Medicinal Marijuana

Colorado is a tightly-contested swing state. According to the Real Clear Politics average of recent polls, Republican challenger Mitt Romney holds a vanishingly narrow lead over President Obama of 47.9% to 47.7%. In a national election that appears to be growing tighter in the final weeks, Colorado could end up deciding who wins.

It is also a state where there are two reasons marijuana is at play as a political issue. Most significantly, it is the site of the Amendment 64 Regulate Marijuana Like Alcohol legalization campaign, which maintains a shrinking lead in recent polls, and which has generated reams of media coverage in recent weeks. But it is also one of the medical marijuana states that have seen their dispensary systems threatened by heavy-handed federal interventions, which has generated ill-feeling toward the Obama administration in some quarters.

And it is a state where Libertarian Party candidate Gary Johnson, the former Republican governor of neighboring New Mexico, is making a strong push, with marijuana legalization and marijuana policy as one of his strongest talking points. Johnson isn't included in those polls mentioned above, but when pollsters do bother to include him, as Public Policy Polling did last month and Politico did this month, he's bringing in about 5% of the vote -- and he takes three votes away from Obama for every two he takes from Romney. [Update: The latest PPP poll, released today, shows Johnson taking away slightly more from Romney than Obama.]

Democrats may have been hoping that turnout by supporters of marijuana legalization would help them cruise to victory in Colorado, but Johnson is doing his best to separate those voters from the Democrats who hope to own them. Johnson has been stumping feverishly on legalization, and his campaign has smartly used all the attention paid to the initiative to generate attention for his position and his candidacy.

Now, as David Sirota points out in an excellent analysis of pot and presidential politics in Colorado in Salon, things have escalated, with pro-Johnson robo-calls ads identified with the Utah-based libertarian think tank the Libertas Institute going out to Democratic voters with a message that should be chilling for Democrats:

"Hello, fellow Democrat," a friendly male voice says. "Like you I was thrilled to vote for Barack Obama in 2008. In 2008, candidate Obama promised not to use the Justice Department to prosecute medical marijuana in states where it was legal. But the real Obama did just that, more than doubling prosecutions, putting people in prisons and shutting down medical marijuana facilities in Colorado. That's not the change you wanted on health freedom. But you can still be a force for hope and change by voting for Gary Johnson."

Could Gary Johnson peel off enough voters disenchanted with the Obama administration's medical marijuana stance and motivated by a chance to vote for marijuana legalization to throw the state, and just possibly, the national election, to Romney? We will know in less than three weeks.

With less than three weeks to go until election day, there is a lot of activity on the state-level initiative front- -- but not everywhere. Some campaigns are staying mighty quiet, and that's a strategy that could work for them. Let's get to it:

On Monday, former DEA heads and drug czars reiterated their call for the Justice Department to attack marijuana legalization initiatives. The drug warriors are attempting to pressure Attorney General Eric Holder to take a public stand against the initiatives.

"Next month in Colorado, Oregon and Washington states, voters will vote on legalizing marijuana," Peter Bensinger, the moderater of the call and former administrator of the DEA during the Ford, Carter and Reagan administrations, began the call. "Federal law, the US Constitution and Supreme Court decisions say that this cannot be done because federal law preempts state law. And there is a bigger danger that touches every one of us -- legalizing marijuana threatens public health and safety. In states that have legalized medical marijuana, drug driving arrests, accidents, and drug overdose deaths have skyrocketed. Drug treatment admissions are up and the number of teens using this gateway drug is up dramatically."

That prompted a response from the Marijuana Policy Project: "These former officials are stuck in the mindset that we can arrest our way to decreased marijuana use," said Morgan Fox, the group's communications manager. "This policy has obviously failed and at great cost. We need to treat marijuana as a public health issue and stop wasting resources arresting adults for using something that is demonstrably safer than alcohol. Unfortunately, people like these former officials, who have made careers out of keeping marijuana illegal, are promoting federal interference against reform efforts. Individual states need to be free to experiment with polices that give control of the marijuana market to legitimate businesses instead of criminals and that do not include arrest or incarceration. The federal government should be encouraging states to explore alternatives to ineffective policies rather than expensively and uniformly pursuing continued failure."

Arkansas

On Monday, the Arkansas Pharmacists Association said it would oppose Issue 5, the Arkansas Medical Marijuana Act. The association said it opposed the measure because it does not incorporate pharmacists and would lead to conflicts with federal law. The pharmacists said they weren't taking a position on medical marijuana, only on the initiative. They said if Arkansas wants medical marijuana, it should pursue regulatory changes to get it rescheduled.

