hill country observerThe independent newspaper of eastern New York, southwestern Vermont and the Berkshires


News & Issues October 2016

Just saying no to prohibition?

Marijuana legalization debate heats up as vote nears in Mass.


Contributing writer



Judy Harris thinks marijuana would help with pain from her childhood case of polio, but trying to navigate the state’s medical marijuana system proved too frustrating. Now she favors outright legalization. Emily Walsh photo

Judy Harris wants pot, and she doesn’t want to have to travel to Northampton to get it.

Harris, 65, endures painful complications from a childhood bout of polio, and she has tried many ways to get relief, from codeine to Reiki. She believes marijuana would provide the most effective pain relief.

So Harris was happy when Massachusetts voters overwhelmingly approved a 2012 ballot initiative allowing the use of medical marijuana. Four years later, though, she hasn’t had any success in obtaining any legal marijuana for her condition.

The new law took effect in 2013, but there isn’t any legal source for medical marijuana in the Berkshires, and Harris has yet to obtain a prescription. People can’t enroll in the state’s medical marijuana program without a doctor’s approval, and many doctors have been reluctant to get involved.

“I kind of gave up on it, frankly, and a lot of people did, too, because it was impossible to find a doctor who would write you a prescription,” Harris said. “They’re willing to write a prescription for you if you’re dying.”

She says her only option is to make an appointment with a practice in Northampton, an hour’s drive to the east, that would charge $200 to see her. Even then, medical marijuana wouldn’t be covered by insurance, making it a pricey option for pain relief in the legal marketplace.
“It’s become a social justice problem,” Harris said.

In addition, the state so far has approved the creation of only 10 dispensaries where patients can receive medical marijuana, and only seven of those have actually opened their doors. Six are within 40 miles of Boston, and the seventh is in Northampton. None are in Berkshire County.
So Harris is among many voters who favor a new ballot initiative this November that would simply legalize use of marijuana for anyone over 21 – for recreational as well as medical purposes. If Question 4 on the Nov. 8 ballot passes, Harris wouldn’t need to worry about trying to obtain medical marijuana through the state dispensary system.


Multi-state trend
If the initiative passes, Massachusetts would join four states (Colorado, Washington, Oregon and Alaska) and the District of Columbia that already have legalized adult use of marijuana.

The drug technically would still be illegal under federal law. But after voters backed legalization in 2012 in Colorado and Washington, the Obama administration sent a memo to federal prosecutors urging them not to interfere with state-sanctioned programs allowing the sale and distribution of marijuana.

Now Massachusetts is one of five states – the others are Maine, Arizona, Nevada and California – that will vote in November on ballot proposals to legalize marijuana. And in Vermont, where a legalization bill passed the state Senate earlier this year but died in the House, supporters are vowing to try again when the new legislative session begins in January.

If Question 4 passes in Massachusetts, the state treasurer would appoint three members to a regulatory commission which would be in charge of licensing commercial marijuana establishments and deciding which marijuana products could be sold in Massachusetts. Cities and towns would also be allowed to decide whether to allow the sale of marijuana on commercial properties within municipal limits.

All sales would be taxed at a state rate of 3.75 percent, and municipalities also could impose an additional tax of up to 2 percent on marijuana sales. Individuals could possess up to 10 ounces of marijuana, as well as up to six marijuana plants, in their homes. Outside their homes, they would only be allowed to carry up to an ounce. Also, people would be allowed to give up to an ounce of marijuana to others over age 21, as long as there’s no payment involved.

Like Harris, many of those in favor of the initiative believe the medical marijuana law that passed in 2012 hasn’t done enough to grant legal access to marijuana for those who need it. Other advocates say a 2008 law that reduced penalties for possessing small amounts of marijuana from a criminal offense to a civil one has not gone far enough to shield marijuana users from potential legal consequences.

Although the medical marijuana measure passed by a margin of 63 percent to 37 percent four years ago, polls predict a tighter outcome with this year’s ballot question. Many voters remain skeptical about the notion of legal access to marijuana; Harris said even her wife is unsure about her effort to seek it out for medicinal use.

Those campaigning against the measure argue that legalizing marijuana will make it too easy for juveniles to get their hands on it, especially if the new law sets off an influx of marijuana entrepreneurs. Many law enforcement officials also argue that legalization will lead to an increase in impaired driving – and that police lack the resources and reliable testing methods they’d need to keep stoned drivers off the road.


Campaigns pro and con
As in this year’s presidential race, many voters already have made up their minds about the wisdom of legalizing marijuana for adult use. So the campaigns for and against the ballot initiative are targeting the relatively small number of voters on the fence.

