"It's No Longer a Matter of If, It's a Matter of When"

Staying high on marijuana legalization after the defeat of Proposition 19


On election night, I was in the driveway of the law offices of Bruce Margolin, head of the Los Angeles branch of the National Organization for the Reform of Marijuana Laws (NORML) and L.A.'s most famous pot-crime defense lawyer. The local marijuana community had gathered there to celebrate (or mourn) the vote returns on Proposition 19. This was California's high-profile chance to legalize the possession of up to an ounce of marijuana and to grow up to 25 square feet of marijuana plants. The proposition would also grant localities the power to allow higher limits for possession and growth, and, if they chose, to legalize, tax, and regulate sales.

An hour or so after the 8 p.m. poll closing, despite the optimism and polling that presaged victory a month ago, we all knew voters had rejected this opportunity to liberalize their state's marijuana laws, 54-46. The proposition won in only 10 of 58 counties—all but two on the state's west coast. Los Angeles, which had enjoyed (or to some, suffered) the greatest profusion of retail marijuana shops under California's existing medical pot regime, did not choose to legalize for all adults.

California's voters had been told by 19's proponents that legal pot for adults offered unprecedented opportunities for elevating both government revenue and racial justice, for redirecting police resources more helpfully, and for creating many good local jobs in the growth, processing, and sales of hemp and marijuana.

Those same voters had also been told that voting yes on 19 would lead to a flood of drugged drivers and zonked employees going unpunished and unpunishable, and an angry mob of federal agents meting out rough pot justice if the state went wobbly. The local option built into the proposition's language that would have freed localities from having the Bay Area's sense of pot's propriety imposed on the whole state was recast by opponents as a chaotic nightmare of different jurisdictions treating pot differently that would, somehow, be worse than the ways similar laws governing such matters as alcohol and guns already shift from county to county and city to city.

In the end, a half million more California voters chose to say no thanks to legal pot than chose to legalize it. A pro-19 effort of over a year, nearly $4 million in spending (more than 10 times as much as the official opposition to 19), and the tabling, door-hangering, and get-out-the-vote phone calling of many hundreds of volunteers was over, with nothing to show for it.

That's one way to look at what happened with Prop 19. But there in Margolin's driveway, where a small mob of 19 fans would gather every 20 minutes or so when the local news went live, cheering and shouting "Yes We Cannabis!," even when defeat was conceded, the phrase spilling most often from the lips of 19 spokeswoman Amanda Rain Brazel to the reporters and cameras was this: Pot legalization was "no longer a matter of if, but of when."

Richard Lee, a pot entrepreneur who runs both dispensaries in Oakland and Oaksterdam University, a school for would-be entrepreneurs in growing or selling the legally ambiguous leaf, was the proposition's prime funder and original sparkplug. He told the Sacramento Bee after his proposition's defeat, "We just need to do some research and see why people voted 'no'….We did get more votes than (gubernatorial candidate) Meg Whitman. And she spent more than $140 million. We need to look at the bright side."

At a telephone press conference the next morning from Oakland, representatives of various parts of the 19 coalition did just that, laying out their reasons for seeing potential victory in 19's apparent defeat. When Lee launched 19, most other elements of the drug law reform movement, from the NORML to the Marijuana Policy Project (MPP) to the Drug Policy Alliance (DPA) told him he was picking the wrong year, that he was moving ahead too early.

They eventually came on board after 19 made the ballot, and at the press conference Ethan Nadelmann of the DPA (whose most prominent supporter George Soros came in with a last-minute million dollars for the campaign that helped sponsor a rush of TV ads) admitted that "I was among those who initially tried to discourage Richard from going forward. We said 'wait until 2012.'…I called Richard a couple of weeks ago to say, 'Win or lose, you were right. Even if we don't prevail, the transformation in public dialogue, not just in California but nationally and internationally, has been nothing short of stupendous. The debate over marijuana legalization has been elevated to legitimacy.'"

Nadelmann and others in the Yes on 19 campaign also think it highly likely that the pressure of Proposition 19—and a desire to blunt its most sympathetic selling point, the damage done to people's lives by being dragged into the criminal justice system, even for a misdemeanor, merely for possession (61,000 such misdemeanor arrests in California last year)—led Gov. Arnold Schwarzenegger last month to sign S.B. 1449 into law, which reduced the penalty for an ounce or less to a mere infraction and a $100 fine, the legal equivalent of a traffic ticket.

(Article continues after the video, "Brian Doherty Explains the Failure of Prop. 19 and What It Means for the Future of Pot Legalization.")

As many Prop. 19 activists told me, not even their most tenacious opponents were out to defend the drug war status quo. (And I noticed that almost no one anymore is willing to be loudly against medical marijuana, including even the loudest anti-19 spokespeople, 14 years after it passed in California amid great controversy.) People against 19 tried to be specifically against 19, not to fight over the wisdom of the drug war as it is actually waged.

A major complaint about 19 specifically was, as anti-19 speaker John Redman of Communities in Action said at an October debate at Cal State Fullerton, "Proposition 19 is called the regulate, tax and control cannabis act, but it doesn't do any of those things" since any specific regulations, taxes, and controls that might follow legalization were not built into the proposition but left up to localities. Enemies of 19 were unhappy—as were libertarian critics such as Jeffrey Miron and Walter Olson—that the proposition tried to protect legal users from being punished by their employers if their pot use did not lead to actual on-the-job impairment.

Still, exactly what set of concerns caused 19 to lose is still unclear, beyond a failure on the Yes campaign's part to greatly increase usual youth turnout, where their support was greatest. The Yes on 19 forces even had police out front and center, most prominently from Law Enforcement Against Prohibition; the opposition had police chief and narcotics officer unions among its biggest-buck supporters.

