Mellowing Out on Marijuana

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Chris Jackson / Getty

A woman smokes marijuana.

Those Rocky Mountains are getting higher. Two municipalities — Denver, Colorado, and the small town of Hailey, Idaho — passed pro-marijuana measures on election day this week, joining a growing number of liberal localities that are reducing or removing penalties on using pot. It's part of a slowly evolving populist rehabilitation of the drug. San Francisco, Oakland and Santa Monica in California, along with Missoula, Montana, and Seattle, Washington, have previously passed laws that give the lowest priority to enforcing existing marijuana laws.

Federal regulations, which supersede local ordinances, continue to prescribe heavy penalties — even in some cases death — for major dealers of illegal drugs, including marijuana. The federal penalty for possession of even a minuscule amount is a misdemeanor punishable by one year in prison and $1,000. Penalties are higher for cultivation, sale and crossing state lines. However, magistrates generally use state and local laws as sentencing guidelines — unless there is federal intervention, which doesn't occur in every drug case because they would increase court time and costs.

Not every attempt at liberalizing the laws has been successful. Last year, the pro-marijuana lobby tried to pass legalization laws in Nevada and Colorado; both failed. But this week's results in Denver heartened pro-pot activists: 57% of voters in the city approved "lowest law enforcement priority." Coming after a 2005 vote removing all penalties for possessing small amounts, Denver joins Alaska to become only the second place in the U.S. offering a free ride to users caught with less than an ounce. Denver's local and political culture has been amenable to such legal reorientations. Last summer, Denver Mayor John Hickenlooper and four of the 13-member city council told a local newspaper they had smoked pot in the past, while another six councilmen refused to answer and only three said no.

The Denver measure was pushed by a single activist: Mason Tvert, who organized SAFER, Safer Alternative For Enjoyable Recreation, on the University of Colorado and Colorado State University campuses, and now runs it from his Denver home. He was funded in part by the Marijuana Policy Project, which received $3 million this year from Peter Lewis, the heir of the Progressive Insurance Companies, who helps fellow billionaire George Soros support liberal causes.

More remarkable is Tvert's counterpart in Idaho, Ryan Davidson of Boise. Davidson operated without any MPP money after failing to get measures on the ballot in 2004 in a number of Idaho cities. This past year, he got it on Hailey's ballot after winning a ruling in federal district court that overturned Hailey's law preventing nonresidents from circulating petitions. "This was the least funded campaign in history," he says. "I spent maybe 20 bucks. I got the signatures on the petitions on my own dime. I spread the word through e-mail and phone calls and posting on blogs, I printed some fliers off my computer, photocopied them at Kinko's and put them under car windshield wipers on Monday."

Jim Spinelli, executive director of Hailey's Chamber of Commerce, insists there is no grassroots pro-pot movement and expressed surprise that three of four pro-pot measures passed: legalizing medical marijuana and decriminalizing both marijuana itself and industrial hemp. (The only measure that failed asked for a straight-out legalization of marijuana.) A town of 8,500, Hailey is 12 miles from the Sun Valley ski area. When Spinelli worked Tuesday's election, he says he saw a lot of older affluent voters and young people from the service sector. In Idaho, being under the influence of pot in public draws a six-month sentence and $1,000 fine. At least in Hailey, if the local police — as opposed to the state police — handle an arrest, local ordinance will be applied.

In 38 states, incarceration still awaits even first-time offenders possessing small amounts of marijuana. In Connecticut, possessing a "usable amount" is punishable by a year in jail and $1,000 fine. Nevada sends its pot users — possessing any amount — into rehab or treatment and imposes a $600 fee. Federal law calls for a year in jail and $1,000 for anyone caught with any amount. The National Organization for the Reform of Marijuana Laws (NORML) says there are 65,000-85,000 people incarcerated in this country for cannabis-related reasons.

But NORML spokesman Allen St. Pierre points out that the law is growing increasingly lenient in many other places. In Alaska, there's no jail or fine for holders of an ounce or less in their homes. In Nebraska, possession of less than an ounce is simply a civil citation. In Ohio, no criminal record is kept of a minor misdemeanor, that is, possession of less than 100 grams. Since the 1970s, the home-rule cities of Ann Arbor and Madison — who are allowed by their states to let city regulations supersede state laws for the most part — have simply imposed $25 fines for possession. St. Pierre says NORML and related organizations expect 2008 to be "much busier" for pro-pot activism and referendums. And even though federal law is the final word, St. Pierre says that when campuses, municipalities, counties and states vote, politicians listen. "It speaks to the mores and values of those administering justice. As Tip O'Neill said, 'All politics are local.'"