“Most people come to this with some sort of an opinion,” said Jim Conroy, a political consultant with Campaign for a Safe and Healthy Massachusetts, which opposes the measure.
The major force behind the marijuana initiative is an organization called Yes on 4, formally known as The Campaign to Regulate Marijuana Like Alcohol. Yes on 4 has the backing of two state senators and six state representatives, according to Ballotpedia; none hail from the Berkshires. The Yes campaign also has endorsements from former Gov. William F. Weld and from the state chapter of the American Civil Liberties Union, among others. Freshman U.S. Rep. Seth Moulton, D-Salem, also broke with the rest of the state’s congressional delegation last month by announcing his support for the measure.

There are three organizations spending money to oppose legalization, according to the latest filings with the state Office of Campaign and Political Finance. The one that’s spending the most, by far, is the Campaign for a Safe and Healthy Massachusetts.

Conroy said his group formed after the state Senate released a report in March criticizing the effort to put the legalization question on the state ballot. The group includes a bipartisan collection of public officials including Gov. Charlie Baker, House Speaker Robert DeLeo, Attorney General Maura Healey, and Boston Mayor Marty Walsh. The No side claims the support of all of the state’s current district attorneys as well as statewide associations representing sheriffs and chiefs of police.

Press releases for the No side list Conroy, a former adviser to Baker, and Corey Welford, a former chief of staff to Healey, as spokesmen.

Jim Borghesani, a spokesman for Yes on 4, noted in an interview that the most of the state’s political establishment was united in opposition to the 2012 medical marijuana initiative as well as the 2008 ballot question on decriminalizing possession.

“It’s not like this is a new, unique organization of people against marijuana legalization efforts,” he said.


Boosting a marijuana industry?
Many voters support or oppose Question 4 based on their judgment of fundamental issues such as whether marijuana is better or worse than alcohol, whether the government has valid reasons for restricting its use, and whether marijuana is addictive or acts as a “gateway drug” to harder substances like heroin.

National polls suggest pro-legalization arguments have been gaining traction in recent years. A Gallup poll in January, for example, found 58 percent of voters nationally favored full legalization of marijuana, while several polls from 2015 showed nearly 9 in 10 voters favoring legalization for medical uses.

In Massachusetts, the No side has lately been raising the specter of out-of-state cash and claims the ballot initiative was crafted “to benefit the commercial marijuana industry.”

The Yes side has indeed raised far more campaign cash, with most of the contributions coming from outside Massachusetts. According to state filings as of Sept. 9, Yes on 4 had raised more than $2.75 million in cash donations and had spent all but $29,000 of it. In contrast, the Campaign for a Safe and Healthy Massachusetts had raised about $363,000 and spent just $43,000.

“We never expected to be able to compete dollar per dollar for what is essentially an out-of-state investment from out-of-state marijuana entrepreneurs,” Conroy said.

But Borghesani scoffed at the idea that the ballot initiative was crafted to please outside interests. He said the proposed law was written with important in-state stakeholders in the room, including representatives from the Massachusetts ACLU and local patient advocates.

As for the out-of-state contributions, the vast majority -- more than $2 million -- of the money raised by Yes on 4 has come from a single source, a nonprofit political action committee based in Washington, D.C., called New Approach. The group is a legacy of Peter Lewis, a former chief executive of Progressive Insurance who became an advocate of legal marijuana when he began using the drug in the 1990s after his leg was amputated. Lewis died in 2013.

Of the funds raised by the Campaign for a Safe and Healthy Massachusetts, 44 of the 46 contributions listed in state records as of early September were from in-state donors. And one of the two out-of-state contributors is Bobby Orr, the former Boston Bruins player.

Weighing the risks
Another argument legalization opponents are raising is the prospect that passage of Question 4 would open the floodgates to sales of edible marijuana products that would be appealing to teenagers or could be accidentally ingested by children. Conroy and others point to the experience in Colorado, where voters legalized recreational marijuana in 2012. Conroy said about half of marijuana sales in Colorado now are in the form of edibles.

At a recent anti-legalization event, Conroy said, law enforcement officials laid out edible marijuana products beside regular candies and asked audience members to guess which was which.

“No one could guess,” Conroy said.
But Borghesani said fears of a tsunami of marijuana edibles are overblown, especially because of the way the Massachusetts initiative is written. If it passes, he said, regulators appointed by the state treasurer would have the final say over what edible products, if any, would be sold in Massachusetts.

“We are giving the regulators pretty much total authority over what can be sold and who can sell it,” he said.

Supporters of legalization say the bigger issue is that marijuana users can still face punishing legal consequences even though the possession of the drug has been decriminalized. Only four people were incarcerated in Massachusetts for marijuana possession in 2013 after decriminalization became law, according to the Massachusetts Sentencing Commission. But advocates say that number doesn’t reflect the full human toll of prohibition against recreational use of the drug.

Kassandra Frederique, director of the New York chapter of the Drug Policy Alliance, said many marijuana users in her state live in fear of being caught with the drug, even though New York also decriminalized it years ago. Civil fines and summonses given for low-level marijuana possession may have a cascading effect, she explained.

