5 years post legalization: Over-Regulation Threatens the Viability of Small Cannabis Farmers.

by Crystal Oliver, President, Co-Founder, Washington’s Finest Cannabis; Executive Board Member, Cannabis Farmers Council; Executive Assistant, Washington State Affiliate for NORML (National Organization for the Reform of Marijuana Laws)

[reprinted with permission from the author, from November 5, 2017 — DC]

Five years ago when my husband and I attended the New Approach Washington Initiative 502 election night celebration we had no idea that we would be spending the next few years engaging with so many different regulatory agencies, we were still undecided about whether or not we would enter the market.

I remember the hearing the WSLCB held in Spokane, there were several hundred in attendance. My husband, Kevin Oliver‘s testimony recommended the board adopt regulations that allowed small businesses to thrive and also encouraged the board to allow those with past drug convictions an opportunity to participate in the newly legal market.

When the WSLCB released their first set of draft regulations I pored over the hundreds of pages. The board had indeed put together regulations that included provisions to protect small business including caps on the number of retail stores and farms a person could own as well as caps on the size of individual and state canopy. We ran some projections and decided that we were in a position to start our business and take our advocacy to the next level. We were confident that we could support implementation and demonstrate that legalization was preferable to prohibition.

Just two months after our initial screening interview with the WSLCB, after we had submitted hundreds of pages of documents including our banking records & fingerprints (which we had taken at the public safety building by an active law enforcement officer). Our local county commissioners adopted an emergency zoning ordinance that rendered 97% of our parcel unusable for growing or processing marijuana. This would be our first introduction to the world of land use policy and the Washington State Rule Making process.

We were eventually successful in organizing and mobilizing the local would-be legal marijuana farmers to oppose the ordinance and a new less restrictive ordinance was adopted and we along with our fellow farmers were able to move forward.

Next came a proposal from the Washington Association of Building Officials (WABO) to modify the state building code to add Marijuana growing and processing to the list of “moderate factory industrial uses” which would have triggered F1 building code requirements for all structures where cannabis was grown. Fire flow requirements alone would have devastated rural cannabis farmers throughout the state. Again, we organized and mobilized the farmers and saw the proposed rule modified and marijuana growing was stricken from the rule proposal. I would later serve on the Cannabis TAG for the SBCC as they clarified and modified the fire code for marijuana extraction.

Meanwhile, the WSLCB continued to adopt emergency rule after emergency rule. There were months where multiple rule changes were adopted impacting our businesses processes, too many to list here. A couple over-reaching proposals that come to mind were the WSLCB proposed rule to add destruction of inventory as a mandatory penalty for farmers violating minor regulations and the proposed requirement of commercial grade fencing. In both these instances we had to organize and mobilize and push back and we won.

There have also been battles with the legislature including preventing cannabis farmers from taking agricultural tax exemptions, allowing out of state financing and increasing our license fees which the farmers have lost.

Recently the WSLCB awarded the traceability contract to Franwell, aka METRC, an RFID company, and we mobilized farmers to oppose the requirement of these expensive, single use hard plastic tags for tracking or security. The WSLCB agreed that the vendor could not require this and then METRC pulled out of the contract.

Now our farm is facing increased fees from the county and the local clean air agency. The Clean Air Agency hearing is actually the day after the 5 year anniversary of when legal pot went into effect in Washington.

It’s too bad the farmers can’t celebrate; instead they’re fighting government overreach. It’s no wonder there is so much income inequality in the US when various government agencies are always trying to take a piece of the revenue from small business owners while offering tax breaks and other incentives to large businesses.

I am proud of the work that we’ve done as a group but I fear for the future viability of small, family run cannabis farms in this state. Over-regulation and over-taxation is strangling them.

Former Deputy Director of WSLCB : Home Grow is a Small Step

watch

by Dominic Corva, Executive Director

Yesterday, the WSLCB invited public comment hearing in Olympia to receive testimony on whether the state should allow regulated (not civil liberty) home grow in the State of Washington. There were two kinds of testimony presented that I have not previously identified in my recent writing on the subject: the mobilization of the financial industry against democracy, and the “big picture” stakes of home grow as a step towards making peace with the plant, which several speakers mobilized but none so movingly as the former Deputy Director of the WSLCB, Randy Simmons.

Banking against democracy

The first, chronologically, was testimony by representatives of the I-502 banking industry. Salal Credit Union and Numerica Credit Union — representing the west and east sides of the State, respectively — both testified against home grow of any kind, suggesting that both institutions would withdraw their services from I-502 if the State went for home grow, because they considered Federal intervention on the basis of the Cole Memo to endanger their ability to do business. Given that 7 other States and the nation’s capital aren’t being threatened for having home grow, this argument seems either ill-informed or nakedly political.

In any case, it represents the first time I have seen a threat of extortion by the private sector against even the consideration of what might be in the public interest. It gives opponents of home grow in this State another political reason not to fairly consider whether prohibiting home grow is optimal as a social policy. Other States would do well to heed this development going forward: if banking opens up, which is necessary and desirable for legal cannabis markets, banking is going to favor the continuity of prohibition, which is unnecessary and undesirable for ending the drug war.

Home Grow as Free from Regulation as Possible is a Small Step towards Normalization of the Plant

Former Deputy Director Simmons’s testimony can be found at 1:01 of the archived video. It was remarkable to hear from someone who played such a positive role early in the I 502 implementation process, as the Board’s Deputy Director. More remarkable, to me, was the way he described the issue at hand as being about far more than home grow. I present his testimony transcribed below.

“Good morning Madam Chair, Members of the Board, my name is Randy Simmons. I am the former director of the Liquor and Cannabis Board, and I was the implementation manager of I-502. I know you’ll hear a lot of different opinions today and I want to let you know I respect all those opinions and am aware of the difficulty you have to make.

I’d like to present to you that I am in support of home grows as free of regulation as possible.

