What's stopping Virginia from joining the movement to legalize marijuana?

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After the hearing in Richmond, after activists and academics and law enforcement members testified to change Virginia’s marijuana laws, and after a General Assembly subcommittee struck down two bills that would do just that, what was left in the hearing room was this: a small baggie of a “leafy substance,” stashed behind the podium. It was a message from a movement that’s growing state by state, subcommittees be damned.

It was a bag of pot, or something very much like it. More than that it was a promise: This isn’t over.

“I assume,” says state Delegate Rob Bell, “it was left as a comment.” 

If so, it was a wry comment, and its tone matched Bell’s. He had just led the charge that killed two bills that would have brought Virginia alongside 14 other states that have reformed marijuana laws.

On January 27 the House Criminal Subcommittee unceremoniously tabled HB 1134 and HB 1136, bills that would have expanded the scope of Virginia’s little-known and rarely used medical marijuana law, as well as decriminalized simple possession of marijuana, making it a civil offense punishable by a $500 fine. 

The bills sprung from a seemingly unlikely source—Harvey Morgan, a pharmacist from Gloucester County and the second-most senior delegate. Morgan is also a Republican.

“I can’t complain about not getting a good hearing,” Morgan said days after the Justice Committee’s criminal subcommittee of the Justice committee tabled both bills. “My only complaint is that this is supposed to be the Courts of Justice committee. And I don’t see this as justice.”

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If Morgan’s bills had passed, Virginia would have found itself at the front of a national movement to reform marijuana laws. Fourteen states have passed laws that decriminalize marijuana in some fashion, from the Wild West of California’s legal pot shops to New Jersey’s move to legalize medical marijuana that came nine days before the subcommittee tabled Morgan’s bills.

According to the most recent National Survey on Drug Use and Health, an estimated 102 million Americans have tried marijuana at least once. Approximately 25 million consumed marijuana in 2007. 

A 2009 Gallop poll found 44 percent of Americans are in favor of full legalization of marijuana. An Angus Reid poll published in December showed that 53 percent of respondents support legalizing marijuana. According to an ABC News/Washington Post poll, eight in 10 Americans support legalizing marijuana for medical use.

Our past three presidents have smoked pot. 

 “These [bills] are not coming out of thin air,” says Lennice Werth, the founder of Virginians Against Drug Violence. “We got the chance to show the public support for this. There’s no question that these bills will come back next year.”

A little baggie of leafy substance. Fourteen states, plus the District of Columbia. 

One might look at the support for change in marijuana laws and the change that’s happening across the country and wonder if Bell and the subcommittee are out of step with constituents.

“If you’re asking me whether my constituents, having heard the testimony on these bills, would have asked me to vote against these bills,” Bell says, “yes, I think that’s right.”

Morgan, just the same, promises to push for reform in future sessions: “I don’t see any reason why we shouldn’t, because I think the groundswell is moving in that direction.”

Decriminalization for medical marijuana “has been a state’s rights issue ever since California did what they did in 1996,” says Lennice Werth, the founder of Virginians Against Drug Violence. “This is a grassroots movement, no pun intended.”

Werth and other activists are already beginning to target Bell’s constituents, pushing them to push him. 

And then there’s Bell himself. This is his subcommittee, if not in name then in practice. A prosecutor in Orange County, he’s a stiff-jawed, law-and-order conservative. Since 2002, Bell has sat in Thomas Jefferson’s seat in the Virginia House of Delegates, serving as a no-nonsense roadblock to criminal justice reform. Among state Republicans, he is one of the brightest, in every sense of the word. 

If Virginia is to join the reform movement, advocates and legislators have work to do. Bell is not convinced that reform is such a great idea. He’s not alone. 

Decriminalization commeth?

As state after state decriminalizes medical marijuana, a standoff between state legislatures and the federal government has developed. These states are defying federal law, which maintains that marijuana is as harmful as cocaine and heroin, and that it offers no medical use.

In 1996, California took the first poke at federal law, passing Prop 215 by a slim majority. The measure allowed citizens to cultivate and possess marijuana for medical use with a doctor’s recommendation. It also opened up California to what some medical marijuana advocates call a “storefront” distribution system. Dubiously legit operations sprang up immediately, many of them with in-house doctors.

The Department of Justice and the Drug Enforcement Agency responded by raiding California dispensaries. State and local law enforcement found themselves caught between conflicting federal and state laws.

