Cannabis eventually reached the Americas through the slave trade. In Brazil in the 1500s, slaves were allowed to grow small amounts in the cornfields they tended and smoke it during work; their Portuguese masters reported that it made the slaves more complacent. As cannabis crossed into Central America, indigenous tribes regarded it as a medicinal and spiritual plant, similar to the native peyote. Soon it evolved into a healing herb that soothed the hardships of peasant life in general. Soldiers in the Mexican revolution reportedly loved it, as noted in the folk song "La Cucaracha": "The cockroach/can't walk anymore/because it doesn't have/because it is lacking/marijuana to smoke."
Further north, though, people were more interested in more fibrous strains of the plant, which came to be known as hemp, cultivating them for fiber to make ropes and sails for ships. By the time of the American Revolution, hemp was grown all over North America — including on the plantations of founding fathers such as George Washington and Thomas Jefferson. "Make the most of the Indian hemp seed, sow it everywhere," Washington pronounced. Colonists paid taxes with hemp, and in mid-1700s Virginia, refusing to grow it was punishable by jail time. But while hemp and cannabis today are still similar plants, commercial varieties of hemp have been bred to contain little to none of the psychoactive ingredient THC found in cannabis; hemp is prized primarily for its fibers.
When Colorado became a state, in 1876, both hemp and cannabis were legal — and they stayed that way for decades. By the late 1800s, cannabis oil was a common ingredient in medical tinctures, and Asian-style hashish dens had become fashionable in cities like New York and San Francisco. That increased popularity led to concerns that hashish would lead to mass addiction, and in 1906 the federal government imposed the first regulation on cannabis intended for consumption: A product simply had to be labeled if it contained the herb.
But in the Southwest, cannabis was gaining a darker reputation. The plant was associated with the migrant workers flooding the area for low-paying field work: brown-skinned people who made light-skinned people uncomfortable by eschewing liquor in favor of the crazy herbs they brought with them from Mexico or the Far East. Officials and the media began calling the herb "marijuana" rather than the traditional "cannabis," because it sounded more like Spanish and was therefore scarier to whites. California became the first state to outlaw marijuana; the law, passed in 1913, had another name for it: "loco weed." Between 1915 and 1917, Wyoming, Utah and Nevada all banned cannabis.
In March 1917, Colorado legislators made the use and cultivation of cannabis a misdemeanor; those who broke the law were subject to a fine of between $10 and $100 and up to a month in jail. The bill was sponsored by Andres Lucero of Las Animas; given his Hispanic surname and the fact that, later that same year, he also sponsored a measure outlawing cocaine and opium distribution, it's likely that Mexican immigrants were not the target of the bill. Instead, it might have been part of the growing national temperance movement that led to Prohibition in 1920.
But in 1929, when the Colorado Legislature passed a law making the sale, possession and distribution of marijuana a felony in Colorado, minorities were clearly the focus of the measure. A Mexican immigrant who'd murdered his stepdaughter in Denver that year was reportedly under the influence of cannabis; sensational newspaper stories played up both the drug and his origins. Val Higgins, a Denver chaplain, told the Rocky Mountain News that the new, stricter legislation was necessary to control the growing Mexican population. "The use of marijuana came into the state with the Mexicans migrating here for agricultural work," he said. "Its use is growing because of the increasing number of Mexicans and the ease with which most of them have been able to avoid penalties."
News reports in the early 1930s continued to push the perception that marijuana was a scourge of minorities. Articles detailed raids on Hispanic homes and busts in traditionally Hispanic neighborhoods. A News story in August 1937 titled "Marijuana in Denver? Sure, Plenty of the Stuff" detailed the writer's excursion to then-seedy Larimer Street to deal with "dark faced men" who were dealing herb bundled into "deuces, and aces" and selling two joints for a quarter. Another piece talked about how beet workers — traditionally migrants from Mexico — brought the marijuana into Denver regularly to "augment their scanty income."
