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Brief History of Marijuana Legalization

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On November 8, 2016, Californians and Americans living in several other States will be allowed to vote for the legalization of marijuana for "recreational use." Colorado and Washington voters have already taken that step. In California, the Adult Use of Marijuana Act (AUMA), will take its place on the ballot as Proposition 64, this fall. It will allow individuals over the age of 21 to possess up to an ounce and grow six plants. It will also allow for the court to dismiss charges, which have become legal. Smoking and vaporizing will only be allowed in designated areas, in public though. For decades the voices of reason have called out for an end to the criminalization of marijuana and its consumers. Now, the question that begs to be answered is: "Why did it take so long?"

From Tolerance to Prohibition

A Native American Shaman (Medicine Man) was quoted saying: "Only white people are stupid enough to outlaw a plant." Before 1933, cannabis was considered a household remedy that along with "coca" was an ingredient in Coca-Cola. "Cola" is a term used for the 'buds' or 'flowers' of the marijuana plant. During the American Revolutionary war, farmers were forced by law to grow a certain amount of hemp, which is the fibrous relative of the Cannabis Sativa and Indica strains. The Vikings and Egyptian Pharaohs used marijuana. Even Thomas Jefferson smoked weed, we are told; however, we only have anecdotal evidence of what type of relief he received from his cannabis consumption.

Public opinion turned against cannabis when William Randolph Hearst used propaganda to promote hemp and marijuana prohibition in the early 1900's. There was a new wave of immigrants from Mexico, who were accused of bringing cannabis to the United States. Hearst referred to the plant in his newspapers as "marihuana" to link it to the Spanish speaking community and unjustifiably associated it with violent behavior. African American jazz musicians were feared and loathed for their use of the plant, as a pretext. In reality, the cheaper paper prices hemp farmers offered, were a threat to the newspaper tycoon. His friends Andrew Mellon and the DuPont family were heavily invested in nylon; and the DuPonts had just invented a process for making paper from wood pulp. The hemp industry was a direct and formidable competitor to the lumber industry. Hemp use could have made their new paper-processing product obsolete; and reduced the need for nylon rope material. Just imagine, hemp is one of the fastest-growing renewable resources on our planet. It could have replaced the need for most nylon products. Hearst owned several newspapers and had a huge amount of his fortune invested in cutting down forests. Nowadays, from the roof of his Hearst castle in San Simeon, the tour guide tells you that as far north as the horizon; used to be the border of his property. These ruthless businessmen and their families were very influential and marijuana stood in their way of huge profits and political power. Combine that with racist hatred, it is easy to see how these oligarchs were able to have the government outlaw a plant.

Peak Prohibition: The War on Drugs

Eventually in 1937 the Marijuana Tax Act finished the job and outlawed the use possession and sale of cannabis. Richard Nixon signed the Comprehensive Drug Abuse Prevention and Control Act of 1970, making cannabis illegal for any purpose whatsoever. In a 22 year old interview, re-published in Harper's Magazine, former aide John Ehrlichman admitted that the sole reason Nixon targeted marijuana users, is because it was the only way he could disrupt the African American and Liberal anti-war communities, which opposed him. If convicted for a charge of felony possession of marijuana or any other felony drug offense an individual loses their right to vote and serve on a jury. How convenient for Mr. Nixon and his compadres! Now adding to the hypocrisy, DuPont has recently reached a settlement in a major class action suit by Americans whose bodies have been toxified by a chemical called "C8", which comes from DuPont products, and causes cancer and other life threatening diseases. Yet, cannabis is still outlawed federally as a Schedule I drug.

The Slow Demise of Prohibition

In 1996, California voters overwhelmingly passed Proposition 215, also known as the Compassionate Use Act. This allowed patients choosing to medicate to do so legally under state law. This was the beginning of the National wave of Medical Marijuana law reform. Hawaii's legislature passed a similar law. At the time of this writing, Washington, D.C., and twenty-four states have legalized medical marijuana.