On Wednesday, the Arkansas Times endorsed Issue 5. The Little Rock alternative weekly said it has "misgivings" about legalizing medical marijuana given federal opposition, but said it was always a safe bet to line up opposite the "hateful" Arkansas Family Council, which opposes it.

California

See our feature story on the Three Strikes sentencing reform initiative, Proposition 36, this week here.

Colorado

Last Friday, musician Melissa Etheridge endorsed Amendment 64, the state's legalization initiative. She appears on a new radio ad and talks about her personal experience with marijuana, first as a cancer patient, and then as a legalization advocate.

On Sunday, a new poll had Amendment 64 still winning, but with a shrinking margin. The initiative was ahead 48% to 43%, but was seeing declines in support among women, people with a college degree, and some other demographics. A poll a week earlier had Amendment 64 at 50% with a 10-point lead.

On Monday, the United Food and Commercial Workers endorsed Amendment 64, saying it would create jobs and bolster the state and local economies. UFCW Local 7, which represents 25,000 workers in Colorado and Wyoming is the state's largest union. "Amendment 64 will foster economic growth and enhance public safety for our members across Colorado," said UFCW Local 7 president Kim Cordova. "Removing marijuana from the underground market and regulating it similarly to alcohol will create living-wage jobs and bolster our state and local economies with tens of millions of dollars in new tax revenue and savings. By taking marijuana off the streets and putting it in retail stores, we can stop steering money toward gangs and drug cartels, and start directing it toward legitimate, job-producing Colorado businesses."

On Tuesday, two dozen state clergy and faith leaders endorsed Amendment 64. "How we punish people and what we punish them for are central moral questions," said the Rev. Bill Kurton. "If a punishment policy fails to meet its objectives and causes harms to humans, I believe we have a moral obligation to support change. Our laws punishing marijuana use have caused more harm than good to our society and that is why I am supporting replacing marijuana prohibition with a system of strict regulation with sensible safeguards."

Massachusetts

The buttoned-down Question 3 campaign is keeping mighty quiet as its medical marijuana initiative maintains a comfortable lead in polls.

Montana

The I-124 campaign, which seeks a "no" vote to repeal the legislature's gutting last year of the state's voter-approved medical marijuana law, is also staying quiet.

Oregon

Last Friday, Clear Channel Communications agreed to take down a series of billboards put up by groups tied to the Florida-based Drug Free America Foundation, operated by long-time drug warriors Mel and Betty Sembler. The communications giant acted after online protests by Women for Measure 80, the state's legalization initiative. The billboards featured a photograph of a young woman who appeared strung out on crack or meth, not marijuana. "The ads protesting marijuana are being removed because our policy is transparency of advertising campaigns and the advertisers who are sponsoring them," said a Clear Channel spokesman. "These ads include a misleading website that we believe needed to honestly represent the advertiser so the ads are being removed."

On Monday, Measure 80 supporters rallied at the state capitol. Several dozen showed up to show their support.

Washington

Last Thursday, researchers reported that there had been 240,000 marijuana possession arrests in the state in the past 25 years. Police made more than half of those marijuana arrests in just the last 10 years. Nearly four out of five arrested were under age 35, and ethnic minorities were arrested at rates disproportionate to their makeup of the population. The report was prepared by the Marijuana Arrest Research Project, which has produced studies of marijuana possession arrests in New York, California, and major US cities.

Last Friday, I-502 proponent Rick Steves was heckled at the state capitol rotunda by about 20 noisy protestors, including medical marijuana advocates who bitterly oppose the initiative. Four or five of the protestors were escorted out of the building by state police, and Rep. Sam Hunt, an I-502 supporter, got into a scuffle with one of the opponents.

The medical marijuana defense group Americans for Safe Access (ASA) and a number of individual plaintiffs took their case for the rescheduling of marijuana to the District of Columbia Court of Appeals Tuesday. In oral arguments there, they urged the court to order the Drug Enforcement Agency (DEA) to reverse, or at least reconsider, its rejection of a decade-old petition seeking rescheduling.

Marijuana is Schedule I under the Controlled Substances Act, which means the government considers it to have no accepted medical use and a high potential for abuse. Other Schedule I drugs include heroin, ecstasy, and LSD. ASA is arguing that it should be down-scheduled, past Schedule II, which includes cocaine, methamphetamine and other amphetamines, and powerful opioid pain relievers (Oxycontin, morphine, Fentanyl), to Schedule III, which includes less harmful substances, such as steroids, less-powerful opioid pain relievers (hydrocodone, paregoric), and Marinol, or synthetic THC.

