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It's Not About the Stoners

People Will Give You a Lot of Reasons to Vote to Legalize Pot on November 6, but You're Not Going to Hear Much About the One That Matters Most

by Dominic Holden

Jack Hornady

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I grew up near the edge of the Central District, and our house was at the top of a ridge, which served as a sort of racial dividing line. Houses on the eastern slope had spectacular views of the mountains and Lake Washington. They were expensive and their residents were all white. I can't recall a single black person who lived on that side of the hill. On the other side of the ridge, the houses' territorial views looked back into the gulch. With only scattered exceptions, those were all African American households.

That was Seattle in the 1980s. Thanks to the cosmic fortunes of where my parents settled down, I lived in an intermediary zone, on one of the city's few truly racially integrated streets. My Catholic parochial school one block north had only one other white kid in the class, a freckled girl from a very Catholic brood. The rest were African American, Asian, and mixed race. We were taught about MLK, schooled in the civil rights movement, and informed weekly that we would overcome someday. It was great. The first time I recall being angry—the sort of anger that boils behind your eyes—was in elementary school, learning about racial segregation on Montgomery's buses. That was awful.

By the time I could vote, lots of my classmates had been stopped for drugs in the Central District. The Seattle Police Department had adopted the federal government's Weed and Seed strategy, which ostensibly "weeded out" drug abusers in the neighborhood and "seeded" it with revitalization programs. In practice, though, Seattle cops—just like police forces across the country—scoured the inner city to make a frenzy of arrests, justified by a national hysteria over the crack epidemic. (Crack, it must be stated here, is a form of cocaine more popular with black people, but the difference from the powder cocaine more popular with whites is largely superficial.) The drug-war pandemonium in the 1980s and 1990s, as I witnessed it, amounted to cops stopping young black people on the street, shaking them down for crack or weapons, and busting them for the most likely contraband they could find: pot.

The white kids smoked pot, too, of course. They used it in the open, sold it, took acid, sold acid, gobbled ecstasy. What happened to them? Nothing. Not one damn thing happened to the white kids. I know because I was one of them, and when the cops came to my house for a 911 call while several of us were obviously tripping on LSD, none of us got busted. We didn't even get searched.

Somehow, in a neighborhood that elevated the civil rights movement's leaders to the stratum of prophets, the community watched drug laws play out as an informal—but tolerated, because it was considered necessary—proxy for the double standards of justice applied to African Americans for centuries. To me, this was worse than someone being sent to the back of a bus; these young black guys were being sent to jail and prison, while white kids got off scot-free.

It's been well documented how prison populations ballooned. The inmate population in the United States quadrupled from a half million people in 1980 to two million by 2000. The number of people imprisoned for drugs increased twelvefold in that time, federal statistics show. Half of all prison inmates were black as of the late 1990s, even though black people were only 13 percent of the country's population.

As you probably know, drug laws were created to ensnare racial minorities (the fact that we use the word "marihuana" results from a federal campaign to criminalize cannabis in 1937 by associating it with Mexicans). Michelle Alexander made an academic case in her 2010 book, The New Jim Crow, that the modern drug war created an underclass of citizens by dishing out millions of criminal records that make it difficult to vote, get a job, rent a home, receive student loans, and so on. "There are more African Americans under correctional control today—in prison or jail, on probation or parole—than were enslaved in 1850, a decade before the Civil War began," Alexander wrote in a recent article for Huffington Post. This explosive prison growth is attributed to several factors and various drugs, of course, but pot is the most popular illicit drug, accounting for more than half of all drug arrests, and it's the drug that most Americans are ready to change the laws for.

But the way we enforce pot laws in Washington State has remained horrific.

Three New York–area academics released a report on October 11 called "240,000 Marijuana Arrests: Costs, Consequences, and Racial Disparities of Possession Arrests in Washington, 1986–2010," finding that blacks in Washington State smoke less pot than white people—I repeat, they use less pot than white people—yet are arrested at 2.9 times the rate of white people. In this state, the pot possession arrest rate nearly tripled from 4,000 in 1986 to 11,000 in 2010, meaning the rate of pot busts has outpaced state population growth sixfold.