It’s been a long road I’ve been on since I left here. I watched as some of the best doctors in the world filled my wife with poison intended to kill cancer. I watched as she went through multiple surgeries, and then was burned to kill whatever was left. And that was done by what is probably doctors at the cancer center in the world. At the same time I watched this cancer research in London and Madrid and Paris find ways to slow this breast cancer disease in women, and we do nothing here. We need our universities and our scientists and frankly our pharmaceutical companies involved in this research, and we can’t do that unless this is removed from the Schedule I substance.

And I have no illusion that allowing home grows in Washington is going to remove this as a Schedule I substance.

But I do see it as one small step in the normalization of this plant that has beneficial medical treatment for people, so that one day the research finds not just the cannabinoid profile that slows the growth of cancer but can actually cure it. I never want to watch my grandchildren — my granddaughters — to have to deal with being told they have to deal with an aggressive Stage 3 cancer, and in order to give you the best chance to live, we have to poison you, mutilate your body, and burn [inaudible] …

All journeys begin with a small step, and I think allowing this normalization of home grows is a small step. Thank you.”

Analysis: Home Grow as a Small Step

Mr. Simmons’ testimony addressed home grow as a step towards “normalizing” the plant, a process of cultural change necessary for vital “big steps” to happen. He specifically refers to cancer research, which in his analysis (with which I agree) is being blocked by far more than legislative or Federal (in)action. He identifies the source of those blocks as cultural — we can’t get to the Big Steps of cancer research in this country until people understand cannabis as a plant, rather than an immanent threat to society which must be controlled.

It’s not enough to change laws. The work to be done is cultural, and what legal change can do is either open up avenues for cultural change or block them.

The refusal of a nominally rebellious State against Federal policy that dehumanizes its citizens (on immigration, on LGBTQ rights, on climate change, and so forth) to take “small steps” against the dehumanization of its citizens that want to grow a plant blocks broader cultural change towards peace instead of war, research instead of no research, banking instead of no banking, participation instead of bans or moratoria, parenting instead of policed parenting, and yes, in my opinion, consumer participation in a regulated market instead of what we have today, declining levels of participation int he regulated market.

The “small step” of home grow would signal a cultural change towards accommodation of the regulated system, and would actually increase banking profits, producer profits, retail profits, and sustainable taxation revenues. I argue here that the political forces using empirically unsupportable arguments like the fear of federal intervention are shooting themselves in the foot, because they do not understand the long term benefits of broad cultural acceptance of the plant upon which their industry is based.

The normalization of cannabis as a plant rather than a threat to society is the endgame, and I sure wish that politicians, industry, and banking understood how much it would be in their best interest to facilitate that, instead of contributing counterproductively and short-sightedly to the politics of fear.

 

Three Questions for the Reform Conference

by Dominic Corva, Executive Director

This year, the International Drug Policy Reform Conference (Reform) will be taking place next week in Atlanta, Georgia. This post lets our readers know about CASP’s presence at the Conference and what I will be doing there, as a participant in a panel titled “How has the Drug War Reshaped Space, Place, and Relationships?”

There are three kinds of public events CASP gets invited to speak at. Industry events provide a platform for addressing cannabis policy and markets in a way that reflects our commitment to optimizing cannabis legalization as a strategy for ending the drug war. Academic events provide a platform for reflecting on and improving the models of the world I work with and encounter. And Policy events provide me with a platform for direct intervention into ongoing discussions of policy formation.

The Reform conference is a bit of a hybrid between Academic and Policy events. It’s an international NGO (nongovernmental organization) production, hosted by the Drug Policy Alliance and the ACLU, which often partners with the DPA on domestic efforts. You can see from the title of the panel how academic the conversation is to be on my panel, which could be the title of a panel at the annual Association of American Geographers (AAG) Conference I presented at for most of my academic life.

As a result, it’s probably the sort of panel that I feel most comfortable in. I’m not industry, and in Policy conferences where bureaucrats and policymakers dominate I’m usually the most radical voice in the room, since my central concern is ending the drug war rather than doing politics. Or bureaucracy.

This panel is especially cool because it’s a conversation, rather than a group of individual presentations. The moderator for the panel recently reached out to prepare for the conversation by posing three or four questions with which we would like to engage. I offer the questions I sent back, and the reasons for doing so, here:

What is the relationship between legalizing cannabis in certain places and ending the drug war — in those places but more broadly?
This question places CASP’s mission into the context of an international drug policy framework. Cannabis legalization to this point has until recently been “sold” –and funded — on the assumption that cannabis legalization is an important step towards ending the drug war. These days, it seems that it’s now being sold as an engine for economic growth and associated tax revenue. As a result, the policies being called for, designed and implemented don’t seem to be all that interested in removing criminal penalties altogether for cannabis-related activity. On the other hand, there is no doubt that significant room for exception to criminal penalties is opening up, especially from the perspective of say, the Philippines, where drug war crimes and outright genocidal State policy continue with the support and funding of the U.S. government. There also doesn’t seem to be much carry-over from ending the war on cannabis to ending the war on drugs, full stop. Is cannabis being carved out as a militant particularism, an exception that allows the drug war to continue unopposed? If it is, and key voices and actors in the U.S. are “co-opted” by letting them have theirs, does cannabis legalization mean the continuation of the drug war? These are difficult questions, but they must be considered given the evidence so far.
What is the relationship between (neo)liberalizing space and demobilizing the drug war?
This is a question that has to do with the relationship between economic governance and prohibition. My interest in the relationship between the drug war and economic liberalization was sparked by trying to puzzle through the tension between the promotion of liberty, via “free market” governance, and the promotion of authoritarian control on certain populations, during the latest period of pretty intense economic globalization (since the 1970s). Whose liberty matters, politically, under conditions of intense economic inequality that is supposedly being remediated by neoliberal market governance? The hollowing out of State (this term refers approximately to governments at large, not just to Federal States) revenues under conditions of privatization absolutely blew up during the financial crisis of the last decade. U.S. federal States like Washington want and need cannabis tax revenue to replace budget shortfalls that used to be covered by income taxes and Federal transfers. As a result, policy discourse about cannabis legalization explicitly condone the punishment of informal sector markets and actors to protect State-designated monopolies. That’s how we lost medical cannabis in Washington State.
How are processes of creative destruction associated with drug war zones?

