Decriminalization vs. Legalization

The Facts Are in Fact, More Important

There has been a lot of debate lately over a decriminalization versus legalization and what is best for the community. I have been really surprised to hear a lot of people arguing for decriminalization instead of legalization, so I’m going to take a few minutes to explain why I think legalization is the only path we should all be fighting for.


The politics around cannabis have always been greatly debated, for most of the 20th century, users and cultivators of cannabis were mixed together with some of the worst criminals and locked up with murderers and rapists for the simple act of cultivating plants. 

The movement to legalize marijuana in the United States started in San Francisco on August 16, 1964, when a young man walked into a San Francisco police station, lit a joint, and asked to be arrested. His lawyer was an ultra-conservative civil libertarian named James R. White III, who proceeded to form an organization called LeMar, which stood for “Legalize Marijuana,” which sponsored the first marijuana law reform demonstrations in America in San Francisco’s Union Square in December, 1964. 

The movement to legalize marijuana soon attracted poets such as Allen Ginsberg, who was famously photographed with the sign reading “Pot is Fun” and helped to instigate the cultural backlash against cannabis prohibition. 

Soon after LeMar, another group called Amorphia was founded in 1968 that called itself “The Cannabis Co-Op,” which manufactured rolling papers and used 100 percent of their profits to work to push legalization. 

A major breakthrough happened for the movement to legalize cannabis when a young Keith Stroup managed to get a meeting with Hugh Hefner and pitch his idea of creating what would become the National Organization for the Reform of Marijuana Laws, which went on to be known simply as NORML. Hugh Hefner, who was one of the most famous magazine publishers at the time, was also very progressive on the issue of cannabis, as he had been turned on to using in the late ’50s. 

Hef liked Keith and his idea and gave him the funding he needed to found the organization. Hef also started funding NORML through the Playboy Foundation and was one of their major donors through the ’70s, even going so far as to let NORML use the Playboy Mansion to raise money and awareness for the cause. 

Unfortunately, President Nixon was not a fan of cannabis legalization. In fact, he was the first president to declare the War on Drugs, which was really a war on the hippie/counterculture that was questioning the federal government’s war in Vietnam and resisting the draft. While Nixon was not able to stop the hippies’ right to their first amendment, Nixon did see marijuana laws as an opportunity to bust people on their way to speak so they would never be heard. 

In the early ’70s, powerful new tools of the federal government were created in order to enforce marijuana prohibition: one was called the Controlled Substances Act (or simply the CSA) and the classification of various substances from 1 to 5 based on medical use and abuse. 

Substances that were found to have no medical use by the United States government such as LSD and, you guessed it, cannabis were put into the most strict class of controlled substances: Schedule 1. 

In 1973, the Drug Enforcement Administration (DEA) was created in order to be a federal police force around the Controlled Substances Act. They were well-funded and had the full cooperation of every police department they encountered. I only wish an organization was created that had the power and the budget to enforce environmental protections as we created for policing the activity of people who use some drugs. I say “some drugs” because it’s hard to ignore the hypocrisy of tobacco smoking, alcohol drinking DEA agents going after pot-smoking hippies, but I digress. 

The ’70s were a very optimistic time for marijuana reform advocates. Through lobbying efforts, NORML would succeed in decriminalizing cannabis in more than 11 states. California had its first initiative, Proposition 19, which made it to the ballot in 1972. The initiative would have legalized cannabis across the state, but unfortunately it failed to pass. What came out of the ashes of that effort was Jack Herer, who was inspired by the possibility of passing an initiative to legalize cannabis for all of its uses, so he formed an organization he called HEMP, which stood for “Help End Marhuana Prohibition.” 

Up until Jack came along, the movement to legalize cannabis was mostly based around personal liberty—Keith Stroup and NORML knew nothing about the history of cannabis hemp and did not really look into it. Jack, on the other hand, immersed himself into the history of the plant and its many uses prior to prohibition, which became his reasoning for legalizing it. Jack realized that not only was cannabis once used for food, fuel, fiber, ropes, sails, and medicine, he also realized that it was the safest, cleanest, strongest, softest source for practically everything humans used prior to the government making hemp illegal. 

Jack took all of this information that he had collected and put it into a book he titled: The Emperor Wears No Clothes. The title was a play on The Emperor’s New Clothes, which was a fairytale about an emperor being hustled by people selling him cloth that only the noble could see and when the emperor walked out in front of the people, a little boy looked up and asked why the emperor didn’t have on any clothing. Jack felt that, just like the fairytale, cannabis was enshroud in lies that only the noble could see, hence, The Emperor Wears No Clothes. 

 

Jack’s book became an underground success. Released in the ’80s during the Reagan administration and the ramping up of the War on Drugs, Jack’s book became the driving force behind a new movement to legalize cannabis for not just its alluring smoke, but also for its environmental uses and its ability to reverse global warming through large-scale cultivation for its fiber and cellulose.


In the ’70s and the ’80s, both cancer and AIDS were affecting millions of Americans. More and more people were going through chemotherapy and taking AIDS-related medications, and were realizing that cannabis would help them with their nausea and would increase their appetite. Because of this personal realization happening to so many people and their loved ones, people started using cannabis as an underground medication. 

In 1979, I personally started using cannabis while going through chemotherapy at the age of 9 under the supervision of my mother, who was a young hippie with a sick child. She had read in a 1978 issue of Good Housekeeping that people were using marijuana during chemotherapy, so she decided to try it with me and I believe it saved my life. 

