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Reform school
US drug-law reform’s electoral winning streak came to an abrupt end in November. How can the movement regroup in the face of the White House’s reinvigorated war on drugs?
BY RICHARD BYRNE

IF YOU THOUGHT that November 5 marked a setback for the Democratic Party alone, think again. America’s movement against the controversial and open-ended "war on drugs" also suffered one of its biggest defeats in recent memory on Election Day 2002.

This year's casualty list for drug-law-reform ballots — which seek to modify or reverse the often-draconian penalties for drug offenses — isn’t pretty. Nationwide, three statewide ballot initiatives to reform marijuana laws went up in smoke. Another two measures — one to soften penalties for nonviolent drug infractions and another to fight off the re-implementation of such penalties — were also rejected by voters. Set against a winning streak that had racked up 16 ballot victories for drug-law reform over the last six years, the 2002 reversal has left a bitter taste in the mouths of reformers.

In fact, drug-law reform’s only victories in November’s balloting came at the local level — in cities such as San Francisco and Washington, DC, and in 19 legislative districts in Massachusetts, where voters instructed their legislators to support marijuana-decriminalization measures at the State House. (Two other Massachusetts state-congressional districts also voted thumbs-up on legalizing medical-marijuana use and hemp farming.)

Just as the Democrats have engaged in finger-pointing to assign blame for their midterm-election meltdown, "recrim about decrim" has swept the drug-law-reform community. Not surprisingly, the postmortem examination of the movement’s failure at the polls has focused on many of the same factors that plagued the Democrats in the 2002 elections — being outspent, out-shouted, and even outsmarted by their opponents. The question that faces drug reformers now is, what should they do about it?

THE PAST successes of drug-law reformers were built on discipline. Ballot initiatives were not pursued unless the states in question had a combination of strong polling numbers and public support from credible legislators and law-enforcement figures. This is how reformers in California and Arizona enacted medical-marijuana initiatives in 1996. But some of the states targeted in 2002 — such as Nevada, where polling numbers were consistently less than 50 percent — fell short of those criteria. And for the first time, reform efforts met with organized resistance that, proponents felt, kept them from getting a fair shake. In Florida and Michigan, for example, planned initiatives that had garnered significant popular support were put on ice by legal delaying tactics that kept them off the ballot.

Bruce Merkin, director of communications for the Marijuana Policy Project (MPP), which helped fight for the Nevada initiative, says both factors added up to defeat. "There was a willingness to take a bit more of a risk and run initiatives that were not slam-dunks," he observes. "And for the first time, the other side decided to get serious. They proved that if you scare people enough, you can get them to vote ‘no.’"

The results were ugly. An Ohio measure to swap treatment for incarceration for nonviolent drug offenders was whupped by a margin of 67 percent to 33 percent — while an Arizona measure to do just the opposite won by a vote of 69 percent to 31 percent. Meanwhile, another Arizona initiative to substitute civil fines for criminal prosecution for possessing small amounts of marijuana and to establish a state medical-marijuana-distribution system failed to pass by eight percentage points. In Nevada, a measure to decriminalize possession and establish a legal sales mechanism for pot lost by 61 percent to 39 percent. An attempt in South Dakota to allow farmers to grow hemp with state approval also fell far short of passage.

Shortcomings in strategy can be fixed, however. Another, perhaps more important, factor that sealed the defeat of both Democrats and drug-law reformers this autumn is something that appears to be well beyond "fixing," at least in the short term: the seemingly irresistible force that the highly popular war on terrorism exerts on other issues. Events that otherwise might have played out well for the Democrats in 2002 — a swooning economy, huge budget deficits, and assaults on civil liberties and the environment — have been swallowed up in the Zeitgeist of present and future war and President George W. Bush’s high approval ratings. "The war on drugs has been subsumed into the more popular war on terror," says Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML) Foundation.

