Attacking Marijuana Patients Is Not A Good Legalization Strategy


Patients Against I-502

The Unraveling of Dominic Holden
By Lee Rosenberg
The New Approach Washington campaign turned in its signatures this week for Initiative 502. This initiative would legalize personal possession of up to one ounce of marijuana and regulate the distribution and sale of the drug to anyone over 21 [in Washington state]. It also introduces a per se DUI limit for “active” THC – in layman’s terms, the amount of “unprocessed” THC in your body.
Over at Slog, Dominic Holden continues to lash out at the folks in the medical marijuana community who oppose it – primarily due to the DUI provisions. I’ve been trying to stay out of this fight for my own sanity, but Holden’s anger is so misdirected (and misinformed), I have to speak up.

The heart of the issue is rather simple. For years, medical marijuana patients in this state have fought to keep from getting arrested for using a medicine that they and their doctors have found is very effective for them. Our medical marijuana law does not fully protect medical marijuana patients from arrest, it only provides for a defense in court. Over the years – despite the fact that the rules the police must follow haven’t changed (hint, hint) – the amount of arrests for medical marijuana have been going down as more and more law enforcement folks realize that patients will simply win in court.

Patients Against I-502

​With I-502, however, medical marijuana patients would end up with a new threat. Because they often use very high quantities of marijuana compared to recreational users, the effects of the drug from an impairment standpoint are minimal (people build up a tolerance to the psychoactive effects), yet they always have an overabundance of “active” THC in their bodies to trigger that DUI charge. As a result, medical marijuana patients and their advocates are organizing to fight I-502. Holden continues to blast these folks for their opposition, but their position is entirely rational. This initiative clearly puts them at greater risk of having to deal with the criminal justice system than the status quo.
And this situation was entirely by design. When New Approach Washington started their campaign, they pointed to poll numbers showing that including the DUI provision would cause 62% of voters to be more likely to vote for it, but only 11% less likely. The folks behind New Approach Washington came to a conscious decision to throw medical marijuana patients under the bus in order to have a better chance of passing something. To be upset that medical marijuana patients are now trying to fight it is absurd. Of course they’re fighting it.

Joe Mabel
Dominic Holden: Completely missing the point about the impact of DUIs on patients

​But even more obnoxious is how Holden is now trying to impugn the integrity of folks who are acting exactly the way you’d expect them to. He writes:
The folks trying to lock up pot smokers aren’t the prestigious public health professionals, professors, prosecutors, and defense attorneys who have banded together to submit what appears to be enough signatures to put the country’s most sweeping marijuana initiative on the Washington State ballot. No, the people holding a rally today in Olympia to oppose Initiative 502–which would legalize and regulate pot for all adults–are medical marijuana patients, attorneys who specialize in marijuana defense, and activists who want legalization with fewer regulatory controls. They complain that too many people would get busted for DUIs while driving with active (not inactive) THC in their system. Of course, maintaining the status quo isn’t a big deal for them if I-502 fails. A lot of them make money running pot dispensaries, and many lawyers make their living defending marijuana cases. The folks braying loudest against I-502 are also the same people (Douglas Hiatt, Jeffrey Steinborn, and Vivian McPeak) who ran previous initiative campaigns to legalize marijuana and failed to make the ballot. Maybe they’re feeling butthurt that someone else is doing a better job.
This is so absurd, I can’t believe he actually wrote this. Hiatt and Steinborn are the two main folks behind Sensible Washington, who’ve been trying to get their own legalization initiative on the ballot for the past two years (I did a lot of work with them earlier this year). That initiative was written to completely remove all state criminal penalties for marijuana. To say that those two are happy to maintain the status quo because they make a living defending marijuana cases is one of the craziest things ever written in The Stranger.
They’ve all done commendable work in the past, but now they are at the vanguard of a misguided campaign to lock up pot smokers. If they succeed in stopping I-502, perhaps there will be a handful more DUI arrests for pot under the imperfect initiative, because the science is admittedly unclear. But here’s one thing that is absolutely clear: Law enforcement in Washington will continue to arrest about 13,000 people for pot every year unless we pass I-502.
But that’s actually far from clear. Holden is leaving out a very important aspect of the argument that some I-502 foes have been making, in particular Jeffrey Steinborn. As he wrote on Slog last month, Steinborn believes that I-502 will do nothing to stop people from being arrested:

Initiative 502 is a law enforcement sting in plain sight. Read it before you support it. Although the mandatory DUI conviction at 5ng of active THC per milliliter of blood is troubling and possibly unconstitutional, the inevitable federal preemption of this initiative, along with its provisions requiring mandatory self-incrimination make it a dangerous illusion.
Steinborn isn’t arguing that some smaller number of DUI’s is worse than the number of people who get arrested every year. What he’s arguing is that – if I-502 passes – the federal government is going to step in, shut down all the parts of the initiative that establish a legal, regulated market and potentially leave us with both 13,000 arrests per year and bogus DUIs.
I have no idea if Steinborn is right. I’ve listened to a number of legal experts and there’s a wide range of opinions on what happens once a state fully legalizes marijuana and allows for it to be sold openly to adults. My own hunch is that private entities like drug testing firms and possibly the pharmaceutical industry may compel the Obama Administration to go after any state that tries. And the history of the Obama Administration has been one of corporate influence outweighing what the liberal base wants.
Yet Holden doesn’t explore whether or not Steinborn’s right, he just falsely claims he’s making a foolish tradeoff. This is lazy, hack journalism at its worst. But beyond that, he’s completely missing the point about the impact of DUIs. The problem isn’t just that the number of arrests will go up significantly (although I think that might happen too). The problem is that the people who get arrested and charged with DUI for marijuana will now find it far more difficult to prove their innocence in court. And as I alluded to earlier (hint, hint), law enforcement and prosecutors most certainly change the way they do things based upon whether or not they know they can get convictions.
At the beginning of their campaign, New Approach Washington looked at their polling on the DUI question and felt that this was the right approach. With 62% of voters saying a DUI provision would make them more likely to vote for legalization and 11% of voters saying the opposite, only 20% of that 62% would need to actually flip their vote to make the other 11% irrelevant. If that’s the case, and the supporters of I-502 think that’s realistic, they shouldn’t give a crap what medical marijuana patients are doing and saying. They’ll be outweighed by all those soccer moms who finally have an initiative that they can vote for.
It’s that point that makes me wonder why Holden is losing his shit. If he thinks that New Approach Washington miscalculated – and that the 11% can really swing this – he should be blasting the I-502 campaign for making that poor calculation. The opposition from medical marijuana patients and their longtime advocates was easily predictable and fully expected. What hasn’t been expected is the piss-poor level of journalism coming from a publication that has long been superb at pointing out the drug war hackery of others.
Editor’s note: This op-ed piece originally appeared at the Seattle-based political blog Horses Ass, which, by the way, is highly recommended reading.