Medical marijuana advocates have thrice petitioned the DEA to consider rescheduling marijuana, citing increased knowledge about the medical efficacy of the herb. The first petition languished for more than two decades before the DEA rejected it; the second was finally rejected after seven years, and it took the agency a decade to reject the most recent one. In the intervening period, 17 states and the District of Columbia have moved to allow for the medical use of marijuana.

The DEA rejected the most recent rescheduling petition last year, saying there was no scientific consensus on marijuana's medical efficacy and that the plant has many "chemical components" that are not well understand. ASA and the individual plaintiffs appealed the decision in January. (Read the appeal brief here.)

In oral arguments Tuesday, ASA counsel Joe Elford charged that the DEA had ignored accumulating evidence of marijuana's benefits, and so acted "arbitrarily and capriciously" in rejecting the rescheduling petition last year. Federal law requires the agency to take such evidence into account, he said. Elford also accused the Department of Health and Human Services of creating a Catch-22 for medical marijuana advocates by strictly limiting researchers' access to marijuana, then arguing there is insufficient scientific evidence to merit rescheduling it.

"This game of 'gotcha' will continue indefinitely unless this court intervenes," Elford told the three-judge panel.

Despite the federal government's obstructionism, Elford was able to cite over 200 studies of marijuana's medical efficacy. He argued they helped prove that Schedule I is inappropriate for marijuana, and that its continued placement in Schedule I both harms patients and hampers research.

Elford accused the government of "bias" in its refusal to reschedule marijuana. It ignores its medical benefits and hypes its danger, which is the only way "the federal government could conclude that marijuana is as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine, and opium," he told the court.

But the DEA was prepared to defend its position. Agency attorney Lena Watkins told the court the agency had already considered the evidence and it found the argument that marijuana should be rescheduled unpersuasive.

"They don't have the type of study that would allow them or any other expert to reach a conclusion about the medical utility of marijuana," Watkins argued.

Marijuana is scary stuff, she told the court. The plant has "adverse physical and psychological consequences" and has been "implicated in hundreds of thousands of hospital visits," Wilkins said.

Wilkins did not acknowledge any of the logical caveats to those statements. For example, hospital emergency rooms routinely ask about substance use and that even a person who had used marijuana and then been injured by a drunk driver would be coded as a "marijuana-related" emergency room visit. Additionally, actual marijuana-related emergency room visits typically are anxiety attacks or panic reactions, which are easily treated, and not life-threatening events like potentially fatal hard drug or alcohol overdoses.

"Marijuana is the most widely abused drug in America," Wilkins added, noting that abuse potential is one of the criteria for placing a substance on the schedule.

The court and the opposing attorneys also addressed the issue of standing. In rejecting the appeal of the second petition--from 1995--that the DEA refused to reschedule, the court never addressed the core issues of the case, instead throwing it out because petitioner Jon Gettman, a marijuana researcher and former national NORML executive director, could not demonstrate direct harm from the government's actions.

This time around, ASA has plaintiff Michael Krawitz, a disabled Air Force veteran from Virginia who is dependent on the Veterans Administration for his health care and who is prevented from even asking about medical marijuana to treat his pain. Krawitz is being directly harmed by federal policies and thus has standing, Elford argued.

"That seems pretty straightforward," said Judge Harry Edwards.

But the DEA's Watkins demurred, arguing that Krawitz could not legally obtain marijuana anyway because Virginia has not approved its medical use.

At the end of the day, it was unclear whether medical marijuana advocates had won their argument before the panel of veteran judges. The jurists appeared to question whether the courts had the right to second-guess the DEA.

"The real question is to what extent we have to defer to the agency," said Judge Harry Edwards.

"Don't we have to defer to their judgment?" asked Judge Merrick Garland. "We're not scientists. They are."

The pair of judges said they would not overturn the DEA's decision unless they found it to be "arbitrary and capricious." But that, of course, is precisely what Alford and the plaintiffs argued it is.

The appeals court will not hand down its decision for some months.

Medical marijuana has made great inroads in parts of the United States. With the exceptions of Idaho, Utah, and Wyoming, the West is medical marijuana country. The Northeast is also trending that way, with Massachusetts looking likely to join the ranks come election day, while Michigan represents medical marijuana's first acceptance in the Midwest.

The South remains the last region of the country without a medical marijuana state, but that could well change on November 6, when voters in Arkansas will have the chance to approve a medical marijuana initiative there.

Sponsored by Arkansans for Compassionate Care, the Arkansas Medical Marijuana Act (Issue 5 on the ballot) would allow patients suffering from a specified list of diseases and conditions to use and possess marijuana on a doctor's recommendation after registering with the state Health Department. Patients would obtain marijuana from state-regulated non-profit dispensaries. Only those patients living more than five miles from a dispensary could grow their own or have a caregiver grow it for them, and they would be limited to six plants per patient.

