Marijuana supporters nationwide awoke on November 3rd to find they had been defeated in all four statewide initiatives on the ballot. While losing these battles is not good news for our movement, the lessons we’ve learned and coalitions we’ve formed will help us win the war even sooner.

California’s Prop 19 received 3.4 million votes for legalization, which represents 46.1% of the voters. This is the best a statewide marijuana legalization measure has ever done, besting Nevada 2002 (39%), Alaska 2004 (44%), Colorado 2006 (41%), and Nevada 2006 (44%)

The most recent Gallup Poll showed 58% support among Westerners for “legalization”. That means there are 12% of our supporters who dropped their support for legalization once the details are spelled out. What lessons have we learned from the loss? I believe there are ten main lessons we need to learn to succeed in 2012.

1. We must explicitly protect medical marijuana rights.

During the campaign some on our side were surprised by the emergence of the “I Gots Mine” crowd, the so-called “Stoners Against Legalization”. But the fact is that in a medical marijuana state, especially California, what they “gots” is pretty amazing. Moving forward, any legalization measure in a medical state must include the following three explicit points:

a) This legalization bill will not affect your medical marijuana rights in any way.

b) Your medical marijuana rights will not change in any way once legalization passes.

c) If you are concerned about your medical marijuana rights, please see points a) and b).

I’m being somewhat facetious, but the point better be taken. No legalization bill is going to succeed unless the current medical marijuana smokers believe it makes their lives better or at least doesn’t threaten to change their lives.

Now, I know as well as anyone that Prop 19 wouldn’t have affected medical rights, but it got lost within the Purposes and Intents and buried in a cloud of “notwithstandings” and “excepts”. The next initiative needs to have an explicit declarative paragraph protecting medical rights. And it has to be written in such a way that it is perfectly clear to even the most unlikely, naive, and uneducated voters, which leads me to…

2. We must remember that people 18-25 are our biggest group of stakeholders and we cannot over-penalize them to appease our opponents.

The theme that Prop 19 would be creating a crime out of 21-year-olds passing joints to their 18-20-year-old friends resonated among every toker who first smoked a joint with an older friend or sibling. I even heard from people aged 18-20 who thought Prop 19 made them a felon. The new crime was created to soothe the soccer moms, but I think people realized it would be as ineffective at stopping young college kids from toking as the 21 drinking age stops frat keggers, so that all we’d accomplish is creating new criminal records for young people. The next initiative needs to retain the 21+ age (18 just won’t pass when alcohol is 21) but leave the punishment for furnishing to 18-20-year-olds the $100 ticket it is now… or at least don’t make it more punitive than the law for alcohol.

I understand the “make it like alcohol” motivation of punishing someone who furnishes to minors, but the punishment called for by Prop 19 was akin to the punishment for one who furnishes to a teen who then causes serious injury to self or others. The minimum punishment for merely furnishing alcohol, absent injury, is a misdemeanor, a $1,000 fine and 24 hours community service. Thus we were portraying marijuana as far more harmful than alcohol (see point 5 below) by implication.

3. We must find a way to integrate the current illegal growers into a new legalized market.

The results from the so-called “Emerald Triangle” – defeats for legalization in Humboldt, Mendocino, and Trinity counties – show us that legalization has to be framed to appeal to small time marijuana growers. Putting aside the immorality of profiting from the misery of prohibition, the fact is that many small time growers are paying their mortgage and feeding their families from profits on illegal marijuana. Nobody is going to vote to reduce the price of weed from $300/oz to $60/oz when that takes food out of their kids’ mouths. The next initiative needs to create a level playing field for small businesses to compete in marijuana cultivation. By emphasizing small, local grows, we can increase the grower vote while also soothing pot smokers worried about “WalMartization” and non-tokers worried about pot becoming as ubiquitous as alcohol they see advertised daily nearly everywhere.

4. We cannot win until people are more scared of prohibition than they are of legalization.

People resist change. In order to shake things up, they need to find the status quo unacceptable and the alternative a moral good. Early on, many of our messages focused on what good would come from legalization, such as tax revenues (see point 6 below) and prioritization of police resources. While these things are good, they don’t tell the story of why it is so critical to change the status quo.