During the ’80s, the AIDS epidemic was ravishing the gay community and more and more patients were using cannabis for appetite stimulation and to help with the nausea caused by the HIV/AIDS medications. Because of how much cannabis helped people when they were sick, it naturally created a very loyal group of people dedicated to disseminating the information that cannabis helped them and with that, the medical marijuana movement was born. 

Starting in the early ’90s, a Vietnam vet named Dennis Peron shaped history by opening the first Cannabis Buyers Club for people within the gay, HIV/AIDS-positive, and cancer community so that they could get the cannabis that they needed in order to help them preserve their life.

After several failed attempts to persuade California legislators to legalize or even take medical cannabis seriously, Dennis decided to write his own initiative and try to get the voters to back medical cannabis. What became known as Proposition 215 was a loosely worded law that did not legalize anything.

Once passed, it became California Health and Safety Code 11362.5, which created a person’s right to present a medical necessity defense after they were arrested for cultivating and/ or possessing cannabis. 

While 215 had good intentions, the authors of the law did not take into account the Controlled Substances Act, and because they overlooked the way federal law works, they did not write into Prop. 215 any actual legalization, which would have created a positive conflict between the state of California and the federal government, a conflict that is covered by Section 903 of the Controlled Substances Act which states: 

Title 21 United States Code (USC) Controlled Substances Act 
SUBCHAPTER I — CONTROL AND ENFORCEMENT 
Part F — General Provisions §903. Application of State law 

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together. 

That paragraph is the only reason why the federal government is not going into every single state that has actually legalized cannabis and prosecuting the people around implementing the state law. Back in 1995 when I was one of the people helping craft what became Prop. 215, I did not know anything about §903, neither did Jack Herer or Dennis Peron and sadly, that oversight or lack of understanding ended up causing a lot of people, myself included, to go to federal prison for trying to abide by the newly-passed state law. 

My hard lesson in legalization came from being one of the first people arrested in 1997, just nine months after the passage of Prop. 215, for the cultivation of medical cannabis at my home in Los Angeles. I would end up spending 1997 through 2000 fighting the federal government in court. I would then spend from 2000 till 2004 in federal prison and then from 2004 until 2006 on probation, all for cultivating cannabis and all because we did not write the law correctly. Sadly, I would just be one of many people prosecuted by the federal government during the twenty years of Prop. 215. 

During this time of quasi-legalization, some people had it really good: The people who were related to cops or had friends in the department or were willing to cooperate against their neighbors got a free pass. Meanwhile, those who would not cooperate in the War on Drugs were prosecuted to the fullest extent of the law. 

Marijuana laws have always been used as a weapon against people of color and really anybody else the cops wanted to use the laws against. Marijuana prohibition was like an invisible billy-club that they could beat you with or used to infringe your rights with by simply stating they smelled marijuana, which gave them probable cause to search and detain whoever they wanted. 

Under decriminalization all aspects of the cannabis industry, cultivation, trimming, packaging, transportation, distribution, large and small sales, are all still very much illegal. The only person who truly benefits from a decriminalization scenario is the end user who maybe gets off with a warning by the cop who chooses to hassle them or let them go. 

But all that’s different under true legalization. Under legalization production is regulated and taxed, the people who work in the industry are not criminals. Transportation, packaging, testing is not only legal, it’s transparent. Only under a legalized system can the end user get clean regulated and tested cannabis. 

In 2016 California passed Proposition 64, which actually legalized cannabis cultivation, distribution, and retail sales. It created the positive conflict mentioned earlier in §903 of the CSA that caused the federal government to back off and allow California and every other state that has actually legalized cannabis to implement a new chapter in cannabis acceptance and patient availability. 

Legalization allows home cultivation, large-scale production, hash making, retail sales, retail stores, delivery services, consumption lounges, product testing, and accountability by the people producing your cannabis, so that when you pick up an eighth of your favorite weed, it’s not covered in pesticides and it doesn’t have mold in the middle. 

Legalization also makes it easier to be a parent. During the dark years of 215 in California, many parents were separated from their children because they were legitimate medical cannabis patients, but because they got caught growing cannabis, Child Protective Services took their children away and made them submit to drug testing to prove that they were no longer using cannabis in order to get their children back. 

With legalization, parents have actual rights and there is very little difference between a mother who is drinking wine on the weekend and a mother who is smoking a doobie rather than getting drunk. For the reason of keeping families together, legalization should be the only thing that we are fighting for. 

The right to grow your own should be a fundamental right of human existence and I do not believe that you should have to produce a doctor’s recommendation in order to do so. Here in California, every adult has the right to grow a limited amount of cannabis. If you are a medical patient, you can grow as much as you reasonably need. If your state is working on legalization, you should be very vocal about the right to cultivate at home and make sure that protections are written into new legislation that protects the right to home grow. 

As I write this, it seems rather ridiculous to have to make an argument to be allowed to grow flowers considering the science surrounding the subject. When I first became an activist and started working with Jack Herer back in the early ’90s, we truly believed that the truth would set us free. We also thought that the information about the history and the usefulness of cannabis through the ages would be enough to cause any clear thinking person to realize that prohibiting the cannabis plant was one of the stupidest things society has ever done. 

Although written almost 120 years ago, an excerpt from J.M Campbell’s Note on the Religion of Hemp in the Indian Hemp Drugs Commission Report, 1893-94 still rings true: 

“To forbid or even seriously to restrict the use of so holy and gracious an herb as hemp would cause widespread suffering and annoyance and to large bands of worshiped ascetics, deep-seated anger. It would rob the people of a solace in discomfort, of a cure in sickness, of a guardian whose gracious protection saves them from the attacks of evil influences... So grand a result, so tiny a sin!”

 

 

As published in:
Grow Magazine, Vol.6 Issue 2
June 2021