Other accounts were more blatantly racist, describing fields of marijuana being grown by Mexicans who "corrupt" local youth. In August 1937, a Denver Post article reported that two Mexican nationals arrested for selling marijuana to high-school students had been jailed for ninety days, as well as fined for narcotics violations and vagrancy; the men had reportedly bragged to police that marijuana was growing wild along the Platte. The story was no doubt as sensational then as it would be today, since cannabis is not native to the Denver area, nor does it grow feral here as it does in other parts of the Midwest that cultivated legal hemp during World War II.
The rest of the country was soon swept up in the racist reefer madness that had already grabbed the Southwest. The federal government passed the Marijuana Tax Act in 1937, making marijuana use and cultivation without a license a crime; however, the government never issued such a license. Just three years earlier, the 1934 Uniform State and Narcotic Drug Act regulating medical narcotics had included cannabis as a legal drug, and any violations involving it were considered misdemeanors.
By the 1960s, Hispanics were no longer the primary focus of local enforcement of marijuana laws. The hippies had arrived. The newspapers were full of stories about hippies busted with marijuana plants in their back yard and columns that made it clear that their authors thought hippies deserved to rot in jail over possession of a plant.
But public opinion was shifting. In 1968, the News reported that 67 percent of Colorado College students favored legalization of marijuana. The University of Colorado was another stoner-friendly school; in a March 29, 1965, article, a News reporter revealed his shock at how much marijuana was available on the campus and how many students were using it. By 1970, legislators and a few progressive lawmen were arguing for lowering the penalties on cannabis possession and use, and that August, recreational possession was downgraded from a felony to a misdemeanor. Later that year, Hunter S. Thompson ran for sheriff of Pitkin County on a complete drug-decriminalization platform — and nearly won.
The cannabis climate had clearly become more friendly by 1973, when legislator Michael Strang, a Carbondale Republican, introduced the first re-legalization effort in Colorado history. The bill would have made possession and use of marijuana legal for anyone eighteen or older. "Our society has decided it wants to use this stuff, regardless of the risk," he said. Strang's bill would have created licenses for growers, wholesalers and retailers, and put a $6-per-ounce tax on any marijuana sold; at the time, the going rate for an ounce was about $15.
Although Strang's proposal never passed out of committee, Oregon reduced the penalties for marijuana possession that year. And in 1975, the Colorado Legislature followed suit, decriminalizing possession, transportation and private use of marijuana; possessing up to an ounce of the stuff was made a petty offense, with a maximum fine of $100. (That amount was increased to two ounces in 2010, still with a maximum fine of $100 and the potential for fifteen days in jail for things like smoking in public. And sale to anyone can still net up to fourteen years in state prison.)
Colorado's first medical marijuana bill, dubbed the "Dangerous Drugs Therapeutic Research Act," was introduced in 1979 and signed into law by Governor Dick Lamm; it allowed cancer and glaucoma patients to use medical marijuana. Doctors had to prescribe the drug, and patients were to pick up their meds at the University of Colorado Health Sciences Center in Denver — but there was a hitch. The program was dependent on federal government approval, which never came. Lamm signed another bill, called "Therapeutic Use of Cannabis," in 1981; this time, patients were to obtain their pot from the feds. They're still waiting.
The sponsor of that bill, then-Representative John Herzog of Colorado Springs, says the goal was to expand the program created in 1979 to twelve hospitals around the state, which would all be able to offer cannabis to cancer patients. He recalls that the measure received a surprising amount of support from fellow legislators; the minimal opposition came mostly from local PTAs. Although the expanded program even got a nod from the National Institutes of Health, it never took off. That's because in October 1970, the federal government had classified marijuana as a Schedule 1 controlled substance with no therapeutic value — a status it officially retains today.
In 1996, California voters approved Proposition 215, allowing the use and cultivation (and sale, some argue) of medical marijuana. That got the ball rolling in Colorado, and proponents of MMJ pushed Amendment 19 onto the ballot in 1998. But then-Secretary of State Vikki Buckley refused to count the votes, saying that the measure did not have the proper number of signatures to get on the ballot in the first place. Those proponents tried again, though, and in 2000, Coloradans approved Amendment 20, which made this the only state to legalize medical marijuana in its constitution.
