Federal Cannabis Policy Evolves, Or Not – September 24, 2011

Saturday, September 24, 2011

Note: the interview below took place July 15, 2008 during the formulation of the City’s Land Use Code guidelines for medical marijuana cultivation and distribution. Among other things, it includes a prediction by the Bush administration’s second-in-command for drug policy that the federal government was soon to act against cannabis dispensaries. If that happened, it wasn’t in Arcata.

Recently, the Department of Justice under the Obama Administration warned the City of Eureka that it would prosecute individual city officials involved with regulating dispensaries – those who administer the types of codes Arcata has already enacted. The threat has paralyzed Planning Commission consideration of the Sai Center’s Conditional Use Permit, which didn’t stop owner Steven Gasparas from opening up on a Plaza block anyway. The City Council will give direction to City staff how to proceed with medical cannabis regulation at its Oct. 5 meeting.

Has federal policy on cannabis evolved at all from the Bush to the Obama administration? Will the federal government really follow through and prosecute community planning officials for administrating municipal law? Will the DOJ effectively invalidate Arcata’s Land Use Code? What should the Arcata City Council do? 

The following is offered for historical perspective, and was published in the July 22, 2008 Arcata Eye. – Ed.


Last Tuesday, the Bush Administration’s second-in-command of national drug policy visited Humboldt County as part of a California tour to scope out the state of the illegal cannabis industry. Scott Burns, deputy director of the Office of National Drug Control Policy (ONDCP) met with county officials, participated in a sweep of grow houses in Eureka and points south, then came to Arcata. 

The Arcata Eye was invited to interview Burns, and, with a phalanx of City and Humboldt State Unversity officials in attendance, took 25 minutes of his time in the Arcata Police Department’s conference room. Offering interjections during the interview are Arcata Police Chief Randy Mendosa and Tommy LaNier, director, National Marijuana and Public Lands Initiative. 

Eye: What brings you to Humboldt County?

Burns: As I was telling the good folks here, it’s not exactly ground zero, but it’s as close aas you can get to looking at the marijuana issue in the United States. We’re coming, 1. To see firsthand, and 2. I wanted to thank the women and men that are on the front lines of this. We hit four grow houses today, and every one of them had firearms and ammunition and/or a pit bull. It’s dangerous work.

Eye: When you say you “hit” them, you did, for want of a better term, a raid?

Burns: Law enforcement officers raided… how many total, Tom?

LaNier: They did 14 different locations, 14 different grows, I think, today.

Mendosa: The Drug Task Force.

Eye: Oh, DTF? Where were these located?

LaNier: Yeah, we three didn’t independently come out there and…

Burns: Shut up, yes we did. I led the way on every one of them. (Wave of laughter in the room.)

Eye: And where were these located? Were any in Arcata?

Burns: They were all in Eureka, weren’t they?

Mendosa: Some of them were in unincorporated areas south of Eureka.

Burns: A couple in the county.

Eye: Were these what we think of in Arcata as houses – that is, residential homes that have been converted to this industrial use?

Eye: I guess back in Washington they’re aware of this phenomenon?

Burns: Yes, it’s not only happening here; it’s happening nationwide. It’s probably more commonplace and more accepted here. It’s met with open mouths and gasps in upscale neighborhoods in Florida and Ohio and Georgia. here, it just seemed like people kinda yawned and said, “So what?”

Eye: Why did you come here if this is a kind of national phenomena? Because it’s the most prominent areas, or concentrated areas?

Burns: Most prominent and going on for the longest time. I think if anybody were to look at it and say that you know its been, this is kind of the genesis of it. It’s a lot more commonplace here and a lot more accepted.

Eye: In Humboldt County, are you going to areas other than Arcata? You mentioned Eureka – are you scoping out the whole county?

Burns: We’ve tried to meet with everybody we can meet with in a couple of days and then I’ll be going back. I’ve been to the public lands and the national forests on a number of occasions. We’re also here with a CNBC crew. It’s gonna do a one-hour national documentary about this issue and they’ll be flying with…

Whorley: CAMP, next couple of days.

Eye: So you’re meeting with, certainly law enforcement officials, I see city government people here. Who else?