Now that Initiative 502 is on the November ballot to legalize possession of up to an ounce of marijuana, you may not hear those stats much. But for me, at least, this initiative is about race and civil rights more than it's about personal liberty or helping the economy. Some people may be incensed that a white guy like me would have the audacity to claim racial justice as his reason to take a stand. But you know what? I've been pissed about this for 20 years. I don't claim to speak for anyone but myself, and I don't have to.

Although condemnation of pot laws was essentially unheard of from African American leaders 30 years ago, the NAACP's Alaska, Oregon, and Washington State–Area Conference decried the racial disparities in drug enforcement and endorsed I-502 in August. Three local black church leaders have also endorsed the initiative: Reverend Leslie Braxton of New Beginnings Christian Fellowship, Reverend Carl Livingston of Kingdom Christian Center, and Reverend Steve E. Baber of Skyway United Methodist Church. "It's no longer enough to say the war on drugs has been a failure," Braxton announced. "We have to recognize that it has done damage, especially to black Americans, and we have to change course. Marijuana law enforcement has become a pretext for pushing people into the criminal justice system where they get branded with criminal records that turn them into second-class citizens facing additional barriers to education and employment."

This particular initiative, which some people think is about stoners, is only incidentally about pot. Chances are, you don't care about pot and probably don't smoke it. If you do smoke it and you're white, chances are you don't care about the laws because the laws aren't a problem for you—you're not going to get busted for marijuana. Especially in Seattle. But if you're black or Latino, well, that's another story. Pot laws are used as an excuse to bust racial minorities. This is a civil rights issue—full stop. It's part of the same civil rights march that's been inching forward for centuries. Unlike the rest of the civil rights movement, this issue has made no traction at the federal level in more than 70 years.

For me, voting yes on I-502 is the most crucial—and imminently achievable—vote to improve racial and social justice of my lifetime.

I became a pot activist when I was 17 years old. And I had smoked it, of course—lots of it—but that's not the reason I became a pot activist. In fact, by the time I was 25 and running the campaign for I-75, a city initiative to make possession the city's lowest enforcement priority, I didn't smoke it anymore. Reporters interviewing me for stories that appeared in this paper, in daily papers, on radio stations... they could not believe this fact. Why would anybody who doesn't smoke pot want to legalize marijuana?

I wanted to explain. I wanted to print the statistics about the disparity of marijuana arrests on all of our glossy mailers. I wanted to say that African Americans made up only 8.5 percent of the city's population but 35 percent of the city's pot possession busts—and isn't that fucking intolerable? And isn't that reason enough to change the law? For a time, we did run that message on a pamphlet (without the "fucking intolerable" part).

But then something happened. We got back the results of a poll of likely voters that we'd paid $14,000 to conduct. In a conference room at the ACLU offices at Second and Cherry, initiative cosponsor Ben Livingston and I sat across from a bunch of muckety-mucks. One of them had a question for us. "Do you want to win?" asked veteran campaign consultant Blair Butterworth. Or did we want to run a campaign about all the principles we had, about people's right to do with their body as they choose, about racial disparities, about cops shaking down black men looking for a dime bag? Because we could run that campaign, if we wanted. But that campaign probably wouldn't win. The polling was clear: Those aren't the messages that convince voters to relax the rules for pot. Nobody made us do anything we didn't want to do, but we wanted to win, so we mostly shut up about that race stuff.

"I-75 frees our police and prosecutors from enforcing marijuana laws so they can concentrate on protecting our communities from serious and violent crime."

I can't tell you how many times I said that sentence. To the media, on our mailers, at community meetings, we said it so much that in the final weeks of the I-75 campaign, an elderly woman on the bus who had no idea who I was spontaneously recited those words to me—verbatim—as her reason for supporting the initiative. It was a winner. Fifty-eight percent of voters approved I-75 in September 2003. After it passed, pot arrests dropped sharply in the first couple years, and, although the racial disparities for arrests remained high, the number of pot busts for black and white people declined. Then it got much better: Seattle City Attorney Pete Holmes vanquished his anti-pot predecessor, Tom Carr, in 2009, and he's refused to prosecute a single marijuana possession case in Seattle since.