The amendment permitted medical marijuana use for people with chronic weight loss, muscle spasms, seizures, severe pain and severe nausea; caretakers were to "dispense" this medicine after doctors had prescribed it. The program went online in June 2001, despite warnings from then-Attorney General Ken Salazar that any doctors who issued such prescriptions could face federal charges. (While some doctors have faced state sanctions in recent years, none have been prosecuted federally for prescribing pot.)
While the medical marijuana industry was evolving, activists continued to push for recreational use of marijuana. In 2005, Mason Tvert's newly founded Safer Alternatives to Recreational Enjoyment pushed — and passed — resolutions at Colorado State University and CU demanding that cannabis penalties be no worse than penalties for alcohol offenses on campus. That same year, SAFER put a measure on the Denver ballot that would decriminalize possession of up to an ounce of marijuana by anyone over the age of twenty. When Denver voters approved the proposal, the Mile High City became the first major city in the country to make such a move — even though it was mostly symbolic and simply reinforced the state's 1975 decriminalization laws.
Still, it was seen as a win for the cannabis community, and it inspired SAFER to push for a similar statewide measure in 2006 that only received 40 percent of the vote. In 2007, SAFER again focused on Denver, which this time approved making marijuana possession the city's lowest police priority.
And soon a lot more people would be possessing marijuana — legally.
For nearly a decade after the passage of Amendment 20, the medical marijuana program in this state was small, mostly underground, and run by a few pioneering caregivers like the late Ken Gorman, who famously advertised in Westword for his services; these caregivers were overseen by the Department of Public Health and Environment.
But in 2007, Denver District Judge Larry Naves ruled that these caregivers were not limited to five patients, as the law had previously been interpreted. That, along with a broad definition of the amendment's language allowing caregivers to "dispense," was enough to inspire eager ganja-preneurs to open actual medical marijuna dispensaries, which had already begun popping up in California. They were further encouraged by the election of President Barack Obama in November 2008. By early 2009, there were dozens of dispensaries in Denver, and later that year, Naves again pushed the industry with a liberal interpretation of caregiver. By September 2009, there were enough dispensaries in the metro area that Westword started advertising for a pot critic.
But most would still say the real green rush was triggered on October 19, 2009, when Deputy Attorney General David Ogden wrote a memo to all U.S. Attorneys advising them to consider the enforcement of federal drug laws among their lowest priorities when dealing with states' legal medical marijuana patients and programs. The Ogden Memo, as it has become known, seemed to give the official go-ahead to the state's evolving dispensary system. And in response, the number of official MMJ patients jumped from just under 20,000 at the start of October 2009 to more than 100,000 by the following July.
By 2010, the dispensary boom had become a major issue for Colorado politicians, who crafted House Bill 10-1284 in an attempt to regulate and guide (and in many ways, rein in) the fledgling MMJ industry that had been operating in a largely unfettered manner to that point. The measure established operating hours, security requirements and plant-monitoring procedures for dispensaries; required that dispensaries — now known as "centers" — grow 70 percent of the marijuana they sell; and prohibited former drug felons from working in the industry. The bill also allowed for cities and counties to enact their own bans against retail marijuana sales — and so far, more than eighty have. Most important, HB 1284 created a new branch of the Department of Revenue: the Medical Marijuana Enforcement Division, which is funded primarily by dispensary license and application fees.
At the same time Colorado officials were trying to come to grips with one new marijuana industry, some cannabis activists were already pushing to create another one. In the summer of 2011, there were several legalization proposals being considered by various factions, including one by the Campaign to Regulate Marijuana Like Alcohol, headed by Tvert and attorney Brian Vicente. But only their proposal had the momentum to make it onto the ballot, as Amendment 64, which Coloradans will vote on next week.