“Creative destruction” is a political economy term I learned about from studying Karl Polanyi, the Austro-Hungarian economic historian. It means that there’s a cost to market formation — that previous market and social orders are destroyed to make way for new engines of growth. It’s usually associated with urban gentrification or crisis profiteering. Under conditions of prohibition, the whole world is a drug war zone, as anthropologist Howard Campbell observes, but some spots are hotter than others: borders, inner cities and so forth. This is a broader question for which cannabis legalization provides some insight, particularly with respect to who can own the means of cannabis production in highly controlled markets with high barriers to entry. Headlines splash how many jobs are created by such markets, but what goes unsaid is to whom the gains accrue. The democratic aspect of informal cannabis markets was that everyone could be an owner or take a much better margin of the flows than they could as a $15/hour waged laborer. This spread the economic benefits of market development much wider than under conditions where you need half a million or a regulatory job to make much of a living. At the same time, however, there is a lot of truth to the claim that legal cannabis displaces the ability of highly organized crime to make much off of cannabis, any more. Cartel profits don’t accrue to the little people so much, and while I insist that cartel profits have been dwindling under conditions of medical cannabis (with a far more democratic and widely shared economy), I can’t ignore the truth that in general, we want to destroy the ability of those who use violence to manage risk to make anything.

So, that’s it. Those are my questions for the panel, and my preliminary thoughts about them. It will take place next week, Thursday, in Atlanta, Georgia. I am grateful to the Drug Policy Alliance for covering my flight and hotel room, for full disclosure.

How has the Drug War Reshaped Space, Place, and Relationships?

Thursday, October 12th4:30-6:00pm | Dogwood B Room, Floor M1

From prison towns to million dollar blocks (where more than a million dollars is spent to incarcerate men from one city block), drug policy is shaping what our communities and relationships look like. This session will explore: How has the drug war reshaped geography in the U.S.? What impact do these changes have on individuals and families? How does spatial shifts over time affect communities most impacted by the war on drugs? What are some current projects and solutions underway to address these shifts in geography?

The Cannabis Alliance Letter on Home Grow

by Dominic Corva, Social Science Research Director

I reprint here, with permission, the letter drafted by the only Washington State I 502 trade group whose membership is dedicated to ending the drug war as well as optimizing legal cannabis policy and markets. Full disclosure: CASP is a member of this trade group, as a drug policy scholar and expert rather than as a direct industry stakeholder, and I played a central role in the committee that drafted this letter. Alliance Executive Director Lara Kaminsky, the author of the letter, is a member of the CASP Board.

The Washington State Liquor and Cannabis Board PO Box 43080 Olympia, WA 98504 RE: Recreational Marijuana Home Grows Public Comment

The Cannabis Alliance

3233 S. Hanford St., Seattle, WA 98144

Email: info@thecannabisalliance.us

www.TheCannabisAlliance.us

October 2, 2017

Dear Board and Staff of the WSLCB, Please accept these comments as the official recommendation of The Cannabis Alliance, the state’s largest cannabis industry/advocacy group representing the largest number of licensed cannabis business owners in the state.

The Cannabis Alliance helped facilitate an internal committee of members and additional stakeholders to assist and advise us with our recommendation on recreational marijuana home grows. The board of The Alliance unanimously approved the recommendation of the committee and is submitting it here for the record. First, we would like to clearly outline the scope of work mandated by the legislation that was enacted in 2017. The legislation directs the WSLCB to “conduct a study of regulatory options for the legalization of marijuana plant possession and cultivation by recreational marijuana users.” (Emphasis added) The study must take into account the “Cole Memo,” issued by the United State Department of Justice in 2013, which outlines the federal government’s enforcement priorities in states where medical or recreational marijuana has been legalized or decriminalized.

After reviewing the directive it became clear which of the three options proposed by the WSLCB The Cannabis Alliance would support. To review the three options are:

Option 1: Tightly Regulated Recreational Marijuana Home Grows Option

2: Local Control (or regulation) of Recreational Marijuana Home Grows

Option 3. Recreational Home Grows are Prohibited (or the status quo)

The Cannabis Alliance is recommending Option #3, or the status quo. The reasons for us doing so are very important to communicate.

1. The home grow issue is a civil liberty issue. It is outside the purview of the LCB, as a regulatory agency, to license people to grow a plant on a limited scale in the privacy of their own home. The jurisdiction of the LCB is the regulation of  business practices of licensed entities engaged in commercial sales, not the regulation of private citizens.

2. There is no other situation that exists, in any state that allows home grow, for the home grow to be registered with or regulated by a state agency.

3. None of the other states have run afoul of the Cole memo. The Cole memo is not supposed to be used to write legislation rather it was written to protect states rights.

We need to be clear that The Cannabis Alliance is NOT opposing home grow; and we are certainly not “opposing” home grow because our businesses feel threatened by it. Rather, we fully support home grow as a civil liberties issue, of which there was no such option presented.

We appreciate the opportunity to comment and want to reiterate our strong desire to see adults granted the ability to grow in small quantities at home. As stated by Alison Holcomb “The primary motivation for putting I-502 on the ballot was to end the criminalization of cannabis use, growing, and provision, and begin moving us in a new, public health-focused direction. Prohibiting adults from cultivating their own cannabis for personal use is inconsistent with that overarching goal.”

We are committed to continued collaboration and are happy to answer any questions.

Sincerely, Lara Kaminsky Executive Director The Cannabis Alliance

Don’t let Fear of the Feds Block Civil Liberty Home Grow

by Dominic Corva, Social Science Research Director

My previous two posts addressed the barriers to change embodied in the Washington State Liquor Control Board’s regulated home grow feasibility study; and offered the comments of I 502 architect Alison Holcomb as material evidence that their language concerning the “spirit of I 502” is objectionable and must be removed before submitting to the legislature.

It’s important to remember as the public hearing approaches, that the WSLCB is asking for feedback on their regulated home grow options, not asking for public input on how to do home grow. Thus, how you respond is very important. There’s room to note that civil liberty home grow, which is what is normal in 7 other states and the nation’s capital, is the only way forward for home grow.