But the really big money never rolled in to the anti-19 campaign, not even from deep-pocketed interests with money at stake such as prison worker unions, prosecutors, and the alcoholic beverage world. As lobbyist John Lovell from 19's opposition said, "We always knew they would outspend us and we learned from Proposition 5 [a losing 2008 California initiative that would have reduced criminal penalties and increased treatment for nonviolent drug offenders] that we didn't have to match them dollar for dollar. We did have to raise enough to get our message out and once people understood what was in the measure they came with us and never went back." The slow fall in polled support for 19 over the past month gives some credence to Lovell's take; with only $300,000 or so to spend, the No on 19 campaign relied on earned media and some radio—and the editorial support of pretty much every paper in the state, as well as the political support of pretty much every politician.

A CNN poll shows, disturbingly, that voters who think of themselves as the most anti-government were more likely to be against getting the government out of harassing, fining, and arresting people for growing, selling, and using the sweet leaf. In fact, 67 percent of those who think government is doing too much were anti-19, as were 60 percent of those "angry" at the federal government and 71 percent of Tea Party supporters.

Polling done by Greenberg Quinlan Rosner Research shows a gap between those who believe in pot legalization and those who voted for 19. Fifty percent of their 800 polled voters believed marijuana should be legal, while 31 percent of people who said they were going to vote "no" on 19 also believed this. Something about Prop. 19 in particular bothered them, though as yet, as Nadelmann says, "we have no hard evidence whatsoever that any one of the provisions helped or hurt and no really good evidence about whether any particular message helped or hurt."

Initially there was evidence of what was being called the "reverse Bradley" effect—or more comically the "Broadus effect" (after famous pot devotee Snoop Dogg's real name). This is the idea that people were reluctant to tell a pollster they were for legal pot, but would feel free to let their freak flag fly in the privacy of the voting booth. (The proposition was doing better in robot polls than ones where a real human did the polling.) But in the end, despite the belief expressed by a leading 19 strategist early in the campaign, there were not as many closet 19 voters as there are closet pot smokers.

As the camera crews were packing up in Margolin's driveway, pot smokers were well out of the closet, with clouds of smoke openly filling even the press-segregated space on the opposite side of the wooden fence where the real party was happening. A long-haired, muscular man in a pot-competition-themed black T-shirt strode pranksterishly through, announcing, hey, have you heard, man? Proposition 19 won. Everything's cool, man.

The official word from the marijuana reform movement echoes, if not precisely, that cheeky optimism. Even now, I'm told, stakeholders are meeting; Dale Sky Jones of the 19 campaign tells me she's hearing from state legislators who are willing to come on board, and she's ready and planning to sit down with all the proposition's friends and enemies public and private and figure out the right places and means to shift gears, adjust around the edges, and come back and win, either through initiative or legislation. (Colorado or Nevada or any other Western state with 50 percent or more polled support for legalization are in active play for legalization activists, in addition to a second try in California.)

From all across the drug policy spectrum I hear about the substantial progress 19's campaign represents, never mind the electoral loss. This includes the highest vote total of any statewide legalization measure ever; a new coalition including labor and civil rights groups, not just the usual drug policy suspects; and substantial five and six-figure donors entering the big-money fight for drug law reform for the first time.

In thinking about the politics moving forward, it's worth remembering that first out of the gate to crow over the defeat of Prop. 19 was, of course, President Obama's drug czar Gil Kerlikowske. It is true that pot law reform is a Democratic issue in the sense that voters who identify as Democratic are more likely to support it. But it is not a Democratic issue in the sense that Democratic politicians support it.

Focusing only on the politics and policies and votes surrounding marijuana these days, it's easy to forget it's really all about that age old game of cops and crooks—or in the case of this victimless crime, of cops and victims. At the Margolin bash, I was reminded of this by Stephanie Landa, a friendly, quiet, dignified woman in her 60s.

Landa spent years in jail and is still on probation for growing for the medical market in San Francisco. Landa is a heroine and martyr in the medical community. Yet many in that community, and even more the growers in Northern California's "Emerald Triangle" who feed that market (California's most legendarily marijuana-associated counties, the growing lands of Humboldt and Mendocino, both voted against 19), were afraid of Proposition 19 upsetting a status quo they were comfortable with, or were making money in.

For Landa the issue was far simpler than speculating about who might come out ahead or behind in some hypothetical big market in legal pot. "I just don't want anybody to go to prison anymore" for the sale or ownership of this plant, she says.

And what about the people who might be sending someone to prison? Stephen Downing of LEAP, a 20-year Los Angeles police veteran who went from patrol car to deputy chief, diligently promoted Prop. 19 in public events. (LEAP was a key component of 19's messaging from the beginning. As one 19 strategist said, the campaign deliberately put forward mothers, police, and policy professionals while "keeping rastaman in the basement" to help shift public perception about who cared about legalization, and why.) At the post-election press conference, Downing exhibited the conscience of a lawman who knows as Landa does, from the other side, exactly how useless and destructive the cop and victim game is when it comes to marijuana.

Because of the Prop. 19 campaign, Downing said, "the word 'legalization' has become acceptable and normal. This change requires compassion and enlightened self-interest, and I will personally educate as many police organizations, law enforcement unions, law enforcement interest groups, as I can so more and more working law enforcement professionals come on board: out of compassion for their fellow man and enlightened self-interest in how ending prohibition will make them more effective in providing a safer community, for these people sworn to protect and serve."

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).