“Those can be the grounds to get your child taken away,” Frederique said.


Vermont, N.Y. debates
In the past year, lawmakers in both New York and Vermont have debated issues of marijuana access, and for a time earlier this year it appeared that Vermont was headed toward full legalization. Neither state provides for citizen-initiated ballot questions, so activists who want to change marijuana laws are obliged to work through the states’ legislatures.

In Vermont, state Sen. Dick Sears, D-Bennington, led the crafting of a bill to create a legal, regulated market for marijuana in the state, ending decades of prohibition. Sears, as chairman of the Senate Judiciary Committee, shepherded the bill through his chamber, where it passed 17-12, and Democratic Gov. Peter Shumlin pledged to sign it.

But the measure died in the House, where Sears said the makeup of the 11-member House Judiciary Committee doomed its prospects.

“The real problem was that the makeup of the House Judiciary Committee was not at all disposed to do a recreational or legalization bill,” he said.

As in Massachusetts, Vermont already has decriminalized marijuana, and the state has a medical marijuana program. But it’s estimated that some 40,000 people risk penalties for using pot each year.

“Basically, I didn’t see prohibition working,” Sears said. “That’s a tremendous number of people breaking the law on a regular basis.”

Sears said he and other proponents of legalization will try again in the next legislative session. But much depends on the outcome of November’s race for governor, in which Democratic candidate Sue Minter has expressed support for marijuana legalization while her Republican opponent, Lt. Gov. Phil Scott, has opposed it. (Shumlin is stepping down.)

In New York, several bills proposing legalization have failed to gain traction. But advocates did succeed in pressing the administration of Gov. Andrew Cuomo to loosen some of the restrictions in the state’s medical marijuana program, which was set up two years ago. Under the new provisions, based on recommendations from the state Health Department, nurse practitioners, rather than only doctors, will be able to decide whether patients qualify for medical marijuana, and approved patients will be able to receive home delivery of the drug. State health officials also will begin debating whether to open up the program to more people with serious health conditions.

But Frederique, of the Drug Policy Alliance, said the medical marijuana program is still proceeding too slowly in New York.

“There’s no definitive timeline” for some of the changes, she said. “It’s continuous stop-and-wait, stop-and-wait.”


Changing views
In the past four years, a total of seven marijuana legalization initiatives have been presented to voters in various states and the District of Columbia. Of those proposals, five passed. Two campaigns ended in defeat: Ohio voters blocked a legalization measure in 2015; and Oregon voters rejected legalization in 2012 before backing a similar measure in 2014.

Meanwhile in Canada, the new Liberal government is expected to introduce legislation in 2017 to legalize marijuana use. In Mexico, the nation’s highest court ruled in 2015 that it was legal to grow and consume marijuana for personal use.

Borghesani acknowledged that the fate of legalization initiatives can depend on timing as much as how the proposals are actually written. The fact that the Massachusetts proposal is on the ballot in a presidential election year, when turnout among younger voters typically is higher, should improve its chances for passage, he said.

But public opinion on ballot questions sometimes shifts more rapidly than in contests involving actual candidates. Massachusetts is considered one of the most liberal states in the union, and those states are thought to be more open to marijuana legalization. But California, another liberal bastion, defeated legalization in 2010.

Most polls conducted this year have found Massachusetts favoring legalization, but two polls did not. The most recent poll as of mid-September, by radio station WBUR, found 50 percent supporting Question 4 and 45 percent opposed.

Ultimately, the success or failure of Question 4 may depend on which side can target voters most effectively this month. Borghesani contends his side has an edge because it bought television advertising time in advance. (Prime advertising time might be scarce this month, particularly in the Boston area, because of the competitive presidential and U.S. Senate contests in neighboring New Hampshire.)

Although the Campaign for a Safe and Healthy Massachusetts had not reserved advertising time as of mid-September, the group had more money left than the Yes side to make such purchases.
(The No side appears to be lagging behind in its use of social media. As of mid-September, a digital squatter was using the name of the Campaign for a Safe and Healthy Massachusetts for a Facebook page favoring legalization.)

Of course, looming over all of this is whether the federal government ultimately might change its policy of prohibition if enough states decide to sanction marijuana for medical and even recreational uses.

In August, the U.S. Drug Enforcement Agency rejected a request from the governors of Washington and Rhode Island to shift marijuana to a less restrictive category under the federal Controlled Substances Act. The decision means marijuana remains a Schedule I drug, the most restrictive category under federal law. Schedule I drugs, which include heroin and LSD, are considered to have no medical value and a high potential for abuse.

So even if Massachusetts voters support legalization in November, the cloud of potential legal risks won’t completely go away for consumers like Harris and the businesses that might like to supply them.