But it’s always important to push back against the arguments presented against home grow, in the feasibility study but also, the words being spoken by stakeholders against home grow to whom the WSLCB listens disproportionately, on account of the lobbying dollars and expertise.

The Feds are not coming after State-compliant legal cannabis businesses

I’ve said it before, at the beginning of the year when now-fired White House staffer Sean Spicer sparked a panic, and I’ll say it again — and you should say it to the LCB.

The Feds are not coming after State-compliant legal cannabis businesses

That’s right. Seven States and the District of Colombia have civil liberties home grow and The Feds are not coming after State-compliant legal cannabis businesses.

Don’t let Washington State’s industry lobbyists tell the Washington State Liquor and Cannabis Board that they will. Because they won’t, no matter what Jeff Sessions “quips” about (as Cole memo author James Cole characterized it very, very recently).

The most influential industry voice to the WSLCB is the Washington Cannabusiness Association, or WACA. Their spokesperson was quoted last week objecting to home grow, regulated or otherwise, on the fearful grounds that doing so might invite Federal intervention against Washington State’s legal market. I’ve covered this argument before, but see for yourself how WACA is using that argument in its response to the feasibility study:

“If you ask licensed pot growers and retail owners, many of them are opposed.

“Our members are very concerned about the possibility of loosening regulations to allow the general public to grow cannabis at home,” Aaron Pickus said.

Pickus is speaking for The Washington Cannabusiness Association [WACA], which represents about 70 marijuana companies. The groups says they are more worried about the feds than any financial impact to the industry.”

Unfortunately, WACA is not the only industry group that refuses to support home grow. Even industry groups with (some) leadership that insists on civil liberty home grow, like the Cannabis Farmer’s Council (CFC), has to follow the direction of its membership, consisting of producers who may view home grow as competition.

In fact, the Cannabis Alliance is the only industry group pushing civil liberty home grow to the WSLCB and the Legislature. I will be posting their letter to the WSLCB concerning home grow shortly.

 

LCB Home Grow Study: Option 3 the Status Quo

by Dominic Corva, Social Science Research Director

After further review, it’s very clear how to respond to the WSLCB regulated home grow options. I choose, if it matters, Option 3, the status quo. This post is about why, and to ask my readers to shape their feedback accordingly.

The WSLCB has delivered a perfectly reasonable set of options to the legislature’s mandate that they carry out a study on the feasibility of regulated home grow. They have been asked only to deliver options for a kind of home grow that is unlike any of the other 8 states and the nation’s capital, in that it would not apply to all adult citizens residing in the State. It would apply only to those who apply for it, as a privilege that could be taken away or prevented by the entity that manages those permits, whether it be local law enforcement or the WSLCB.

By contrast, all other State home grow laws allow for home grow as a right. For them, being an adult citizen means having the liberty to grow a few plants without having to ask for permission or be tracked or be subject to anything that would infringe on the right to privacy. Home grow in all the other states is a civil liberty.

The WSLCB is not an arm of the State concerned with the expansion or protection of civil liberties. It is an entity charged with creating, regulating, and policing legal cannabis businesses. Thus, the stakeholders they consult about home grow are businesses, not civil liberties watchdogs like the ACLU, which funded our State legalization initiative. I 502 was, and should always be, a civil liberties law that SECONDARILY creates a market from which the State can tap revenue.

The WSLCB is institutionally incapable of prioritizing the civil liberties of adult citizens assumed responsible. As a private police force, it can and does assume adult citizens are potential vectors of illegality, not stakeholders in a civil liberties experiment.

As a business regulator, it has no expertise or mandate to govern adult civil liberties. Its Board contains no representatives of any group that has either. Thus, the proper entity for considering and designing adult home grow as a civil liberty in the State of Washington is the Legislature.

The Legislature must consider more than just options for regulated home grow. They must carefully study the Cole Memo and understand how its parameters allow for adult home grow as a civil liberty.

The Cole Memo is a set of guidelines, not a blueprint for making law or policy. It is exclusively about the legal markets regulated by entities such as the WSLCB. The concern for diversion is exclusively about making sure each State’s regulated cannabis markets do not become mixed up with black market activity — diversion into, and out of, the regulated market, with clear emphasis on diversion to other states.

An adult homegrow provision in this State carves out a space that is simply out of the jurisdiction of the WSLCB. Adult home grow, as a civil liberty, would be unregulated, because adult home grow would not be part of the regulated system. No need to worry about policing diversion, because no one would be diverting from a regulated system. That’s how it works in 8 other States and the District of Columbia. It would literally be none of the WSLCB’s business.

We need our Legislature to listen to civil liberties experts, particularly those associated with the success of I 502 like the ACLU, Alison Holcomb, and even Rick Steves. Ask them what the spirit of I 502 is, whether adult use home grow like adult use possession, sharing, and consumption should be decriminalized.

The reason why the ACLU will respond quite differently from the WSLCB, or the industry stakeholders to whom they might listen, is because the ACLU has experts in the history and practice of illicit drug prohibition, and must include that expertise in any consideration of the matter at hand.

It would be much more helpful if the Legislature could consult a standing body of drug policy experts that have published on and studied racial disparities and punishment in the U.S. This is perhaps the fundamental thing missing from Washington State’s approach to legalizing cannabis: the ACLU is never consulted. By default, only the legal cannabis police are consulted, and they interpret their mandate broadly enough to consider the risk of adult home grow as an exceptional threat to Cole Memo compliance on the one hand; and the legal cannabis industry on the other.

There are many more arguments that can and will be made. But these are the fundamental ones.

I 502, and cannabis legalization at large, are about promoting civil liberties and reducing the scope of the punitive State, which in all cases increases racial disparity because of structural racism. Every other State subject to the Cole memo guidelines has created adult home grow as a civil liberty, and it is highly unlikely that following this path would invite Federal intervention. Finally, the expressed concerns about diversion in the Cole Memo are about policing the integration of organized crime into State-legal markets, and are not concerned at all with what happens on a vanishingly small scale in the privacy of adult homes.