Although I'm proud of what we did, I-75 was a meager law. All it did on paper was make pot the lowest "priority," which is the sort of ambiguous directive that cops could ignore (and sometimes did ignore and continue to ignore—they can still arrest you for pot, knowing full well that the city attorney probably won't pursue it). On the other hand, it was a net gain because prosecutions stopped, and other cities like Oakland and San Francisco have since replicated that success. Even so, when we ran the initiative, lots of people insisted it was a bad idea.

Have you heard of concern trolls? They're typically internet commenters, but they could be anyone who attempts to undermine your argument by pretending to share your goal but disagrees with your strategy. They say your method will have unintended ramifications. We heard from a lot of concern trolls when we ran I-75—particularly from pot activists who said it didn't go far enough, it wouldn't pass, or our messaging was tailored too much to soccer moms. I agreed with them, kinda. But you should always ignore concern trolls.

Part of the reason pot politics are so fucking boring is because it feels like pot will stay illegal forever. You probably started talking with friends about why legalizing pot makes sense when you were like 14, and look—it's still illegal. Meanwhile, pot activists remain quixotic caricatures. Partly, that's how the press portrays them, sure. But partly it's because pot activists have been too uncompromising to win over Middle America (saying weed should grow in your backyard like roses!), and their campaigns are too amateurish to affect prime-time policy change. For example, we've been confronted at festivals for the last several summers with petitions to legalize pot, but those measures never show up on your ballot (until I-502 this year, which is run by pros). Hempfest attracts growing numbers, but the organizers are intent on keeping it culturally insular. Meanwhile, medical marijuana dispensaries get busted up and down the West Coast, contributing to this sense that federal raids negate every step in the right direction. Pot politics would seem a lot more exciting if, you know, Team Legalize would rack up some wins.

So, to go back to I-75, we ignored the concern trolls because we wanted to actually win.

And by winning, I-75 did more than just reduce pot busts. It helped put Seattle on record as a marijuana-friendly city. Just like San Franciscans can't be homophobic in their wonderfully gay-ass city, Seattleites can't be opposed to pot legalization when every elected official at city hall and member of the city's legislative delegation has gone on record supporting legal marijuana. That has shifted the region's identity, and it sets up I-502 to be the next win.

I-502 would work like this: (1) It would allow adults to possess up to an ounce of smokable marijuana, 16 ounces of solid-form marijuana cooked into food, and 72 ounces of cannabis infused into liquids; (2) it would then require the state to license pot farmers, pot distributors, and stores that sell those aforementioned cannabis products to folks 21 and over. In doing so, it would create a complete farm-to-joint legalization of marijuana that copies the same model we use to make, tax, and regulate alcohol.

I don't want to belabor this point, but HOLY FUCKING SHIT. No state has ever revolted against federal drug laws like this. If Washington passes this thing, we'll punch prohibition in the dick. Starting in December, we'd start nixing the roughly 10,000 possession arrests per year in this state.

The initiative's prime sponsor is former US Attorney John McKay, who's taken to the airwaves with millions of dollars of commercials to make his case along with former FBI bureau chief Charlie Mandigo, explaining that I-502 would free police and prosecutors to focus on violent and serious crime (that message voters love). Polls as recently as this week show I-502 has a very good shot: The UW's Washington Poll puts it at 51 percent support, SurveyUSA at 56 percent, and Strategies 360 at 55 percent, with many voters still undecided.

I'm not inside the campaign, which is called New Approach Washington, so I don't know what the polling looks like for effective messages. But the ads don't talk about race; that issue is mostly relegated to a three-point fact sheet buried on the website, upstaged by the messages about redirecting our police priorities and weakening cartels. But there's something for everyone. Legalizing pot would save law-enforcement resources, raise tax revenue, protect medical marijuana patients from arrests, remove a tool used to bust racial minorities, and more.