Burns: District attorneys, chiefs of police, sheriffs, City Council folks, supervisors, just about everybody we can meet with.

Eye: What are they telling you?

Burns: That this is a serious problem. In some instances where is the federal government? In other instances – look, you’re not from here, we don’t need the federal government, why are you here? So it’s kind of a mixed message. This meeting has not been mixed, its that these grow houses are a serious problem and is there a will on behalf of the federal government to have federal, state and local come together and address it? My response was “Yes.”

Eye: I wanted to get to that. We have a whole tangle of contradictory laws right now – federal state and local. What do you see as the solution to that, to get any kind of unanimity or single message in the law?

Burns: I kind of oversimplify it, because in my prior life I was a district attorney in a state, but now I represent the federal government. It is illegal under federal law to possess, to smoke, to sell, to grow, to distribute marijuana. And there are a number of tools the federal government has. One of them is to arrest people, the other is to seize property, to send notice to these so-called dispensaries to tell them that they are in violation of federal law. Those are the tools that we can bring. I have to say in the same breath, its a big country and there’s a big strain on federal resources. There has to be some desire on behalf of the state and local officials and in some instances, the citizens, for that to happen.

Eye: Well, some would argue that infrastructure thats built up around here, with regard to the grow houses, the dispensaries, certainly the hydroponic shops, the head shops… All of that is so deeply entrenched in our culture, and has been for decades. It’s just not going to go away. It represents the supply side of a huge demand. What would you say to that? Do you have a realistic expectation of ending the demand and therefore ending the supply?

Burns: Well, I’d say a couple of things. First of all, drug use is down in the United States dramatically since 2001 by every barometer and indicator that we use. Primarily the national household survey. twenty-fourpercent reduction in marijuana use by young people 12 to 18 years old. Methamphetamine use is down, heroin use is down, cocaine use is down. So we know that when we push back, the problem gets smaller. A lot of people are cynical – “Oh it’ll never go away, there’s never anyhing you can do.” I don’t believe that. We’ve seen that since 2001. The second thing is that some would say that its so entrenched there’s nothing you can do. Others would say, like we were talking earlier I used the analogy of President Felipe Calderôn of Mexico. Everybody said it’s so entrenched, and the corruption, and the drugs, and the cartels, and the Zetas [armed criminal gangs that operate as mercenaries for drug cartels] and gatekeepers, and you’re never gonna fix it. They’re trying to fix it. They’re trying to take their country back. And, and in a sense, you may have to take your city back, you may have to take your county back.

Eye: Is it realistic to keep marijuana as a Schedule 1 drug, in with cocaine and heroin?

Burns: Yes it is, and I’ll tell you why. First of all, of the 20 million drug users in the United States, 75 percent singularly or co-use marijuana. So either we’re gonna talk about it or we’re gonna ignore about 75 percent of the problem. The second reason is, it is much higher in potency. One or two percent when I was growing up in the ’60s and ’70s, now averages 10 percent nationwide. As high as 30 percent we talked about earlier coming in from Canada. The next reason is that te initiation age when I was growing up, 18, 19, 20 is now 13, 12 and 11. You can’t talk to a counselor in this country, Republican or a Democrat or an independent or a Marxist, and they will tell you, political beliefs aside, everyone that is addicted to drugs in this United States, started with either alcohol and/or marijuana, and they started when they were 13, 12 or 11. That doesn’t mean everyone that used those substances goes on to be a heroin addict, but you don’t have to have an IQ over 120 to figure out that if you can keep young people off marijuana, you can keep them from being addicted for life. The last thing I’ll say is, we were talking about Nora Volkov, the head of NIDA, National Institute of Drug Abuse, who before said there is no correlation between smoking pot and rewiring and damaging the developing brain of young people, who now will tell you unequivocally that there is. Because of the higher potency, it is the same as cocaine and methamphetamine and heroin. They see it from the MRIs, the PET scans. They also are seeing psychosis and other mental problems from young people smoking this higher potency, which frankly should be called marijuana 2.0, drug. So yeah, it should remain a schedule 1. The FDA has said, and you can argue whether you agree or not, but we’ve relied on them since the 1900s when snake oil salesmen were selling stuff out of bottles from the back of wagons that this will cure this or cure that. And somebody said, “You know, we oughta get some smart people to tell if this is a medicine or not.” Now we have scientists and doctors that say yes, this is approved as a medicine, and eating dirt is not. Uh, they have said that smoking marijuana is not an acceptable, legitimate medicine.