So I urge all of my readers who are interested in providing feedback to the WSLCB on its home grow options to choose option 3, the status quo, because adult use home grow should be a civil liberties issue, not a regulated business issue. We thank them for doing what they were asked by the Legislature to do, and choose to focus instead on working for Legislative change, including the two existing civil liberties home grow bills still in process that will be taken up again in January.

 

 

WSLCB Home Grow Study Options Under Review

by Dr. Dominic Corva, Executive Director

Yesterday, the Washington State Liquor and Cannabis Board (“LCB”) announced the parameters of its legislatively-mandated study on the feasibility of home grow in Washington State. Although they will be taking public comment on the document, the LCB has defined two distinct options, neither of which may be acceptable to citizens who want what 8 other states and Washington D.C. have, the right to grow a limited number of plants in the privacy of their own home without having to register in some way. Let’s be clear — although they list three options, the third is “status quo” so really there are only two options on the table at the moment.

It comes down to LCB control over personal home grows, in which the LCB issues permits to applicants and tracks everything they do in the State traceability system; or local jurisdictional control over personal home grows, in which citizens register with and are regulated by local jurisdictions (cities and counties, presumably).

The first option would require that the LCB spend a great deal of money attempting to police who knows how many tiny operations across the state. This is something the underfunded agency definitely does not want to have to do, although if the legislature told them to they would probably try. It’s unlikely that the legislature will tell them to do something they are clearly not funded well enough to do.

The other option is more pragmatic — leave it to local jurisdictions to opt in our out; and local police to enforce or not. High upon the list of reasons the LCB lists not to do it is their impression that allowing home grow would run counter to the Cole Memo’s guidelines to prevent diversion and access by children. However, such a system would make home grow a privilege for citizens living in jurisdictions that would allow it. We could expect much of the State’s local municipalities to react in the same way they have for legal cannabis, banning or zoning home grows out of much of the State. In a sense we would be legislating State-local experiments within the Federal-State experiment.

Without going into too much detail, let’s identify the assumptions — the model of the world — underpinning the options the LCB is willing to consider.

  1. They are expanding the Cole Memo guidelines into policymaking guidelines, by defining the “diversion” injunction far more broadly that its original interpretation. In the original interpretation, the concern for diversion was read as strictly applying to the regulated markets in question. That is, States were charged with policing diversion out of regulated cannabis markets, not policing Federal prohibition writ large ie the segment of the black market that has nothing to do with the legal market. In so doing, the LCB is greatly expanding the scope of its policing mandate, effectively taking on the task of prohibition itself.
  2. I would point out that the legal market IS supposed to mitigate the black market, as they are clearly aware, but it is supposed to be doing so through civil rather than criminal governance. They are supposed to be creating a safe, highly accessible regulated market that consumers can choose over the black market. In my model of the world, I 502’s architect Alison Holcomb-advertised purpose was to help end the “failed” war on drugs and market creation was a nice collateral benefit, per City Attorney Pete Holmes’s words when Cannabis City inaugurated legal retail availability June 2015.
  3. This is a serious, serious tension between how the LCB understands its mandate and what the voters of Washington and anyone interested in ending the war on drugs want out of cannabis legalization. It is the assumption that makes reality-based policy impossible. If the LCB understands its mandate as prohibition-to-prop-up-legalization, then it will repeat all the mistakes of prohibition — namely, the impossible pursuit of perfect control that has wasted billions of taxpayer dollars and countless lives, in the name of protecting society from something it never needed to be protected from. Anyone who understands the history of drug control understands this. If the LCB does not understand the history of drug control, they have no business governing cannabis legalization.
  4. The necessity of a permit from the State not only creates a patchwork of local opt-ins and leave-outs. It also raises serious Federal constitutional questions around the right to privacy; and opens up the State to having to overturn Leary v. United States (1969), which successfully overturned the 1937 Marijuana Tax Stamp Act on the grounds of self-incrimination. That Supreme Court decision is why we are governed by a 1971 Public Health law, the Controlled Substances Act, instead of the original 1937 Prohibition law. If it’s not about medicine, it becomes about privacy. At that point I don’t see why a class action lawsuit on the grounds of that Supreme Court decision couldn’t overturn Washington’s legalization framework altogether, putting the LCB out of a job (again).
  5. The argument that home grow may increase access by children is an argument that requires the State to police parenting. Adult citizens with children should be assumed to be responsible, not irresponsible, and trusted to act in their children’s best interest. It’s way past high time to let parents raise their own children, in the privacy of their own homes, without assuming that poor parenting decisions should be regulated by a set of Federal guidelines that are interpreted so completely differently by every other State doing legalization.
  6. Washington State has been in open rebellion against unreasonable Federal policy for far more than just cannabis. Our Governor and our Attorney General have made hay out of resisting the Trump administration’s efforts to police immigration — one could say we are one of the leading States in that regard. Why should we be so cowardly in the face of Federal threats, especially when our legal cannabis system is more tightly controlled (and controllable) than every other State that has done it? This State insists on protecting its citizens and non-citizens from what it perceives as Federal overreach. We have room to rebel when it comes to legal cannabis, because we have the most tightly controlled system already (thanks to this LCB, already).
  7. Why is there a disconnect between the governor and AG’s general political attitude towards Federal overreach and its approach to cannabis policy? Unless some unprecedented flurry of citizen organization emerges, there’s no political capital to be gained by resisting Federal overreach with respect to cannabis policy. Governor Inslee and LCB chief Rick Garza are high school buddies. Inslee calls Garza “Ricky.” They are super-close, and it’s highly likely that Inslee basically doesn’t have any interest in contradicting his buddy over something that really doesn’t affect his political prospects.
  8. I want to stress that Rick Garza and the LCB aren’t acting out of evil intentions or even the desire for power, necessarily. The LCB was created to control post-prohibition alcohol markets. If it’s in their mandate, of course they see the need to fulfill that mandate. Rick Garza is also clearly on the other side of the culture wars — his attitudes towards cannabis are far more likely to reflect the American public at large’s assumptions about the dangers of cannabis, which didn’t change with legalization. Those dangers, as any rigorous student of drug policy history, reflected the politics of social control rather than any scientific or rational basis. In the 1930s it was about policing minorities and migrants. In the 1970s it was about policing minorities and the antiwar movement. Those laws are a monument to racism, not concern for the rights of free citizens, especially in the privacy of their own homes.