Still, the concern trolls keep trolling.

Last week, I was on the phone with John Walters, who was George W. Bush's drug czar and who was conducting a conference call for reporters with former law-enforcement types. The stated goal was sending a message to the Obama Administration that they must vocally oppose I-502, in addition to pot initiatives in Colorado and Oregon, just as the Feds have done to previous pot initiatives.

Getting the White House to speak up—which Walters did twice in his efforts to stymie I-75—"would defeat these measures," Walters said.

Here's what was so bizarre: The leading argument at the top of the conference call was to say that these initiatives wouldn't actually legalize marijuana.

"Federal law, the US Constitution, and the US Supreme Court decisions say that this cannot be done because federal law preempts state law," said Peter Bensinger, former DEA administrator. This was some serious concern trolling. Consider the argument here: Don't legalize marijuana because, if you do, marijuana still won't be legal enough. Really? If you're so concerned that a popular vote on this issue is moot, then why are you staging a three-ring political circus asking the federal government to campaign to "defeat these measures"?

By definition, concern trolls aren't actually concerned that you'll fail—they're concerned that you'll win. And the drug czars and DEA chiefs, who also opposed medical marijuana that passed in 17 states, are now concerned I-502 will make Washington the first state to legalize marijuana for all adults. That would lead to more states legalizing pot and pot stores around the country. After all, medical marijuana dispensaries are proliferating fearlessly. Are they legal under federal law? No. Does that stop them? Nope. (The handful of federal raids generally only target the largest, sketchiest dispensaries.) These concern trolls are concerned that just like medical marijuana—which is 100 percent illegal by federal standards—recreational marijuana is going to become normal in America.

The truth is, federal officials don't have the resources or the jurisdiction to bust people for marijuana possession. It's just not what the DEA or federal courts do. If I-502 passes, it will strike down the state penalty for pot possession, and there isn't a single fucking thing the Feds can do to stop it—they can't preempt that portion of the initiative.

On the other hand, the US Department of Justice can—and probably will, if I-502 passes—attempt to challenge Washington's proposal to regulate the pot industry. They will likely challenge it in US District Court, and the case of United States v. State of Washington will be appealed and appealed until it reaches the Supreme Court.

Guess what?

That's the fucking point.

Let's have a national discussion about pot legalization, and let's have it be a discussion about a well-thought-out model for regulation that emulates the rigors of alcohol regulations. That battle is strategic, it's overdue, and it's the goal. And in the meantime, the new state law allowing people to possess marijuana will be what's enforced locally. So we have our cake and eat it, too.

A young woman who I met at a party last Friday didn't know how she would vote on I-502. She supported legalizing marijuana, she said, but wondered why, then, medical marijuana activists and some Hempfest organizers opposed it. I've explained this in detail in a long, long story in March—it's called "Pot Activists vs. Pot Activists," and you should go read it for more information on what I'm about to summarize—but since it's October and we're voting in three weeks, it bears repeating. Briefly.

The medical marijuana industry and certain pot activists (who, remember, have a track record of running initiatives that don't even make the ballot) want the perfect initiative: They want pot grown at home, they want no taxes on it, they want zero threat of federal intervention, and they want no penalties for driving stoned. Being a grown adult who wants all that is like being a child who wants a pony.

I-502 was tailored specifically to pass in November, so it contains regulations that copy regulations for alcohol. The folks who oppose it complain that I-502 would impose 25 percent excise taxes at each stage of production, thereby raising the cost of pot. They are concerned that the provisions allowing for farmers and stores will be overturned. But their biggest gripe is a provision about driving while stoned. At Hempfest, a petitioner working for a competing pot initiative told the throngs to oppose I-502 because "If cops pull you over and you have any THC in your blood, you can go to jail." He said that you'll get a DUI a week after getting high.