Since then, 13 other states have decriminalized medical marijuana in some form. Moreover, Washington D.C. introduced legislation that would create five medical marijuana dispensaries in the District, which would make it the 15th jurisdiction to legalize marijuana for medical purposes. The legislation was sponsored by nine of the 13 council members. 

“It’s been a state’s rights issue ever since California did what they did in 1996,” says Werth. “This is a grassroots movement, no pun intended.”

The end of 2009 saw a groundswell in pro-medical marijuana activity. On November 3, Maine voters approved the creation of nonprofit medical marijuana dispensaries. Later that month, the American Medical Association (AMA) reversed its long-held position and urged the feds to remove marijuana from the most restrictive category of the Controlled Substance Act

New Jersey soon followed suit. In early 2010, California introduced a bill that would legalize and tax marijuana use by all adults 21 years and older. 

This flurry of state movement came after Attorney General Eric Holder announced, last October, that the Department of Justice would not pursue cases against medical marijuana patients. It was a subtle yet distinct change—a sign that the feds would defer to state governments on the question of medical marijuana.

This twitch in the feds’ otherwise rock-solid position was the first signal from the Obama Administration that, after eight years of a Bush Justice Department so intent on fighting marijuana that it put Tommy Chong in jail for selling bongs over the Internet, things were finally changing. As 2010 approached, the coast was clear for states such as Maine, New Jersey, North Carolina and, yes, Virginia to push for the decriminalization of marijuana.

Your third-grader’s drug dealer

When Harvey Morgan announced his bills, they might not have been taken as seriously as he’d hoped. The Washington Post reported that Morgan’s Republican colleagues took delight in the kinds of high-minded puns and jokes that might have middle-schoolers rolling in the aisles. 

“Until the feds change the rules, we’re legislating in the dark,” says Delegate Rob Bell, who led the charge to kill two recent decriminalization bills in Richmond. “Rather than legislating, let’s wait to see what comes down from the feds before we do anything.”

But after a lengthy hearing where more than 70 people filled the chambers, the laughter stopped. Morgan even found an unlikely supporter in expanding the scope of medical marijuana—Republican Majority Leader Morgan Griffith. But even with Griffith’s support, both bills met the same fate after running into Bell.

The decriminalization bill, in particular, had political problems from the start. Along with making simple possession a non-criminal offense, it also reduced penalties for distribution. That reduction follows the bill’s logic: Marijuana is a less dangerous drug than Schedule One partners cocaine and heroin, and therefore the penalties for selling it should be less severe. 

But it opened an opportunity for opponents to reframe the debate—would a dealer who sells pot to a third-grader receive a lighter sentence? Yes. 

While that scenario might be a red herring, it proved an effective one.

“When you take the [decriminalization] bill out and look at all parts of it,” says Bell, “even people for whom possession is not a big deal, once you walk them through the selling of drugs at reduced penalties, that wasn’t something that anybody wanted to do.”

Here’s one of the major problems with marijuana reform in Virginia—legislators who support it are opening themselves to the charge that they’re “soft on crime.” Unless you’re a long-time pol with a lock on your senate or house seat, you risk political cover for a yes vote on a bill that makes it easier to sell drugs to a third-grader.

“I think people don’t want to be accused of being soft on crime in a campaign,” Morgan says. 

“I’ve seen conservative representatives sit in the room as these bills come up,” says Werth. “You might see a prosecutor who’s also a delegate or a Republican say, ‘I’m going to bring this up in the election. You’re soft on crime.’ It’s a threat system.”

Jon Gettman, a professor of public administration at West Virginia’s Shepherd University and a marijuana reform activist, acknowledged that reducing distribution penalties caused political problems. While those provisions would have brought distribution penalties in line with other standards, there was still the hypothetical third-grade drug buyer.

Gettman testified before the subcommittee about the intent of the 1979 state law that legalized medical marijuana for patients with glaucoma and cancer. 

“The basic argument that the legislature adopted in 1979 is still valid today,” he says. “Marijuana arrests are costly. They bring a lot of people into the criminal justice system who normally wouldn’t be there. Arrests really aren’t a deterrent to use.”

This is a common decriminalization argument—police have limited resources; busting people for possession doesn’t do anything except put someone into the system who doesn’t belong there; arresting these people takes time and resources. All of that being so, police should use their limited resources on real criminals. 