In the coming months there will be lots of reaction, and if history is any indication an utterly ineffective effort to steer us back towards reality-based policy. Prohibition fails to do anything but fund more policing and prop up black market prices, stimulating incentives to produce and putting production in the hands of elements that include, on the extreme spectrum, elements willing to use violence to manage risk. This is a historical fact.

Washington State has less to fear in terms of Federal intervention than any other State. This is a contemporary fact. Capitulating to the politics of fear is craven, not courageous, and certainly not progressive, which really is a Washington State brand of politics. That is a fact. We don’t deny climate change, we stand up for immigrant communities, we have same-sex marriage. Those are facts. It’s true that we we have a regressive State tax policy as well, so there are ways in which that brand isn’t terribly consistent.

The question is, how can the politics of home grow be granted the kind of consideration that climate change, immigration, and LGBTQ politics get. Why should the LCB buy into that frame? There are, at the moment, no effective organizing strategies that would allow them to do so. Let’s see what happens in the next three months. I really hope that we don’t repeat the track record of cannabis organizing in this state, which one of division and utter impotence.

 

 

Barriers to Understanding, Barriers to Change (Spanish translation)

Many thanks to our Colombian reader, Ramiro Borja, for providing this translation to us! The original article in English can be found here.

Translated by Ramiro E. Borja / Colectivo Nueva de Abril

Dominic Corva, Director de Investigación en Ciencia Social Center for Study of Cannabis and Social Policy

En la presentación de ayer conté cómo empecé a explorar los mercados de cannabis y la política pública, y cómo se configuran entre sí. Mis amigos académicos reconocerán esto como un “marco teórico” -una técnica consistente en construir un modelo de mundo para que podamos entenderlo e intervenir.

Es un modelo de “economía política”, lo que significa que el usuario de esta técnica -el analista- necesita considerar cómo es que nuestra manera de ganarnos la vida y gestionar recursos conforma y está conformada por el poder que circula dentro de la sociedad. Eso es muy distinto de los modelos de la ciencia económica que suponen que todo ocurre por eleccion racional y utilidad marginal, modelos que aprendí cuando recibí mi grado como profesional en Economía.

También son distintos de los modelos de mundo que tiene la ciencia política, los que suponen que el Estado tiene en mente los intereses de cada quién cuando hace leyes y políticas públicas, y que distingue con claridad la seguridad de sus ciudadanos de la de los enemigos de éstos.

Mi audiencia ya no es pesadamente académica. Pero es importante que usted entienda cómo es que mi modelo de mundo es la base de mi modelo de la cannabis en el mundo. Como la mayoría de las aproximaciones académicas, debo equilibrar qué tan significativas quiero que sean mis explicaciones con el rigor analítico, para que tengan un efecto en la manera en que la gente piensa y actúa en el mundo. Quiero escoger batallas que pueda ganar, en vez de simplemente tener la razón y sentirme bien por eso.

Esto es especialmente difícil cuando se trata de responder a las preocupaciones que tienen las personas que hacen las leyes y las políticas públicas. Sus modelos de mundo simplemente no reflejan las realidades de los mercados y las políticas del cannabis, que sí entiendo mediante mi modelo. Ontologías inconmensurables, de verdad. Ellos no entienden qué tanto ha durado esto, no entienden de dónde sale la compulsión de prohibir, o quién está siendo prohibido; lo más importante es que no aceptan un modelo que dice que nuestra sociedad ha estado en guerra contra sí misma, una guerra real en la que se han perdido millones de vidas ante el complejo industrial de la seguridad, que es claramente peligroso y anti-paz, lo que mi modelo del mundo muestra.

El problema no es lo que ellos saben, sino cómo lo saben. Su modelo de mundo mira a la guerra contra las drogas como una metáfora, no como una realidad. Su modelo de mundo piensa que la peligrosidad de las drogas prohibidas está dada históricamente, y proviene de decisiones racionales hechas de buena fe por los representantes de la voluntad pública. Su modelo de mundo piensa que solo necesitamos reducir el daño de las drogas, más que considerar la guerra de la sociedad contra sí misma, la que causa no solo los daños de las drogas (que sí existen, parte de un problema social más amplio llamado sobreconsumo), también causa de Cosas Malas que no tienen nada que ver con los daños de las drogas, como hacer de la guerra perpetua una condición de bienestar económico.

¿Será que el problema aquí es una falta total de consenso entre nuestros modelos del mundo? Piénselo: para que la guerra contra las drogas termine de verdad, por razones que reflejen la realidad más que la política, nuestros políticos y formadores de política pública tendrían que admitir que nuestras leyes prohibicionistas y nuestro sistema de justicia penal no corresponden a un modelo de mundo en que suponemos que vamos mejorando en todo -que la Modernidad está venciendo la Barbarie, siempre mejorando nuestra seguridad en vez de presentar a cada paso nuevos modos de destruirnos. Que somos herederos de la tradición de la Ilustración. Que nuestro instinto es apoyar a los que son vulnerables entre nosotros y que las personas que actúan de buena fe pueden apropiarse de éste. Que se conoce el Bien y el Mal y que nuestras instituciones son diseñadas y operadas para hacer que las cosas sean mejores y no peores.

La situación contemporánea de la legalización de la cannabis ilustra este concepto a su modo, y puesto que afecta un segmento tan pequeño de la población que sufre de muchas otras maneras el hecho de que la modernidad resulta una fábula, y no una historia, de progreso e Ilustración, parece que tenemos que dar un paso atrás para seguir avanzando. Los políticos y los intereses económicos, quienes no tienen compromiso alguno con evaluar seriamente qué es lo que ha salido mal y cómo arreglarlo, son los que se están apropiando de las propuestas de legalización de la cannabis que han tenido éxito y de su radicalidad.