The campaign is counting on the compassion of Arkansans to bring it to victory in November and is highlighting the plight of patients like Emily Williams, a Fayetteville wife and mother diagnosed with lymphoma in 2010. Williams underwent extensive chemotherapy, resulting in extreme nausea, headaches, and general lethargy. She was unable to eat, drink, or take any medications because of the side effects, and anti-nausea agents her doctors prescribed didn't help.

"I had an intravenous medication, a pill, a patch, and a tablet which dissolved under my tongue, but none of them changed any of my symptoms," she said, explaining how she reluctantly turned to medical marijuana. "I knew I was putting my family at risk. We could have been arrested or lost our property, but I was dying and nothing else was working."

Medical marijuana worked. "Within 10 minutes, my headache was gone, my nerves were relaxed, the pain in my body was gone, and the nausea was totally gone, it totally disappeared," she said. "It allowed me to live a normal life. I was able to eat dinner with my family, and to be more active."

But the risk from marijuana's illegality was too much for Williams. She refused to use it during her last round of chemotherapy because of fears for her family, and paid a price. The anti-nausea drugs still didn't work, she lost ten pounds in a week, and her recovery was unnecessarily prolonged.

"Marijuana helped me live a normal life during my battle with cancer, but it was too risky," she explained. "I was offered marijuana during my last treatment, but I couldn't bring myself to put my family in jeopardy. I would have recovered much more quickly. I would have been able to eat, sleep, and continue through my treatment without struggling as much. Patients shouldn't suffer because of the law. Why can't there be some other possibility?"

The campaign is counting on stories like Williams' to turn a neck-and-neck race into a victory on November 6. The only recent poll on the initiative, a Talk Business-Hendrix College poll in July, had it eking out a one-point lead at 47% to 46%, with 7% undecided, but the campaign said it thought support had only increased since then.

"I suspect that number has changed quite a bit," said campaign strategist Chris Kell. "Once we got the signatures, we also got a phenomenal amount of attention, and it's hard to say no to the stories of these patients. Now, people are hearing about the initiative, they're visiting the web site, and we're going to be tugging pretty heavy at their heartstrings."

It's all out for the final push to victory now, he said.

"We've overcome so many hurdles, we're really excited, and we're ready to take this campaign to the ground," Kell exclaimed. "The response so far has been very favorable, and I'm confident we can get this thing passed in November. We hope to be a model for all the other Southern states."

The final hurdle overcome was a lawsuit filed by the social conservative Arkansas Family Council Action Committee that sought to keep the measure off the ballot by challenging the ballot language. The state Supreme Court rejected that effort last week.

"This is about legalizing marijuana," Family Council Action Committee head Jerry Cox told the Ozarks Times in August when the challenge was filed. "It's just a matter of legalizing it in degrees. I think you'd find, if you asked around, that a lot of the same folks who support this support total legalization of marijuana for any purpose. I believe their real agenda is to have marijuana be as legally available as tobacco."

The Marijuana Policy Project contributed money to help gather the signatures to get the measure on the ballot and helped with the court challenge, but the campaign is now looking for more money to get some advertising on the airwaves before the election.

"All the money we were expecting from various folks got tied up with that lawsuit," Kell explained. "Nobody wanted to give money until they were sure it was actually on the ballot. Now that it is, we will have an effort to raise enough money so that we can hopefully have a paid media campaign in the last week."

If they do manage a paid media campaign, it looks like it will be the only one. Aside from the Family Council, organized opposition is scarce.

"We haven't seen any real law enforcement opposition yet, and some on the ground will tell us quietly they are for it, that they don't want to have to arrest people who have small amounts for medicinal purposes," said Kell. "The only organized opposition even on a minor level is coming from people who benefit from keeping this illegal, treatment centers and that kind of thing."

Kell wasn't too worried about the family values crowd and its use of the bully pulpit to encourage "no" votes.

"We're not really all that concerned with them," he said. "When you go into that voting booth, that's a private deal. You can have a faith leader tell you one thing, but you can still vote your conscience. Plus, we have our own clergy getting the word out, and if you have any compassion at all, it's hard to say no."

Arkansas is generally considered a conservative state, but that's not completely true, Kell said, noting that it had elected and reelected liberal Bill Clinton governor, then followed that up by electing social conservative Mike Huckabee as his replacement.

"Arkansas is a strange state politically," he said. "We've been getting as much help from the conservative side as from the liberals. People could cross party lines to vote for this in large numbers. The voters here are pretty pragmatic and well-informed when they vote. I think they will vote for compassion."

In little more than a month, we will see if Arkansas will lead the South toward the medical marijuana promised land.