Statistics seem to bear this out. According to the Virginia State Police, in 2008, six of every 10 drug-related arrests involved marijuana. Marijuana arrests totaled 19,911. Crack cocaine was the second-most common drug-related arrest that year, totaling just 3,646. If police officers were no longer responsible for simple marijuana possession arrests, their resources—time spent in the field, transporting arrestees and processing confiscated marijuana—could be better spent.

Using this logic, Lennice Werth, of Virginians Against Drug Violence, argues that Bell isn’t staying true to his law-and-order principles by opposing decriminalization.

“His advertisements show people who were sexually assaulted saying ‘Rob Bell was my friend,’” she says. “But the truth of the matter is that while the police are out here arresting as many marijuana possession cases as they’re doing, they have less time to work on those important cases, not more. What he’s actually doing is working against the police having time to really do the work that they need to do on those crimes.”

In their testimony, Morgan and Gettman argued that not arresting, prosecuting and jailing people for marijuana possession could save Virginia $75 million, an enticing proposition for a cash-strapped state. But Bell pounced on this number, calling the projected saving “preposterous.”

Bell says Gettman’s suggestion that the cost of marijuana arrests should include 30 days of jail time for every first offender was “just specious.

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14 states have already legalized medical marijuana

 

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“There’s nothing illegitimate about [Gettman’s] philosophical argument,” says Bell. “But anybody who’s been a line prosecutor, a line cop, a line defense attorney—anybody who spends any time in court, and I mean any time, would know that [Gettman’s numbers] are patently inaccurate. In five years of prosecuting, there was never a time where the judge gave someone 30 days. In fact, a first offense never saw someone go to jail at all.”

Gettman called Bell’s argument “a legitimate critique,” though he says he used the same method in finding the savings to the state as the Office of National Drug Control policy. The disagreement over the numbers points to a larger question: Would decriminalizing marijuana really do what advocates say it will, namely, direct law enforcement’s focus to higher-priority matters? 

Charlottesville police chief Timothy Longo isn’t convinced. 

Longo says that before he would entertain a serious discussion of decriminalizing marijuana, he’d have to be convinced of two things: that there is no evidence that shows marijuana use leads to more and harder-drug use, and that it would not lead to an increase in the number of people “who could be potentially moving about our community in a state where…important functions are impaired.

DOCTOR’S ORDERS

Virginia’s medical marijuana code 

Though not many people are aware of it, Virginia decriminalized medical marijuana in 1979. The law permits possession and distribution of marijuana as medicine for two diseases—cancer and glaucoma. But it does not provide a system of distribution for medical marijuana.—S.W.

 

§ 18.2-251.1. Possession or distribution of marijuana for medical purposes permitted.

A. No person shall be prosecuted under § 18.2-250 or § 18.2-250.1 for the possession of marijuana or tetrahydrocannabinol when that possession occurs pursuant to a valid prescription issued by a medical doctor in the course of his professional practice for treatment of cancer or glaucoma.

B. No medical doctor shall be prosecuted under § 18.2-248 or § 18.2-248.1 for dispensing or distributing marijuana or tetrahydrocannabinol for medical purposes when such action occurs in the course of his professional practice for treatment of cancer or glaucoma.

C. No pharmacist shall be prosecuted under §§ 18.248 to 18.2-248.1 for dispensing or distributing marijuana or tetrahydrocannabinol to any person who holds a valid prescription of a medical doctor for such substance issued in the course of such doctor’s professional practice for treatment of cancer or glaucoma.

 

“This is particularly troubling if those people are driving a motor vehicle, operating machinery, riding a bicycle, or even walking through a high populated area where there is greater potential for vehicle and pedestrian dangers,” Longo said in an e-mail interview. “It is easy to argue that all these things can be said for alcohol use and use of certain prescription drugs, but to simply proceed down the path of decriminalization based solely on that argument seems to accept that we are willing to increase the inherent dangers of doing so simply because it already happens anyway, through the use of substances that may be currently legal to possess, but are nonetheless somewhat regulated through both sale and use.”

Do existing laws deter marijuana use? In 2005, the Charlottesville Police Department made 118 arrests for simple marijuana possession. These arrests accounted for 40 percent of all drug-related arrests that year. By 2009, only 84 of the city’s 332 drug-related arrests were for simple marijuana possession. Nearly half of drug-related arrests that year, 122, were for the more-serious Intent to Distribute Cocaine charge. 

