humanized the unfortunate reality of how it is for people who can’t afford to post bail for marijuana crimes to be waiting in the county jails. Let’s say over a thousand people go to prison. Many become felons as a result of a marijuana charge and face greater consequences. Let’s say they are at the wrong place at the wrong time and pick up a gun—they can go to a state prison because now they are an ex-felon with a gun. So in the attempt to make legalization look like an economic issue, they didn’t focus on and highlight the reality. Look, any attorney who has appeared in the downtown central arraignment court and seen how people are in custody there, where there’s one toilet and people are caged in what I would call subhuman conditions—

Isn’t that really more a complaint against jail conditions than an argument for legalization?
If people realized how marijuana defendants are being treated, if that reality was brought home on this issue, then I think legalization would become a human rights issue. People don’t realize that people are going to prison and being housed and the way they are being housed for marijuana crimes. Yes, this is marijuana and it is different from other drugs. However, it is part of an overall problem we have in our criminal justice system and the way we treat people in this state and all the states. Marijuana defendants are a clear example of people who should not be in this situation.

And then another thing, of course, is that there were a lot of problems in terms of the drafting of legislation. There were some glaring mistakes, and the prop did not really appeal to the medical marijuana community. Advocates let them feel this prop would somehow override the medical marijuana initiative. The word didn’t get out to these people that that wouldn’t be the case.

In a recent opinion piece you wrote, “Criminalizing drug use and sales is not the way to deal with the public health effects of drug abuse.” What is the way to deal with the public health effects?
My preliminary thoughts are that people should not face jail or prison time for the sale or use of any drugs. Drugs should be available by prescription, and the reason I believe they should be available by prescription—and I mean even hard drugs like cocaine and heroin—is so that people can go for the counseling that is needed with the use of those drugs. And of course you have to work out the details for people who have children—that’s a whole other issue. But the system should take a harm reduction approach. I really think that legalization and developing policies on how to prevent people from abusing drugs and figuring out how to treat people who do abuse drugs in a way that doesn’t stigmatize them is the way to handle it. People forget it’s only been about a hundred years since the first federal legislation was passed regarding drugs. And those laws passed in order to clean up products like Coca-Cola and cough medicine and to make consumers aware of what they were consuming. Now we have a situation where people face life sentences for marijuana in federal court.

You’ve said that the next legalization bill should be written by attorneys. What specifically would have been different had Prop. 19 been written by lawyers?
Well, one suggestion at least came from a lawyer, Charles Linder. He was thinking they could have just repealed the criminalization of having less than an ounce. That’s one idea. And then, when you look at the actual proposition, there was a clause about furnishing marijuana to a certain age group, but it was left open-ended. It was just poorly drafted. Attorneys would have done a better job. And leaving the legislation up to the state would have thwarted the naysayers who thought this prop was going to be overturned by the department of justice anyway. I think the state legislature could have come up with a good plan.  

Do you or your father, Bruce, have any plans to be involved in the writing of the next bill?
Right now I am trying to form for us our own political action committee, and I’m going to people who either funded Prop. 19 or have funded harm reduction drug policy and I’m trying to raise money for us to go lobby. I’ve talked to the campaign, and I do want to be involved in writing it. I was a guest speaker for the last one, but they don’t really agree with my approach. That’s why I am trying to form my own committee, so that I can go and lobby Congress and lawmakers.

How is it going so far?
Right now I’m only in the beginning stages of forming a PAC. I have a Southwestern law student helping me.

Richard Lee let us know that as he’s working on an initiative for 2012, he is looking at making changes to the employee rights clauses. What do you think of that? 
I think that’s an excellent idea. I think changing that would probably be very good. There was also a suggestion from the naysayers that people are not currently being prosecuted for driving under the influence, but they are, and I think they should focus on the fact that driving under the influence of marijuana is still a crime.

You and your father recently merged firms, and it occurs to me that you both have a lot riding on the legal defense of marijuana offenders. Wouldn’t complete legalization put you both out of business?
No. We both do a lot. My dad has been a lawyer for 42 years. I’ve been a lawyer for eight. A lot of our practice is marijuana and drug defense, but there are still the rest of the drugs that are criminalized, there’s still the federal regulation, and there are all the regular crimes. If drugs were legalized, I’d be very happy to devote that part of my career to being a professor or working for the government on whatever the harm reduction scheme is. And we’re very happy to do other cases, also. Shockingly enough, medical marijuana defense is very complicated and labor intensive, more so than any other type of criminal defense. So whenever we get other types of cases, even though we believe in marijuana defense, we’re very happy to have the variety. We’re criminal lawyers at heart. It just so happens that right now we have to fight the war on drugs.

Photograph courtesy