En cada Estado esto se da distinto, pero hasta ahora la promesa de legalizar la marihuana como estrategia para acabar la guerra contra las drogas está siendo reemplazada por intereses políticos que todavía están obsesionados -sin fundamento científico- con supuestos daños de la cannabis. Intereses que piden reformar nuestras leyes y políticas públicas pretendiendo que la guerra contra las plantas -y contra las personas cuyas vidas han sido un largo acto de desobediencia civil y de autonomía frente a los destrozos de la guerra racial y clasista- sea más suave y amable.

Las propuestas de legalización estatal son absolutamente revolucionarias frente al orden político de este país, donde la Ley de Sustancias Controladas centraliza en la autoridad Federal la decisión de dónde y cuándo ejercer violentamente sus prerrogativas contra la población, pasando por encima de la autoridad del Estado y la libertad Local.

En cada caso, sin embargo, las legislaturas Estatales están reconfigurando la legitimidad de la prohibición más que haciendo la paz con una planta que ha sido, a lo largo de toda la historia humana, una de las sustancias terapéuticas más seguras para el hombre. Ya es claro que luego de una era de marihuana médica caracterizada por la desmovilización política, la era de la marihuana legal estará caracterizada por un creciente pánico moral frente a la producción y el consumo de cannabis que se colorean por fuera de las barreras tan restrictivas puestas por los marcos legales. Pregúntele qué sentido tiene esto a las comunidades Hmong del norte de California.

¿Qué hacer? ¿Qué batallas escoger? Depende de su modelo de mundo, no solamente de su modelo de lo grandiosa que es la cannabis para el recaudo público y las arcas empresariales. Esto último puede ser una estrategia productiva al momento de apelar a los políticos y las poblaciones dedicadas a mantener el orden económico y político vigente -la gente que piensa: ‘sí, hay cosas malas que están pasando pero no hay que cuestionar hasta el fondo nuestras suposiciones, sino mejorarlas y reformarlas’.

En mi modelo de mundo, esta aproximación alimenta un complejo industrial de la seguridad que está destruyendo a la mayoría de nosotros, para beneficio de unos pocos y de las carreras políticas de muchos. Y lo hace no porque haya gente Mala haciendo cosas Malas (aunque la hay), sino porque hay gente completamente normal que trata de ayudar. Pero como su modelo de mundo no puede acomodar la realidad histórica o presente -o solo una parte- entre más quieren ayudar, más van siendo reemplazados los guerreros culturales como motor de la prohibición por el capital.

Lo que estamos viendo acá, compañeras, es la continuidad de la prohibición más que su fin. El apremio por castigar y estigmatizar ciertas poblaciones se renueva y reempaca para reproducir el orden de cosas vigente. Un modelo de economía política honesto cuestiona este Problema Social.”

Barriers to Understanding, Barriers to Change

by Dominic Corva, Social Science Research Director

Yesterday I introduced a trailhead to exploring how cannabis markets and policy help shape each other. My academic friends should recognize this as a “theoretical framework” — a technique for building a model of the world so we can understand and intervene in it.

It’s a “political economy” model, which is to say that it requires the technique user — the analyst — to consider how power in society shapes and is shaped by how we mobilize resources and make livelihoods. It’s distinct especially from economic science models of the world that assume everything is happening because of rational choice and marginal utility, models I learned to get my undergraduate degree in Economics.

It’s also distinct from political science models of the world that assume that the State has everyone’s best interests in mind when they make law and policy, and that there is a clear distinction between the security of its citizens and the security of its citizen’s enemies.

My audience is not terribly academic, anymore. But it is important for you to understand how my model of the world informs my model of cannabis and the world. Like most academic approaches, I have to balance analytical rigor with just how much I want my explanations to mean something, to have an effect on how people think and act in the world. I want to pick battles I can win, rather than just be right and feel good about it.

This is especially difficult when it comes to addressing the concerns of people who make laws, who make policy. Their models of the world simply do not reflect the realities of cannabis markets and policy that I understand from mine. Incommensurable ontologies, really. They do not understand how long this has been going on, they do not understand where the compulsion to prohibit comes from, or who is being prohibited; most importantly they do not accept a model of society that says ours has been at war with itself, a real war with millions of lives lost to what is clearly a dangerous and anti-peace security-industrial complex, in my model of the world.

The problem is not with what they know, it’s how they know it. Their model of the world looks at the drug war as a metaphor, not a reality. Their model of the world thinks that the dangerousness of prohibited drugs is historically given, and comes from rational choices made by in good faith by representatives of the public will. Their model of the world thinks we only need to reduce the harm of drugs, rather than considering the harm of intrasocietal warfare as the cause not only of drug harms (which do exist, part of a larger social problem called overconsumption) but of Bad Things that have nothing to do with drug harms, like making perpetual war a condition for economic health.

Is it too much to say the problem here is a total lack of common ground in our models of the world? Think about it: to truly end the war on drugs, for the reasons that reflect reality rather than politics, our politicians and policymakers would have to admit that our prohibition laws and criminal justice policy don’t belong in a model of the world that assumes we are getting better all the time at everything — that Modernity is stamping out Barbarism, always making us safer rather than introducing new ways to destroy ourselves at every turn. That we are heirs to an Enlightenment tradition. That our instinct to help the vulnerable among us can be appropriated by good people acting in good faith. That Good and Evil have been worked out and that our institutions are designed an operated to make things better instead of worse.

The contemporary situation of cannabis legalization illustrates this concept in its own very specific way, and because it affects such a tiny segment of a population that is suffering from so many other ways in which the Modernity is a fable, rather than a story, of progress and Enlightenment, that it appears we must go backwards to go forward. The radical nature of successful cannabis legalization initiatives is being appropriated by politicians and economic interests who have no compulsion to seriously assess what has gone wrong and how to fix it.

It varies from state to state, but so far the promise of cannabis legalization as a strategy for ending the drug war is quickly replaced by political interests still obsessed with the scientifically baseless assumed harm of cannabis itself, that requires reforming our laws and policy to reflect a kinder, gentler war on plants and the people whose livelihoods have been one long act of civil disobedience, on the one hand; and autonomous from the ravages of the racial and class warfare on the other.

State legalization initiatives are absolutely revolutionary with respect this country’s political order, where the Controlled Substances Act centralizes Federal authority over State and Local freedom to decide when and where to exercise its prerogative on violence against its population.