Eye: Do we know that? Is there enough research to indicate that it has no medical efficacy? I can bring you chemotherapy patients who would tell you that it is the only thing that suppresses their nausea and gives them an appetite. So is there nothing to what they’re saying and feeling?

Burns: I’m saying that maybe that, the… Anybody can say something makes me feel better anecdotally. And I hear that a lot. “Marijuana is the only thing that makes me feel good.” I say you should try crack, because from what I hear, crack cocaine will make you feel really good as well. This is not about making people feel better, it’s about as a country and the effects it will have on all of us, all 305 million of us. Because someone tells me that “smoking crack cocaine releases my nausea and allows me to have healthier appetite,” does that mean that we legalize it nationwide, and that its available to kids in a greater number? We have to make those kind of policy decisions. And we ought not make them on people who say, “Me personally, it makes me feel better.”

Eye: I could argue that the only reason you’re hearing a lot of anecdotal testimony is that because there hasn’t been enough formal study to verify it or debunk it. Do you feel there’s been enough formal study to definitively rule out cannabis as a medical agent?

Burns: I would say yes, and a couple of reasons. One, they’ve never been able to quantify and put it in appropriate doses in order to deliver it. Number two, the crude delivery of smoking the weed alone, physician after physician, and scientist after scientist have said, “You have to be kidding me.” There have to be more efficient ways to do it. We have drugs now that will do what people say marijuana does for them in a much more efficient manner.

Eye: You may be aware of the FBI’s recent Operation Southern Sweep that came through here; I don’t know if you were or not. But it seemed to target one particular criminal enterprise, alleged criminal enterprise. But they didn’t really touch any medical things… they went to some industrial grow sites, and there were some grow houses. But that’s being interpreted as a signal from the federal government, that they are passively hands-off Prop 215 patients. Is that accurate, an accurate assumption?

Burns: I can’t talk, and wouldn’t. It would be inappropriate for me to speak on behalf of the FBI, but I can tell you on behalf of John Walters and the White House Office of National Drug Control Policy, our position is marijuana is illegal under federal law.

Eye: Our Planning Commission and our City Council are attempting to develop some land use regulations now to bring some order to this kind of roiling, Wild West marijuana situation that we do have in town. Are they wasting their time? I mean, what advice would you give these people? They’re spending a whole lot off time and effort trying to bring some orderly regulation to this. What’s your advice to them?

Burns: My advice is encouragement and support. As I said earlier, while the federal government can certainly help and assist when asked, this is ultimately going to be solved by the people who live here. Nobody from Washington is going to come here and tell you how to fix it. And when the problem becomes acute enough I think the people in the community are going to stand up and say, “Enough is enough.” And I can also tell you that there have been 200 to 250 cities and counties in California who have done just that. Passed ordinances saying, “We don’t want the dispensaries.” Why? Because the grow houses are what feed the dispensaries. Marijuana doesn’t just magically show up in the dispensaries, they don’t push a button and have it delivered by the marijuana dispensary delivery truck person. It come from these grow houses, and it involves millions and hundred of millions of dollars.

Eye: That’s true, and rather startlingly, two of the dispensary representatives admitted purchasing what they call “overages” from Prop 215 patients. Which is illegal, and our Planning Commission has said, we’re not going to approve it. Yet they asked for some kind of legalization of that. Any thoughts?

Burns: Yeah, the whole thing is a con. If you wanna call it what it is it’s a joke. It is ridiculous for anyone to sit back and think that there is some rhyme or reason to how this works. The whole idea is to get dope out the door, to sell it and to make a whole bunch of money. And whatever the story, or the tagline is along the way – well, it involves sick people, or we have a dispensary – look, even the author of Prop 215 has said, “This isn’t a bad dream, this thing has become a nightmare.” This in no way resembles what the idea was when the law passed, to get marijuana to sick people. It’s become wholesale distribution by traffickers and criminals.