It’s not that legalization must be approved, it is that prohibition must be ended. LEAP speakers made the point that every test on a baggie of pot for a $100 ticket means a crime lab test of a rape kit has to wait, but it came too late to make a commercial out of that point. We need commercials with high school weed dealers in parking lots and hallways, dealing without any regulations or ID checks. We need commercials with indoor marijuana grow factories taking over suburban neighborhoods because there are no legal commercial grows. We need commercials with illegal outdoor grows polluting our state parks. We need commercials of SWAT teams breaking down doors over a pot plant, abusing families, while the rapist, murderer, and thief escape detection. (We need billionaires to kick in big dollars sooner in the campaign so we can get these commercials on air.) All these commercials that would use scenes prohibitionists use against us need to be used against them in an act of rhetorical judo that shows those evils to be the result of the prohibitionary status quo, not the proposed marijuana legalization. The next initiative campaign needs to scare people about the out-of-control prohibition situation we have now. Which leads to the corollary…

5. We must stop painting the marijuana as a bad thing that needs to be controlled.

We did a great job with exposing the racially disproportionate nature of marijuana law enforcement. We’ve shown how much money is spent enforcing marijuana laws and how the cost of doing so is diverting police resources. We’ve illustrated the violent nature of the drug trade, particularly in Mexico.

None of that really matters, though, until we honestly address the social disapproval of “smoking pot”. The underlying premise of prohibition is that we are forbidding adults from an activity for all of our own good. Without addressing the morality of marijuana, the flaws we point out in prohibition are just kinks in the system that need to be improved, not an indictment of the reason for the system. We’re locking up too many blacks and Latinos? We’ll just try to be more fair about arresting all races equally, then. We spend a lot of money going after pot? How much is too much to spend to keep your kids safe? Gangsters are violent in the marijuana trade? That’s why we need to arrest people, so they’ll stop smoking pot. See how that works?

The next initiative campaign must do more pro-active positive portrayals of marijuana for adults. It is not enough to campaign against the bad guy (prohibition), you have to have a story arc for the good guy (legal marijuana use). People need to question why we bother arresting bright, successful, educated people and break up their loving families just because they prefer sensimilla to a six-pack or a cigarette. However, as we tell the good guy’s story…

6. We must be realistic about what legalization can and cannot accomplish.

As marijuana activists, we’re already starting with a deficit in the public trust column. So when we make our case, we have to be diligent about never over-promising what good can be realized by ending prohibition, especially if we attach hard numbers to those promises. It is too easy to become characterized as the glassy-eyed idealists who believe too much in the magic wonder herb when we supply targets that are so easily shot down.

Both the primary offenses in messaging can be traced to some honest mistakes. First was the claim that Prop 19 would raise $1.4 billion in taxes for California. This arose from the legislature’s legalization bill, AB 390, which proposed a statewide $50/ounce tax. Then the California Board of Equalization crunched the numbers and announced that $1.4 billion could be realized. Then AB 390 failed and Prop 19 took over, but never distanced itself from the $1.4 billion tax revenues and in a few instances, co-opted the $1.4 billion for internet forums and print. When Prop 19 instituted no required taxes and any taxes would be local, not statewide, everyone, even Prop 19’s supporters, knew that far less than $1.4 billion would be raised. Then when the Attorney General vowed to aggressively pursue anyone who opened up a Prop 19 shop, we all knew there would be even less taxes raised.

Next was the implication that Prop 19 would be a significant blow to Mexican drug cartels. Part of this owes to misinformation from the drug czar’s office, which had publicized the stat that 60% of the Mexican cartel income is raised from marijuana. But Prop 19 advocates could be faulted for accepting a drug czar’s word on anything, as well as not knowing their home state marijuana market well enough to realize nobody in California is smoking much Mexican brick weed. Combined with the “billions in taxes” saving the state, the “cripple the cartels” message was easily debunked and left us looking like we’re bullshitting the voters. The next initiative must be careful about promises and always return the focus to any modest gains from ending prohibition being more than what we’re getting now.