The White House’s Office of National Drug Control Policy (ONDCP) — headed up by "drug czar" John Walters — hasn’t been shy about tying its own multi-billion-dollar efforts to the war on Al Qaeda. In the same manner in which the Department of Justice quickly used the terrorist attacks to grab long-sought-after powers of surveillance and detention, the ONDCP found a way to turn the war on terror to its advantage. By January 2002, Walters’s office had cobbled together a new anti-drug ad campaign explicitly linking drugs and terrorism. The first ad even debuted on the most exaggerated and exalted commercial platform available in the United States — during the Super Bowl. Thus, hundreds of millions got to see young "drug users" casually mention that they "helped kidnap people’s dads" and "help blow up buildings."

The terror-related anti-drug spot was only one part of a stream of reality-warping advertisements with which drug-law-reform advocates have had to contend. One recent ONDCP advertisement depicted marijuana as a date-rape drug. Another new ad seems to have discovered the traditional "stoner" humor of Cheech and Chong and Fast Times at Ridgemont High, as it depicts a car full of severely blunted teens abusing a drive-through-restaurant worker.

The drug czar crowed about the new line of ads as they were introduced in October. "These extensively tested ads offer teens tangible, real-world examples of what can go wrong when they use marijuana," Walters said. All this despite the results of a recent study commissioned by the National Institute on Drug Abuse (NIDA), which concluded that the ongoing ad campaign, begun in 1999, hadn’t made a dent in teen pot smoking — and, in fact, observed an increase in use by those over 14 years of age.

Yet, at the same time that the White House wants to brag about its anti-drug ad buys, it also wants to hide its hand in its own ad campaign. A few days after the November election, the Federal Communications Commission (FCC) issued a ruling in an appeal brought by the nonprofit Ad Council — which coordinates such public-service advertisements — that sought to remove references to the drug czar’s office from the ads. The FCC rejected the argument that identifying the ONDCP’s role in the ads would kill off media cooperation and reduce the effectiveness of the campaign.

Above or below the radar, the pervasiveness of the drug czar’s ad onslaught amounts to a permanent campaign against drug-law reform — with an all-star cast of businesses signing on for the ride. Check out the ONDCP’s Web site, and you’ll find a panoply of businesses on the White House’s drug-war team. They range from DKNY Jeans and an array of airlines — United Airlines, US Airways, and Northwest Airlines — to media companies including the New York Times, USA Today, and cable conglomerate Cox Communications. As has been reported a number of times in the past few years, by injecting "anti-drug" content into their entertainment programming, such media partners earn "credit" with the ONDCP that can be applied toward federal "public-service" ad requirements.

Furthermore, say drug-law reformers, the timing of the ONDCP’s new ads was both ominous and odd for the reform efforts this fall. "I know that the ads were seen heavily in Nevada," says Merkin. "When we would talk to people, they’d say that they’d already seen ‘the opposition’s ads.’"

Walters also made a point of interjecting himself into the Arizona, Nevada, and Ohio initiative contests personally, traveling to all three states for public appearances. His campaigning raised questions about the propriety of a federal official stumping against statewide ballot initiatives, which Walters dismissed with a combination of arguments: he was begged by anti-initiative forces to make an appearance, and he wasn’t spending ONDCP cash to do so.

That didn’t stop Walters’s office from doing a victory dance when the votes were in, however. "These failed initiatives represent the high-water mark of the drug-legislation movement," crowed an ONDCP press release in Walters’s name. "Common sense has prevailed, and from now on, the tide turns our way — the way of dedicated Americans working to protect their children and their communities from the dangers of drugs."

For its part, the MPP has filed a complaint with the US Office of Special Counsel over Walters’s stumping against the ballot measures — specifically charging the drug czar with breaking federal laws prohibiting such political activity by federal appointees and with violations of the reporting provisions in Nevada campaign-finance law.

"These laws are fairly specific about not using one’s office to influence an election," says Merkin. "We think we have a solid enough case to file the complaint."

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Issue Date: December 12 - 19, 2002
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