The first attack against California's medical marijuana law by the establishment, through law enforcement, was against the doctors. They were subject to arrest when prosecutors who refused to acknowledge the will of the voters charged Dr. Marcus Conant for recommending marijuana to a patient. However, in the Conant decision the United States Supreme Court ruled that the doctor/patient relationship allows for the recommendation of cannabis. After that decision, we saw doctors advertising freely offering MMJ recommendations. In 2004, the Marijuana Program Act aptly named "SB420" went into effect, which gave more teeth to Prop. 215, was passed by the State legislature in Sacramento. In People v. Kelly, published in 2010, the California Supreme Court acknowledged the medical marijuana defense and ruled that the legislature could not amend a proposition limiting a defense voted into law by a majority of Californians, striking down limits on quantities.

In September 2015, Governor Jerry Brown signed the Medical Marijuana Regulation and Safety Act (MMRSA) into law, providing for the licensure of marijuana growers and other aspects of the industry. The California Department of Consumer Affairs will be the agency responsible for implementation and regulation. The program is expected to be fully implemented by January 2018.

These developments are encouraging for the marijuana industry in California. However, even if legalized under State law, current Federal law means that California medical marijuana patients, their caregivers, and suppliers continue to face prosecution by federal authorities such as the DEA.

If marijuana remains a Schedule I drug under the federal scheme (and the DEA recently indicated that it would) the U.S. Attorney General could prosecute individuals in States where marijuana is legal, and the juries hearing these cases would probably not be allowed to consider that it is legal under that State's law. Then if convicted, the federal sentencing guidelines would kick in. That means if the government can prove the patient possessed or cultivated 100 or more plants or hundred pounds of processed marijuana the judge would have no choice but to sentence them to five years in federal prison. For 1000 plants or more or possession of a thousand pounds or more, the mandatory minimum federal sentence is 10 years! Honest law-abiding Californians, who opted to grow, and/or possess marijuana or form collectives, are now serving draconian federal prison sentences.

There has been some positive progress easing the criminalization of marijuana on the federal side over the last few years. In 2009, the Ogden Memo from the U.S. Attorney General's office was published. It indicated that U.S. Attorneys in districts where the voters had enacted medical marijuana laws should take that into consideration when deciding whether or not to indict; not much more. Yet, it was as if the floodgates were opened. Storefront medical marijuana outlets popped up all over California. Most of their operators had researched the law and some even consulted attorneys who told them "it's okay!" Naturally most of those lawyers were not to be found when it came time to testify on the behalf of the 'bud tenders' after criminal charges were filed. The Cole Memo in 2011, seemed to be an attempt to curb the tide of the fledgling marijuana industry; however, the most recent Cole Memo of 2015, indicates a renewed softening of the U.S. Attorney General's stance with regard to prosecuting individuals in States where marijuana is legal under State law. Interestingly, that same memo could be interpreted to give Native American sovereign nations the right to grow marijuana on their lands.

At this time, there are rumblings in Congress and the Senate by both Democrats and Republicans to reschedule marijuana. The Justice Department will not receive funding for marijuana investigation and prosecutions in those states where it is legal for medical purposes. Only time will tell if changes will really be made soon on the federal level. Nevertheless, even in states where medical marijuana is generally accepted patients face discrimination in employment and often, unfair loss of rights and privileges with regard to Family Court matters and the Department of Motor Vehicles. Use of medical marijuana can also affect your right to own a firearm. The "Reefer Madness" stigma of marijuana use will only die off slowly.

Nevertheless, Californians will have the opportunity to turn back the clock on marijuana criminalization at the ballot box this November. They will hopefully reverse the draconian laws put into place by the upper one percent of the super wealthy of the Great Gatsby era, who used untruths in the media and demonization of minorities to control their market share and increase their fortunes. Some things don't change, do they?

© The Law Firm of Richard Duquette, 2016, All Rights Reserved.

Co-Authored by: Mark Bluemel, Richard Duquette, and Justin Nelson

October 31, 2016

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