7. Legalize first, then deal with the drug testing issue.

You won’t find anyone who hates drug testing more than me. It’s inaccurate, unscientific, ineffective, and a disgusting invasion of our right to privacy. And I was thrilled to see non-discrimination language regarding drug testing in Prop 19. But tackling the drug testing issue along with the legalization issue presents too many conflicts for most voters.

Again, it’s about the good guy and the bad guy. The good guy is drug test that protects us at work from the bad guy, the whacked-out druggies. Many people are fine with you smoking a joint and getting whacked-out at home, but want to be sure you’re not smoking a joint at work or while driving. The drug testing language gave opponents a wedge to separate business owners, managers, and responsible workers from supporting us.

The next initiative needs to remain focused on the sole issue of ending the criminalization of people who smoke and grow pot. Once marijuana use is legal, and as the image of marijuana use becomes mainstreamed, the drug testing issue will be easier to work out. It would be considered ridiculous in most circumstances to have a work policy that accepted only teetotalers and punished someone for having a drink Friday night because he’d be dangerous on Monday morning. When marijuana is legal, soon those policies for pot will seem as ridiculous. Now, speaking of drug testing…

8. You can’t “treat it like alcohol” unless you can test for it like alcohol on the roadside.

We often use the phrase “treat it like alcohol” to get through to voters with little knowledge of marijuana (indeed, if they were educated, they’d realize treating cannabis like alcohol is an insult to cannabis.) But every time we do, we activate many long-held frames about alcohol, and one of those is “shit-faced drunks who drive”.

The “stoned drivers” scare is one of the few effective bits of rhetoric our opponents have left, along with “what about the children”? We insisted that Prop 19 didn’t at all change the cops’ ability to bust a stoned driver, but I believe this just did not overcome a gut feeling for most people that it would, because we could offer them no new tools for law enforcement to watch over stoned drivers while creating a more lenient state for marijuana users.

The next initiative must work with the “treat it like alcohol” frame by providing a “breathalyzer” equivalent for the stoned driver. This is the hardest part for me to write, because I so loathe drug testing and even the breathalyzer, which really does not prove anyone’s actual impairment. All any drug test proves is that you’ve used drugs, alcohol included. Some alcoholics can drive fine at a 0.12 BAC; some lightweights are a danger at 0.04 BAC. But since the public believes in the breathalyzer as a magical scientific instrument than can detect and help punish drunk drivers, and since we’re engaging them in the “treat it like alcohol” frame, they need something more tangible than “we’ll just bust them like we do now”, which rings hollow when the general public knows we bust the stoned driver (impaired or not) now just for having weed in his pocket or a roach in the ashtray. There are technologies available – blood testing, cheek-swab saliva testing, epocrine gland (armpit) sweat testing – that can show recent use of marijuana within four hours. That, along with a “no burnt cannabis / no used paraphernalia” in the car rule to match the alcohol-equivalent “no open containers” would go a long way toward negating the “stoned drivers” scare.

9. Commercialization must be handled with consistent statewide regulation.

Prop 19 designed its commercial regulations to be opt-in, with cities and counties each deciding if they wished to have regulated sales and how they would regulate them. The reasoning for this is sound, as the proponents wanted the commercial regs to stand up to federal court scrutiny, the theory being that since Prop 19 didn’t explicitly tell the state to allow marijuana commerce in violation of federal law, the commercial regs might not violate the Commerce Clause.

However, as a rhetorical piece to convince voters, it was lacking. Most people don’t trust their city government or believe it to be ineffective. Opponents were able to conjure a future where there were hundreds of different pot regulations across the state. This becomes troubling in a crowded Southern California where driving down one strip of road can pass you through multiple city jurisdictions that are visually indistinct from one another. Am I in City of Industry that allows me to have 2 ounces in personal possession or am I in La Puente that only allows one? How will our stores in Torrance collect their 10% marijuana tax when just up the road in Gardena they only charge 5%?

The next initiative must establish a statewide commercial regulatory framework. It will probably be squashed by the federal courts, but it will be better to have legal marijuana first and fight those commercial battles in court than to have prohibition and no chance in court. Once people have the legal right to possess, use, and grow marijuana, the commerce will inevitably follow (see: medical marijuana everywhere.)