Eye: This week, the state Attorney General’s office is going to come out with some new guidelines for medical marijuana distribution. [Note: The guidelines were not issued last week, for reasons unclear as we went to press. – Ed.] I think what they want to do, I was told informally by the deputy attorney general, is make the dispensaries what he called a “closed loop” that is a collective of Prop 215 people who have Prop 215 recommendations. That would theoretically end the retail side. Any thoughts on that? Did your office have any input to the state Attorney General’s Office on these guidelines?

Burns: No, under federal law it’s illegal. It would be inappropriate for us to make suggestions on how to engage in some activity that is illegal under federal law.

Eye: Well, the State of California Attorney General’s Office, then, apparently is fostering disobedience to the law, by their guidelines, are they not? I mean, they’re a bunch of lawyers.

Burns: Again, it’s illegal under federal law. I don’t know how to make it any clearer. And that’s part of the discussion we were having here as to why it’s so confusing. You know, again the federal government likes to defer and let states and local communities to solve their own problems and help when we’re supposed to, and we will. But I can’t tell you that we’re now complicit in helping and drafting law that violates federal law.

Eye: Well, some would argue that the federal government is continuing classification of marijuana as a Schedule 1 drug is responsible for most of the problems associated with it. It’s not the drug itself, but in fact the prohibition as it were keeps the price high and compels people to game the system to figure out ways to make a profit out of it. Whereas if it were either decriminalized or legalized like alcohol we could regulate it in some rational way. Like we have the state Department of Alcoholic Beverage Control, for example, which does this. Do you have any thought on that?

Burns: It’s illegal now, and there are in America more young people in treatment for addiction to marijuana, then for all other drugs combined. It’s illegal now.

Eye: It’s illegal now, but, I mean….

Burns: Let me just finish…

Eye: Yes, please

Burns: There are 125 million Americans that to some degree use or abuse alcohol. There are 50 million that smoke, not withstanding the warnings on the cigarettes, and we took the Marlboro Man off television, and city after city have no passed laws banning… please don’t smoke, don’t, you know, this is terrible for our health. Fifty million still smoke. Right now we’re about 16 million smoking marijuana, 16 million. So if you put it in perspective 125 and 50, and now 16. I would argue to you that if we legalize it, and we make it more available 16 is going to quickly become at least 50. You’ve seen the problem you’ve had here with grow houses. Multiply that across this country. No, I think it would be a disastrous thing.

Eye: Well, I could tell you without question that there are innumerable, tens of thousands, hundreds of thousands, millions of people who smoke marijuana on a regular basis, are fully functioning contributing citizens. Other than the fact that they do something that the government tells them is illegal. They’re contributing, they’re motivated, they obey the law, they vote, they pay taxes, they have children and they smoke marijuana. What about that? Doesn’t the federal government’s prohibition of this drug simply put a lot of profit in it for criminals, breed criminal enterprises and also breed disrespect for the authority of government?

Burns: Well, our job at the White House try to get the numbers right. On the 305 million, as I said, it’s under 20 million are current users of marijuana. Whether or not they are functioning or not, there are others that say, they sit on the couch and eat Cheetos and I’ve talked to hundreds of moms and dads that have said I wish you could do something, because my son has done nothing in 25 years but sit around and smoke dope. So for every person you have that you say is a taxpaying successful person, I could give you I think five of a mom and a dad or a loved one say, “My god, this addiction to this drug is a horrible thing.”

Eye: Federal enforcement of cannabis laws is widely viewed, at least in Arcata, as arbitrary, capricious and ineffective. I don’t think there’s any argument [to counter the assertion] that it’s ineffective. We had Operation Pipe Dream in 2001, where they came in and raided a glassblowing place on South G Street, then they went away. Meanwhile, we have dispensaries up and operating, we have grow houses and we don’t see much of the federal government. Are you satisfied with the federal government’s enforcement approach?