If Colorado voters pass Amendment 64, possession of up to an ounce of marijuana for personal use by adults 21 and older would be legalized. (Possession of up to two ounces would still be decriminalized under state law for adults 18 and up.) Amendment 64 would also authorize the state to collect a voter-approved excise tax of up to 15 percent on marijuana — with the first $40 million collected earmarked for public-school construction across Colorado. Although personal sales would not be legalized, cultivation of up to six plants at a time would be permitted (again, for those 21 and up only), and growers would be able to keep their entire harvest, even if it is over an ounce; they could also give away up to an ounce to other adults 21 or over. (Laws against growing currently carry penalties of eighteen months in jail and up to $5,000 in fines for even a single plant.)
"Marijuana prohibition is causing harm every day we allow it to continue, so we believe that it is imperative that we replace it with a more sensible system as soon as possible," Tvert says. Past SAFER victories have played "a significant role in sparking a dialogue about marijuana in Colorado," he adds, "and the emergence of the regulated MMJ system has also played a role. If you talk with [Vicente], he'll point more to the legal wins, but I know the social movement has played a huge role as well. Both have changed the way people think about marijuana."
Amendment 64 has received the backing of numerous groups, including the Colorado Democratic Party, the Libertarian Party of Colorado (including presidential nominee and former New Mexico governor Gary Johnson), the Green Party of Colorado, the local branch of the ACLU and the Colorado Criminal Defense Bar. It is also supported by Law Enforcement Against Prohibition, as well as retired Denver Police lieutenant Tony Ryan, who spent 36 years patrolling the city. But its most recognizable supporter could well be former congressman Tom Tancredo, a Republican firebrand who called marijuana prohibition a "wasteful and ineffective government program" in his official endorsement of 64.
Supporters don't just give Amendment 64 lip service. According to VotersEdge.org, a non-partisan group that tracks campaign financing, the Amendment 64 campaign has collected more than $1.7 million from individuals, with the majority coming from out of state. California-based entrepreneur Scott Bannister contributed a quarter-million to the campaign, and San Diego-based peace activist Lawrence Hess donated $30,000. Donations from groups supporting the measure, including the Coalition to End Marijuana Prohibition, have upped the pro-64 war chest to about $3.7 million. The largest chunk for the Campaign to Regulate Marijuana Like Alcohol came from the Washington D.C.-based Marijuana Policy Project, which donated more than $1.2 million. Drug Policy Action, a national drug-law reform organization, dropped another $65,000 in the kitty.
Also noteworthy is a $50,000 donation from California-based Dr. Bronner's Magic Soaps, a contribution that echoes back to the early days of cannabis in this country. The Bronner's soaps are made from hemp oil that company head David Bronner now has to import from Canada, and with no competition, Canadian hemp producers are charging a premium. Bronner sees Amendment 64 as a way of forcing the issue of commercial hemp farming with the federal government. "Basically, we need major agricultural states to reach a critical mass," he says. "If they adopt an industrial hemp program, it will keep the pressure on Washington — to get more and more traction, so we can get industrial hemp cultivated again."
The No on 64 campaign has only a fraction of pro-64's money. Campaign director Roger Sherman says the disproportionate funding is disappointing but not surprising. "I mean, it is what it is," he says. "They benefit from a national movement, and there is a national network of donors. It's always a challenge when you are faced with that kind of opposition."
But that doesn't mean Sherman is opposed to out-of-state money. By mid-October, No on 64 had racked up almost $440,000 in donations. The largest — $157,497 — came from Florida-based Save Our Society From Drugs, a group whose website lists its mission as helping Americans "defeat ballot initiatives, statutory proposals and other attempts to 'medicalize' unsafe, ineffective and unapproved drugs such as marijuana, heroin, and crack cocaine." Focus on the Family affiliate Citizenlink ranks second with a $25,000 donation, followed by Colorado businessman Steve Mooney's $20,000. Centennial's family-operated Trice Jewelers donated $15,000.
But while their campaign fund might be overwhelmed by the pro-pot pot, "We have the right message on our side," Sherman says. "This is not the kind of issue we want embedded in our constitution. If you love Colorado, is this really the type of thing you want our state to be known for?"