10. Medical marijuana has reached its peak and is now inextricably linked to legalization.

In California, the people are already accustomed to a fairly open marijuana policy, where anyone who wants to toke can get a Prop 215 recommendation and buy it from many dispensaries. In the North it’s a well-regulated system that is contributing to clean neighborhoods and city tax revenues. You can see by the county results map above that most of the support comes from the Bay Area where cities and counties put together regulations and ordinances and created a healthy system. Why wouldn’t people vote for more of that?

But in the South it’s a “Wild West” system with tent after tent of “pot docs” on Venice Beach that can’t spell “cannabis” and carnival barkers pushing the “4-gram eighth”. This is the fault of the local officials who refused to put forth any sort of regulations, but that’s lost on the average voter. All they see is that what they have now is pot run wild. Why would people vote for more of that?

In South Dakota, a medical marijuana initiative failed in 2006 with 48% of the vote. In 2010, South Dakota’s support for medical marijuana dropped to 36%. In Arizona they passed a flawed medical marijuana initiative (it used “prescription”, not “recommendation”) with 65% in 1996. In 2010, it got just below 50% of the vote. In Oregon a measure to create medical marijuana dispensaries lost with 42% of the vote in 2004. In 2010, the dispensaries measure gained slightly with 43% of the vote.

This is reflected in Gallup polls on both medical marijuana and marijuana legalization. In 1999, support for legalization was just 29%, while support for medical use was 73%. It’s fair to say that people who believe in legalization would naturally support medical use, so the difference of 44% in 1999 would represent those who believe in medical use but think people who just want to get high should be punished. By the mid-2000s, medical marijuana support reached 75%-78% and legalization reached 34%-36%, meaning those who support medical-only dropped to 31%-32%. Now in 2010 we have legalization support at 46% while medical support has fallen to 70%, leaving only 24% who believe in medical-only.

The reason for this 20-point decline in medical-only support is that the public is beginning to feel hoodwinked on the medical marijuana issue. They completely support the cancer, AIDS, and glaucoma patients getting their medications, but have seen too many dispensaries, too many healthy-looking young people, too many huge marijuana gardens, too many large volume busts, and too many patients overall to believe that medical marijuana is anything but thinly-veiled legalization. Now that California, the first medical state, has gone forward with legalization, and since the previous legalization attempts were also in medical marijuana states (Nevada, Colorado, Alaska), the two issues are linked. This means the next medical initiatives and bills will have to be even more restrictive to convince the doubters who cry “Trojan horse!”

The next initiative needs to highlight the second-class-citizen nature of medical marijuana laws that can only be solved by full legalization. The legalization campaign needs to bring forth those same medical marijuana patients who played to public sympathy to get medical marijuana and show how even with medical marijuana, they are still harassed, arrested, tried, and convicted because they’re swept up in the overall battle law enforcement must engage with healthy marijuana smokers. People need to see the patients who lose housing, lose scholarships, lose child custody, suffer home invasion robberies, can’t travel outside the state, and hear from the patients themselves that medical marijuana just isn’t good enough.

And one thing we don’t need to do? Change the word “marijuana” to “cannabis”. I’ve heard this suggestion a few times, but I think it actually works against us. You and I know that “marijuana” is a Mexican slang term initially used for racist reasons to confuse and frighten the public. But now “marijuana” is the familiar brand name everyone knows. When we run from “marijuana” and only say “cannabis”, “marijuana” is emphasized by its absence. Why won’t they say “marijuana”? What are they trying to hide? What’s wrong with marijuana? It’s like when liberals go out of their way to call themselves “progressives” or when conservatives felt the need to emphasize “compassionate”; it’s distancing yourself from your own brand – if you don’t like it, why should anyone else?

The next initiative needs to just be honest: The Marijuana Legalization Act of 2012. There is nothing wrong with that linguistically or even ethically, as the laws on the books that this would repeal are “marijuana laws” – they use the term “marijuana” (or sometimes “marihuana”) in the statutes. We can, and should, pepper in the word “cannabis” as we explain the act, using it as the proper name of the plant species, but not be afraid to talk about “smoking marijuana” when the public brings it up. By now, people know the plant by the name “marijuana” and that name, in and of itself, doesn’t denigrate it in their minds any more than the less-familiar “cannabis” promotes it.

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