Burns: Well, part of it is first and foremost, it’s a state and local issue. If you’re satisfied with it wuthin your community and nobody’s calling and asking for any help, I can tell you, in other parts of the country they’re just smiling in a sense, saying, “You’re getting just what you wanted, you said you were compassionate people. You said everyone should be able to grow dope and smoke dope and now you’re having homicides and robberies, now you’re having people walking the streets with guns, now you’re upset because they’re growing near schools, now you’re upset because you have a reputation that is ridiculed across the nation.” You didn’t ask for federal help, in fact you said federal government please stay away, now we have people saying, “Where have you been?” Now that it’s gotten so acute, now that it’s such a ridiculous state of affairs here with the growers and the gun-toters essentially telling everyone how we’re gonna do things. Now you say where’s the federal government, well I guess what I’m saying is, I’m here today, and we’re here listening, and we talked to the U.S. attorney yesterday, we’ll meet with the DEA Sac tomorrow, I’ve talked with people in Washington and if is legitimate desire to now partner as we do in other parts of the country, we’ll do our part.

Eye: Would that possibly include some sort of drug enforcement action by the Drug Enforcement Agency in Arcata?

Burns: That would include everything the federal government has. To include sending official notices to the dispensaries that you are in violation of federal law to the owners. That they’re in subject of losing their property, which I predict will happen soon. That includes if there is a desire by law enforcement to add DEA to send assets and resources here, that includes asking the state of California if you really believe this Proposition 215, enforce it. Because my understanding is you’re not supposed to make a profit. Yet they’re making hundreds of millions right here in Arcata and Humboldt County. So, let’s look each other in the eye then and be honest: this is a con, this is a joke and if we’re serious about shutting it down it shouldn’t be that difficult.

Eye: At risk of having a circular argument or discussion – if I am, stop me – people could argue that those folks walking around with guns and all the illegal money and the grow houses is because of the federal government’s laws; that if they had a system for regulating it like alcohol, which they do – which is a dangerous drug, a very dangerous drug, responsible for all kinds of mayhem and things – and yet it’s regulated and we don’t have stills, we don’t have the kinds of things we had during prohibition of alcohol. I’ll just come at that again: Wouldn’t it be better to have some kind of organized regulation of this substance?

Burns: And I would say again. It is a drug that serves no legitimate purpose. Some could say we know the trails and the tears and the death of alcohol so the argument is what? Well, we got one terrible thing, let’s just thumb our other thumb with a hammer. Why not? You know, this one’s terrible, why not have another terrible one. And again 125 million abuse alcohol, 50 million smoke, and we’re still under 20 million that smoke marijuana why as a policymaker, why as a parent would you want to unleash that on this country? Because you know it would double immediately.

Eye: The federal government actually does have a very small program through the University of Mississippi to supply marijuana. I think it’s 300 cigarettes a month to a small number of individuals. Why does it do that? How can we reconcile that with its classification as a Schedule 1 drug, and the kind of things you’ve been talking about?

Burns: That goes back to the people that said, “You know what, we really oughta study that more.” So we do, and we set up a program, and we give a small number of people marijuana and I know most of them by name because they show up in every hearing that I go to and say, “I’ve been smoking marijuana for years and the federal government gives me this marijuana.” Well, that was an attempt to do what the critics said. Why don’t we study it more?

Eye: We do hear that international drug cartels are involved with the cultivation on federal lands and forest lands. Do we have any information that they might be involved in grow houses as well?

Burns: I don’t think there’s any question that they’re involved, not only indirectly but in many cases, directly. If one in this area is sympathetic to using or growing marijuana I would encourage them to take a trip to your national parks and see how literally Mexican drug cartels, primarily from Michoacan have invaded your public lands here in California. And the reason they’ve done it is because it’s easy to do, and there’s already the market. And they don’t send it back to Mexico. They send it to the dispensaries.

Eye: One of the arguments that the decriminalization people, the dispensaries make to our Planning Commission and City Council is the fact that it’s entrenched in Arcata and has been for decades, and that now with this massive infrastructure that’s built up, they’re paying a lot of taxes. We have a lot of retail establishments, the hydroponic shops, we have four or five in Arcata. They’re paying a lot of taxes. The dispensaries are paying huge amounts of taxes, ending that would just undermine us financially. The economic impact would be huge if we withdrew that. Any thoughts?