In every case, though, State legislatures are reconfiguring the the legitimacy of prohibition rather than making peace with a plant that has been, in human history, one of the safest therapeutic substances known to man. It’s clear at this point that after a medical marijuana era defined by policy demobilization, the legal marijuana era will be defined by increased moral panic about cannabis production and consumption that colors outside the incredibly restrictive barriers to access put up by legal frameworks. Ask the Hmong communities of Northern California how this makes sense.

What to do, and what battles to pick? It depends on your model of the world, not just your model of how great cannabis is for public revenue and corporate coffers. The latter can be productive strategies for appealing to a politicians and populations invested in maintaining the current political and economic order — people who think yeah, some bad things are happening, but the assumptions we have don’t need to be fundamentally challenged, merely improved and reformed.

In my model of the world, this approach nurtures a security-industrial complex that is destroying most of us, for the profit of a few and the political careers of many. And it does so not because of Evil people doing Evil things (though there is that), but because of totally normal people trying to help. But because their model of the world can’t accommodate historical or present reality — or only partially accommodates reality — the more they help, the more money capital takes over from the culture warriors as what props up prohibition.

What we are looking at here, folks, is the continuity of prohibition instead of its end. The urge to punish and stigmatize certain populations gets rewired, retrofitted into the reproduction of the present order of things. An honest political economy model presents some challenge to this Social Problem.

 

 

Field Guide to Cannabis Markets and Policy: A Starting Point

by Dr. Dominic Corva, Social Science Research Director

How are cannabis markets and policy experiments changing society? The first thing to understand is that cannabis markets, like all markets, exist in relation to State policy. We understand State policy through the lens of prohibition: the total ban on some drugs and drug plants. Clearly, there’s a radical transformation going on that means we really need to understand how prohibition is being transformed — radically — by State “experiments in democracy” associated with the paradox of States choosing to opt out of Federal law without leaving the Union itself.

This assertion, or axiom, or assumption, depending on one’s point of view, contradicts a lot of what you read in the headlines. Isn’t legalization changing cannabis markets by creating regulations and licensing schemes at a rapid rate? The answer is yes, but not as fast as media advertisers would have you believe. There are three up-and-running State-supervised legal cannabis markets right now — Washington and Colorado, who were first; and Oregon, which chose to fast-track its market development by taxing first and regulating later.

In the grand scheme of things none of these states are particularly significant relative to California consumption and production, for example –or, I would argue, New York City, where cannabis delivery services have been effectively decriminalized for decades.

The first question to ask for this introduction is, what are cannabis markets and how have they changed over time? Let’s narrow down our field of inquiry by time and place, focusing narrowly on the United States and the last 40 years or so. But let’s also start with the present.

At the present, there exists three discretely identifiable categories of cannabis market: black markets, medical markets, and taxed adult-use markets. Let’s simplify by using a color spectrum: black, gray, and white. Please note this is a spectrum, with both with and black bleeding into gray and vice versa. Later on perhaps we will try to think three dimensionally by looking at how white and black markets are more integrated than you might think.

It’s important to note that these colors, as I deploy them here, reflect a stigma-free taxonomy. None of these are assumed to be morally superior to the other, in my analysis here or at any time. This is a sharp difference from the way most people talk about them. I’m not trying to convince anyone to desire or not desire one over each other — in fact I insist that given their interdependency, it is not useful to do so.

I also reject arguments that using a color spectrum for taxonomy is inherently racist, since to accept that argument would mean applying it to all sorts absurdity, like the meaning of “black boxes” or “black operations.” We can argue about that later if readers insist.

The next thing to understand is that state policy is also a (possibly circular) continuum, from extremely punitive to bureaucratically regulated. This way to think about it is indebted to sociologists Harry Levine and Craig Reinarman, who insist that we think about prohibition as a continuum that reflects State interests that generally have to do with controlling undesirable populations; or geopolitical arrangements; or many other things that have nothing to do with drugs.

Levine’s framework accomplishes two things especially useful for figuring out current dynamics in landscapes of cannabis policy reform and market transformation.

The first has to do with understanding State Policy as an outcome of complex politics, rather than rational review or reformist attempts to improve the governance of free societies. This insight, drawn from the history of prohibition, helps us understand how cannabis legalization remains subject to highly political dynamics, to the exclusion of rational policy consideration.

The second has to do with understanding punitive prohibition, usually in the form of authoritarian policing, carceral fundamentalism, and sentencing policies, as a form of regulation. That is, prohibition doesn’t succeed in prohibiting. Instead it creates landscapes of risk of exposure to enforcement that are capitalized on by illicit (and now licit) market actors. Plenty of people do get caught! But those that get caught simply territorialize, or make real in the landscape, the value of avoiding getting caught. At times of high intensity, where lots of people or product get caught, the resulting market scarcity raises prices which make not getting caught far more profitable. Punitive policing creates more high risk, high reward markets, reflected in the trajectory of commodity prices at different parts of the value chain.

This insight helps us understand how current efforts to govern cannabis legalization are being pulled in many different directions, because they drastically shift the landscape of policing by introducing a much more robust and extended “other side” of punitive prohibition, that is marked by State efforts to regulate a market that was already being regulated (through policing); and remains in a sort of schizophrenic, bipolar relationship with different scales of government trying to do different things, from local municipalities that ban or zone out legal policy to an overarching Federal framework for which legal cannabis remains eligible for punitive prohibition, even if it isn’t being acted on right now.

This gets us to the highly volatile and dynamic contemporary phenomenon of cannabis legalization and market evolution. Or phenomena, since the policy geography of policy change is highly decentralized, while the new market processes are also highly decentralizing, as a tendency, because they create new spaces for cannabis production, processing, and distribution that are highly circumscribed by state borders.

We have two “axes” of analysis, State Policy and markets, that shape each other dialectically rather than being independent variables. And we have several dimensions of each to grapple with, since State Policy combines regulation and punishment even in the context of legalization; and since black-gray-white markets co-exist in the same territories of policy formation. Now we can begin to unpack the material realities to answer the question “how are cannabis markets and policy changing society.”