That's not true. Here's a summary of how the initiative works: It contains a provision for adults 21 and over that says if they're driving with more than five nanograms of active THC per milliliter of blood, they are automatically guilty of DUI. Of the handful of available scientific studies, not one shows even the heaviest pot user above that level the next day. In other words, the science proves that opponents' claims about pot DUIs the next day are wrong. When they say adults will get busted for DUI the next day, they are lying to you. Science shows that most people are below the five-nanogram level within a few hours, and it also shows that people who are above that level are more dangerous drivers. (As a caveat: The initiative also would not allow anyone under 21 to drive with active THC in their system, which is consistent with current law. As it stands now, all drivers can be and are convicted for any THC in their system while driving, so the initiative would actually be more progressive than current law for adults 21 and over.) But this isn't about adults getting busted while driving sober; the people who latch onto the DUI issue are fighting for their right to drive high.

As for taxes on pot, the teabaggers need to get over it.

As for medical marijuana patients, I-502 would finally protect them from being arrested for possession. I-502 doesn't change the state's Medical Use of Marijuana Act, passed in 1998, but that law doesn't protect patients from arrest for possession. It only gives them a defense in court. The only thing I-502 might hurt is the bottom line of the people who currently make money off of medical marijuana patients.

And, finally, while I-502 will face a federal challenge, again, the possession part can't be challenged, and that would eliminate roughly 10,000 arrests in Washington per year.

I-502's loudest critics are concern trolls. Moreover, they're concern trolls who have got theirs—folks who aren't going to get busted because they're largely white, authorized as medical marijuana patients, or wealthy from the medical marijuana market—and have little to gain by passing the initiative. Despite being a monumental leap for civil rights, they quibble, I-502 isn't ideal. But I-502 shouldn't be compared to the ideal law; it should be compared to prohibition, which is the only alternative we've got right now.

To the extent that people dislike compromises in I-502, I get that. Personally, I don't like the per se cutoff for driving, which says that you are automatically guilty of a DUI if the active THC in your blood is above the five-nanogram level; I think prosecutors should have to prove impairment. But per se cutoffs are the standard that we already have for alcohol, and like it or not, it's the same model we're going to see for marijuana. The reason those strict DUI provisions are in there is to help get this thing passed. Attacks focusing on stoned driving have played a big role in defeating other pot initiatives, such as Proposition 19 in California. A poll last year by Quinlan Rosner Research found that the DUI provision alone prompted 62 percent of voters to say that they were more likely to support I-502, and only 11 percent said it would make them less likely to support the initiative. Same goes for home growing; voters don't support it.

So I'm sorry, medical marijuana profiteers and Hempfest organizers, but legalization is going to come with big-kid, all-grown-up-now rules. That means rules for DUI, licenses for growers, taxes, and all that stuff that comes with regulating an agricultural commodity. Now that the movement has finally made it to the big time, it's the folks who've prospered under prohibition who are now whining that they like the old rules better. Of course they do: They're making money hand over goddamn fist under the old system. They'll always come up with a complaint. If another initiative comes around, they'll have complaints about that one, too.

And true, I-502 isn't everything. It won't single-handedly crush cartels, save the state budget, or end racial profiling in this country.

But America always takes small steps—every time with concern trolls nipping at the heels of progress. If we take this plunge on pot, yeah, there will be a federal challenge. But look at all the progress made on gay marriage even though the federal Defense of Marriage Act has been in place. There is a federal case for same-sex marriage now winding through the court systems toward the US Supreme Court. In the years that it's been in federal courts, gay marriage has gone from having minority public support to seeing a majority of Americans—including the sitting president—supporting it. A majority of people believing in marriage equality has become the national status quo, not despite a national challenge instigated by the states, but because of a national challenge instigated by the states.

If our idiotic drug war is going to rise to the same level of exposure, it will be because states force the issue. And that requires a state boldly defying federal law, former drug czars, the medical-pot profiteers, the fears that we'll never win, and centuries of racism that the drug war's been steeped in. That means passing I-502.