If marijuana were suddenly decriminalized, would the number of marijuana users significantly rise? It’s impossible to tell. But if the number of Americans who’ve used marijuana at least once is any indication—102 million—current laws don’t look like much of a deterrent.

The fact remains, though, that the federal government still classifies marijuana in the category reserved for the most dangerous drugs, drugs without any accepted medical uses. States can legislate themselves silly, but until the feds reconsider, the largest barrier to decriminalization will remain.

Legislating in the dark

For all the arguments about law-enforcement priorities, state budgets, and medicinal uses, the DEA still classifies marijuana as a Schedule One controlled substance. According to the federal government, marijuana 1) has a high potential for abuse, 2) has no accepted medical use, and 3) lacks safe use, even under medical supervision.

If this doesn’t sound like the marijuana you know, you’re not alone. For years, medical marijuana advocates have been urging the DEA to reconsider its classification. With the shift in the prosecution of medical marijuana users, advocates are hopeful that under the Obama administration, the DEA will do just that.

Until marijuana is taken out of the Schedule One classification, opponents to drug reform like Bell have what is either a convincing argument against reform or a convenient cover for maintaining the status quo. 

“Until the feds change the rules, we’re legislating in the dark,” says Bell. “Rather than legislating, let’s wait to see what comes down from the feds before we do anything.”

Bell has a point. If Virginia were to join the ranks of Washington, California, Maine, New Jersey, et al., state code would directly oppose federal law. This is exactly what pro-reformers want, to turn medical marijuana and decriminalization into a state’s rights issue and force the federal government to review its classification of marijuana.

In 2002, Gettman and a group of activists filed their third petition to the DEA asking that the agency reconsider its classification of marijuana. The petition is essentially a review of the medical literature that has been published showing the medicinal uses for marijuana. Currently, the petition is under review by the Department of Health and Human Services. Gettman hopes its decision will come soon, now that the Obama administration has had enough time to staff the agency.

WHAT DO MARIJUANA AND HEROIN HAVE IN COMMON?

Not much, except they’re both Schedule One drugs

 

Marijuana is one of more than 120 drugs that the Drug Enforcement Administration (DEA) placed in Schedule One under 1970’s Controlled Substance Act. This means that, according to the DEA, marijuana meets each of the following three criteria:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States. 

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

 

“My hope is that the Obama administration is looking at this issue from a new perspective and that its decision not to pursue federal investigation and prosecutions of medical marijuana patients and dispensaries is a good sign,” Gettman says.

Science is on the reformers’ side. The AMA has found enough evidence to urge further study of medical marijuana, something that is currently almost impossible due to its Schedule One status. 

But even if the DEA reschedules marijuana, that’s no guarantee that state legislators like Bell will suddenly support decriminalization, though he allows that it would change the legislating process.

“If they did that, then we could directly address the issues of what purposes the drug could be used for in Virginia,” says Bell. “Instead of saying ‘Let’s hear from 14 people and see what we think,’ we’d want to get a full picture, get the medical professionals in.

“Until the feds change the rules, we can’t do anything.”

Of course, some states are moving now, with or without federal change. 

But knocking the ball back into the federal government’s court isn’t enough for Morgan and his supporters. They know that the movement for freer access to medical marijuana—and decriminalization of all marijuana, if it comes to that—won’t come from the top. 

“More and more states are doing this,” Morgan says. “If enough states do it, then the federal government will ultimately decide to [decriminalize marijuana].”

Bell knows this too. So his deferral to the feds is at the same time the careful legislating he is known for and a way to choke off further debate.

Even as Morgan’s bills died a quiet subcommittee death, the movement toward kinder, gentler marijuana laws is creeping toward the Commonwealth. The D.C. bill to open dispensaries in the nation’s capital is expected to pass through the city council by spring. North Carolina is still considering a bill to legalize medical marijuana. And the reaction that Morgan received after championing his bills has convinced him that Virginia is moving in the right direction.

“When I put the bills in, I didn’t know what my constituents would think about them,” he says. “But boy, I’ve only had one or two negative responses. When I was at home at public events, people went out of their way to come up to me and tell me they like what I’m doing. Other people have called and e-mailed. It’s just been overwhelming and gratifying.”