The official No on 64 group has gained support from state legislators, county sheriffs and municipal officials across the state — even though 64 would allow municipalities to opt out of the measure. The highest-profile opponent to 64 is Governor John Hickenlooper. "Amendment 64 has the potential to increase the number of children using drugs and would detract from efforts to make Colorado the healthiest state in the nation," he said in announcing his opposition. "It sends the wrong message to kids that drugs are okay."
That elected officials would oppose the proposal isn't surprising. What is surprising, though, is the number of marijuana activists who oppose Amendment 64.
Truth be told, this state's pot proponents never seem to agree on anything, other than that cannabis is amazing — and even then it's unlikely that they'd say that in unison, and they'd definitely disagree over how to consume it. The Amendment 64 campaign turned in its proposal to the Colorado Secretary of State's Office early, and without consulting other pro-legalization groups. That gave other activists the opportunity to argue that the language is flawed, and even to openly campaign against the measure.
The Colorado Alliance for Regulation and Education has been among the most active. CARE president Rico Colibri, who for a time floated an alternate legalization proposal, says that one of his problems with Amendment 64 is the fact that it's been marketed as the "Campaign to Regulate Marijuana Like Alcohol" — and that misleads voters, he charges, since alcohol sales are not limited to only certain amounts of beer, wine or liquor per customer.
But 64's real danger, Colibri argues, is its failure to create a right for cannabis use that would protect Coloradans from violating federal controlled-substances laws; it doesn't even give cannabis users a defense against employers who want to fire workers for using marijuana in their free time. Colibri points to recent rulings regarding Arizona's immigration laws as proof that state laws cannot be in conflict with federal laws. Passing Amendment 64 would do nothing to prevent federal marijuana arrests in Colorado, he says, and it also fails to remove federal funding and assistance for law enforcement efforts at the state level. "We have to start somewhere, but do we start in a position that kicks out the red carpet and makes everyone think it's like alcohol when it's like in the Controlled Substances Act?" he asked at a recent town hall meeting. "We have to remove funding from the feds. This is a money matter. It's all about money; they don't give a damn about civil rights. If you don't remove the money, they are coming."
And Colibri isn't alone in thinking that Amendment 64 doesn't go far enough. Even Tvert admits he'd like to see a proposal that opens up Colorado to total unregulated legalization of cannabis, but that won't happen overnight. In the meantime, he points out that the one-ounce limits in Amendment 64 are merely a baseline and can be increased by state statute. "The notion that it's better to keep marijuana 100 percent illegal for non-medical use because we'd like it to be 100 percent legal without any sort of regulation is counterproductive and irrational," he says.
Last week, the New York-based Marijuana Arrest Research Project released data showing that police in Colorado made more than 210,000 arrests for marijuana possession between 1986 and 2010, which put it right in the middle of all the states for pot arrest rates.
A disproportionate number of those arrests involved minorities. Although statistically whites use more marijuana than any other racial group, Hispanic tokers are almost twice as likely to be arrested — and African-Americans are more than three times as likely. The study made a point of noting that only 3.8 percent of all Colorado residents are black.
A second study by Drug Science.org based on the same FBI Uniform Crime Reporting Program data indicates that the arrest rates for possession in Colorado hovered between 10,000 and 12,000 in recent years — arrests that Amendment 64 backers say would end if their bill passes. As neither study breaks down the possession arrests by amount, though, critics say that proponents are being misleading when they say that arrests would be eliminated, since the amendment would only legalize an ounce for personal possession. But 64's backers counter that legal pot shops will eliminate the need for mid-level pot dealers, who are now getting busted for storing up several ounces at a time to sell off.
As for Colorado's decriminalization of up to two ounces? The MARP study points out that a court appearance is mandatory, and missing it could mean up to a $500 fine and six months in jail. "It would be a mistake to think that these arrests do not carry significant consequences for the thousands of mostly young Coloradans who go through the arrest, prosecution, and sentencing process every year," the report concludes.
Although both Oregon and Washington state also have marijuana legalization measures on the ballot, Colorado's looks like it might have the best chance of passing, with polls in late October showing voters equally divided.
What would happen if Amendment 64 is approved?