Burns: Put a price on some mother and father’s 16-year-old that’s now addicted to heroin because traffickers from Mexico come up to grow dope in your community and brought heroin along with them cause it’s a cash crop. I think they would tell you put a price tag on my daughter being addicted to heroin, or to high-potency marijuana. You weigh it out. If the money is worth more to you, if it’s better to have these people engaged in illegal activity, keep doing their job and slop it around. Yet we have young people in this community that I saw driving in, sitting on the sidewalks and on the curbs stoned out of their mind. If that’s OK for you, if the money means that much for you, protect their interest, protect those grow houses.

Eye: Philosophically… you’re a Constitutional law teacher, I believe?

Burns: A little bit.

Eye: …and the whole premise of America’s freedom and self determination. How can we reconcile that with the government telling us what we can ingest and what we can’t?

Burns: Well, I think, first of all we settled it Appamattox, the fact that we’re gonna have this thing for the Supremacy Clause, and when push comes to shove we’ll decide on certain issues who will prevail, the federal government or the state. And on many issues it’s the states, and for the most part, I think most Americans would agree that it should be that way. But on some issues that affect all of us for the good of the order we have to come to some consensus. And not everybody’s happy, are they? And every time we don’t get to do what we want, I know there are states where they really really like to marry young girls, 12, 11, or 10 and they would argue to you, “How dare the federal government preclude us from engaging in certain activities?” Well, in some instances we just say you’re quote constitutional rights and your freedom to do certain things gets trumped by the rest of us who say, “You know that’s just not a good idea.”

Eye: Let me just step back on this, I think I touched on this briefly but in a different form I’d like to throw at you. We, as we know marijuana, we have Reefer Madness, we have the whole jazz thing in the ’30s going up through Cheech and Chong and George Carlin and it’s so interwoven into our culture.

Burns: Oh that’s OK. I was sorry George Carlin died, by the way.

Eye: We all were.

Burns: He was funny, I don’t care what… he was funny.

Eye: If you’re suggesting marijuana can really be expunged from our culture and our real world here on the streets, I think there are some people who would say, “What are you smoking?”

Burns: You know what? It’s just a matter of taking a position and pushing back a little bit at a time. I think in America, we do that. There are so many cynics that say, “You know, you put one trafficker in jail ten more will take his place.” Not true, that’s one trafficker that won’t be there. Or you know, “Why are we even doing this, you’re never gonna stop this, people are?” Not true. If we can reduce drug abuse in young people by 25 percent since 2001 that’s 850,000 kids that are not smoking dope today that were in 2001. If you wanna know the real challenge, it’s the Baby Boomer era. If you saw Little Miss Sunshine, the little girl in the car is not smoking dope, Alan Arkin is the one that’s got the problem. Baby Boomers are the ones who continue to use drugs, and continue to increase to use drugs and they are the ones who are in positions of authority in some parts of this country. And they’re the ones who are saying “Aw you know, what’s wrong with…?” And my daughter thinks we’re nuts. She thinks these baby boomer people are, what are you smoking. I like to work out, I don’t want to smoke something. Why do they tell me that this should be OK? My generation gets on the Internet we see the brain scans, why are people your age, dad, the baby boomers always talking about when they were stoned at Woodstock, ha ha, or high on this, hoot hoot, or LSD or… They think we’re the ones that didn’t get it. They wanna kinda have a healthy long life. They’re talking about stuff like vitamins and working out and going to Humboldt State and getting a good education and how competitive it is. It’s the baby boomers that continue to be the problem.

Eye: Well, I was going to ask you to sum up with any advice from the federal government for both our City, as it tries to develop some land use policy for this and’or to the people of Arcata.

Burns: It would be this: Defer 100 percent good judgment of the people who have been elected and appointed. To know that I’ve passed my card out, and when called upon we will come and assist in any way that we are asked. But in no way or fashion would I or anyone else come in here and say that you should do this or do that. We should be looked upon as a resource and when they call I answer my phone, and I’ll call them back.

Eye: Mr. Burns, Thank you very much.

Burns: Thank you very much. I enjoyed that. Thank you.

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