Even though the amendment would be in the Colorado Constitution, it would not supersede the federal Controlled Substances Act, nor make marijuana in any way legal at the federal level. Getting popped federally for cultivation could still net a quarter-million dollars in fines and up to five years in prison. But 64 would create a buffer for use and possession of limited amounts in Colorado: State police would not be able to cite or arrest anyone for anything at or under the prescribed amount.
Someone in the state legislature would have to take the lead and propose legislation to regulate the new marijuana industry, as lawmakers did with HB 1284. Nancy Spence, who is now retired, was one of the two Senate sponsors of that measure; although she says she wasn't supportive of the boom in the MMJ business, she helped craft the rules because it was the right thing to do. "I tried my best to do a good job at the regulation," she recalls. "Although I didn't support MMJ in the year 2000, the responsible thing to do was take care of it and do my best to make certain that it was regulated in a way that would contain it."
So far, no legislator has stepped forward — at least, not publicly — to do the same work on Amendment 64. It's possible that none will — and even if such legislation is passed, the governor could refuse to sign it. But the language of the ballot proposal takes that into account. If state government stalls on enacting the will of the people, one lawyer notes, the matter would automatically bypass the state and go straight to local jurisdictions, which would then license and regulate the stores. (If they allow them at all; as with MMJ, municipalities can opt out of pot shops.)
Tvert points to the state medical marijuana system as a good example of what this version of legalization regulation could look like. Just as the Colorado Legislature charged the Department of Revenue with regulating the MMJ business, Amendment 64 would have the Department of Revenue do the same for commercial marijuana stores. That means regulating everything from labeling requirements to production standards to advertising and display of marijuana in public. And all of those rules would have to be in place by July 2013, so that the state could begin licensing pot shops that October.
But while Tvert cites the system that the legislature set up with the Department of Revenue as a model that could be followed again, he might hope it works a little more smoothly the second time around. The Medical Marijuana Enforcement Division has struggled in its sixteen months of existence and has had financial problems, squandering a lot of its operating budget on overpriced video-monitoring systems and leases on new black Chevy SUVs. There aren't enough people on staff to drive those vehicles: The division has gone from thirty employees to around a dozen.
Partly because of the staffing shortage, more than a year after the division was established on July 1, 2011, it has yet to license all of the dispensaries around the state. Despite collecting more than $11.8 million in its first fourteen months of existence, as of October 23, the MMED had licensed just 266 medical marijuana centers around Colorado, and still had 277 licenses pending in the system. Those centers that were in business before July 2011 have been allowed to remain open in the interim — which means that some dispensaries have been open for years without paying licensing fees, while others that were issued licenses in September and October of 2011 are already being asked to cough up renewal fees.
If it passes, Amendment 64 has the potential to bring in far more money — and create much more work for the Department of Revenue.
Last month, the Colorado Center on Law and Policy estimated that the state could come out $60 million ahead in the first year after Amendment 64's passage, by cutting police costs and increasing tax revenue.
But how pot businesses would pay those taxes is another hurdle. As the medical marijuana industry discovered over the last few years, banks and credit unions insured by the feds have become wary of doing business with MMJ enterprises. That led state senator Pat Steadman to introduce a bill last year that would have created a state-run credit union for the medical marijuana industry. His idea was shot down in committee, though, and he ultimately conceded that the banking fix for marijuana businesses isn't going to come at the state level, but the federal. "The solution doesn't lie at the State Capitol in Denver," he said at the time. "This is a problem with federal law and federal law enforcement agencies. We have been searching and searching for some kind of work-around. The bill we came up with has the potential, but for various reasons, I'm not sure it's all there."
U.S. Representative Jared Polis attempted to remedy the problem at the federal level with the Small Business Banking Improvement bill last year, but the proposal never reached the floor.
Tvert and other supporters of Amendment 64 know there could be bumpy times ahead if the proposal passes — but no rougher than the times this state has already been through. "Like alcohol prohibition, marijuana prohibition has been wasteful and done more harm than good," Tvert says. "Colorado repealed alcohol prohibition before the federal government did, and we can repeal marijuana prohibition just the same."