Alison Holcomb is known as the architect of marijuana legalisation in Washington state and was labelled ‘pot momma’ by the press. She spoke to Simon Day about leading Washington state to legalising cannabis.

Because the government wasn’t going to do it, lawyer Alison Holcomb had to convince the public of Washington state to legalise cannabis themselves. In around half the US states, including Washington, voters have the power to pass laws at the ballot box. Her campaign focused on one block of voters. While a third already supported legalisation of cannabis, and a third were vehemently opposed and in fact supported tighter criminal sanctions for drugs. But another third sat in the middle, undecided – aware of the harm drug laws were doing, but unsure what to do about it. She drafted a bill based on alcohol regulation – age limit of 21, strict licensing rules, advertising – that she hoped would help them understand what cannabis law reform could achieve.  

“What they understood was that arresting people for cannabis use was a waste of public safety resources that could be used for greater public priorities, and it also enriched the black market,” says Holcomb. “We are sending all of this revenue to people who are dangerous. Being able to undercut the black market was a big one, then finally tax revenues. People were interested in those three messages.”

In November 2012 Washington became the first US state to legalise cannabis, when voters passed Initiative 502, with a 56% majority. It was a hard fought victory after years of education programmes and campaigning. Holcomb faced personal attacks over the concessions she felt she had to make on the bill in order to drag those voters towards drug reform.

“It was a difficult journey, but it continues to be one of the greatest honours of my life to be able to do that work because of knowing who I was doing it for.”

Despite the compromises she had to make, she knows the law is keeping people out of criminal justice system, and changing attitudes about drugs and drug users. She hopes this change in policy, and the evidence of the outcomes, can be the start of the end of the War on Drugs.

You’ve said “the War on Drugs has taken what it means to be an American, to live in hope to live in dignity and live in freedom and turned it on its head.” What does this mean?

I think the story that we tell ourselves about the United States of America, and it’s a story I choose to believe because it’s the essential goodness and hope of humanity, we believe that every individual should have the opportunity to live to their fullest potential. The extent that the government has any intersection with you, should be to help make that easier. Government is essentially there not to hamper you but to help you. To create safety but to enforce freedom. I think the US is a place where we believe in individual redemption. That everyone can make mistakes and work themselves back from it.

The War on Drugs it strips away fairness. There’s no fair response to the individual. Whether you are a young person who is experimenting with drugs and you happen to be in the wrong time and the wrong place, or you have the wrong coloured skin. The response of the War on Drugs is an outsize punitive response that affirmatively derails your life for, simply by charging you with a crime.

The criminal justice system, at some point we believed that it is a correctional facility, and now it is nothing more than a place of degradation and humiliation and permanent trauma. Nobody who comes out of the criminal justice system is better off than when they went in. For a country that wants to hold itself out as inspirational and a place where the full independence of the individual is respected and facilitated the War on Drugs incentivises our government to do quite the opposite. To interfere in people’s lives, to destroys people’s lives and get rich of it in the process.

How did that end up with you in Washington state at the head of the movement to legalise cannabis?

After graduating from law school I went to work for a commercial litigation firm for a couple of years and did not feel as though the work was terribly satisfying. It just so happened that a friend of mine worked for a very small criminal defence firm at the time and they had an opening. This firm focused primarily defending people accused of drug crimes. The overwhelming majority of the cases that they saw were cannabis cases. And through the process of essentially meeting the people who were getting pushed into the system and their families, and learning the personal stories of the impact of the criminal justice system on people who were growing cannabis, selling cannabis, using cannabis, I began to grow increasingly concerned about our government’s decision to use the criminal sanction as the tool to address what was in essence a public health question.

I saw my role when I went to work for the ACLU as being that educator. But really what it was about was raising public awareness first about the harms that were resulting from the laws as they were written and as they were enforced, but also building the demand from within the public for change. Finally, strategising and fashioning the policy and the campaign tactics that would allow people to see that this level of change was possible and within their power to effect it.

It wasn’t easy for you to get the bill passed, and you faced opposition from what you thought would be friendly faces. There were some pretty nasty things said to you. It must have been emotional?

I think those years of experience in criminal defence witnessing first hand the experiences of the people who were caught up in the system are what continued to serve as my north star during the campaign. There was nothing that people could say to me or about me that ever was as hard as sitting in your office listening to a father tell you the story of the task force that was dressed all in black and took down the front door of their small home just before dawn, and watching his young teenage son run out of his bedroom, and these huge officers pointing semi automatic weapons at his son and yelling at him to get down on the ground, and the father thinking he was about to watch his son get shot in his head. And having the father break down as he is telling you this story.  

When you’ve seen that, it really doesn’t matter, because that is what you are doing it for. You’re worried about these families that have been absolutely devastated and traumatised and their lives upended. That made it easy to stay focused and easy to be disciplined. Because it is really not about you and it is really about securing the win.

It was an interesting journey and a difficult journey, but it continues to be one of the greatest honours of my life to be able to do that work because of knowing who I was doing it for.

Why did the law need to change?

Is there a fundamental right to intoxication written into the Bill of Rights to the US Constitution? Arguably no. But a significant collateral consequence, and some people would argue the exact intended consequence of the War on Drugs, is to impact a whole host of other civil liberties: the right to vote; the right to be free from discrimination based on the colour of your skin; the right to have privacy in your home and in your communications; the rights against unreasonable search and seizures; due process; you could even argue cruel and unusual punishments given the state of prisons in the US.

There are two parallel tracts where those indirect violations of civil liberties are happening because of the War on Drugs. One is the issue of race in the US. In essence the War on Drugs is really nothing more than a proxy for the Jim Crow laws and the discrimination and segregation that were explicitly lawful up until the passage of the Civil Rights Act in 1964.

After the passage of the Civil Rights Act that outlawed discrimination in the US, using drug law enforcement in a racially disproportionate way allows for legal discrimination against people of colour in the US. Drug use rates are roughly equal across all races and ethnicities, but if you look at who gets arrested and who gets prosecuted who gets incarcerated, who winds up with a criminal conviction, that has debilitating collateral consequences for employment, housing, voting, parental rights, and it is disproportionately people of colour and especially black Americans.

In Washington state before we passed initiative 502, and even after passage of initiative 502, data showed that black Washingtonians, were three times as likely to get arrested, three times as likely to get prosecuted, three times likely to get incarcerated. At every stage of the criminal justice system. There are some cities where the disproportionality is like 12 to 1.

The other thread is the nature of drug crimes. Drug crimes are fundamentally quite different from any other act that we call a crime. No one’s complaining about the transaction that occurs there. The only way that police get involved is if judges give them increasingly invasive authority to surveil us, to tap our phones, to pay informants to engage us in transactions.

That is the second area where we have seen civil liberties get violated increasing degrees, because we have decided the criminal sanction is the most appropriate strategy to deal with the fact people explore intoxicating substances.

How surprised were you to encounter the opposition you did from within the cannabis community?

I wasn’t that surprised because the people who attacked me were by and large people who were functioning within the illicit medical cannabis community. There were plenty of people who were making money off of the laws the way that they were and creating a regulatory system was undoubtedly going to cut into their profit margins, and might even result in some of them not getting licences. I think the way that the Washington state regulatory system rolled out was imperfect by a number of different measures, but by in large in the people who had the most complaints and the most vehement attacks, were the people who were self interested.

What would make me angry was the way that some of them would recruit vulnerable patients to their cause by telling that they would no longer have access to medical cannabis and essentially using fear to traumatise patients that were really vulnerable and really concerned that their health was in jeopardy.

A number of people who were my touchstones, people from the community who I thought of as being genuinely committed to the welfare of patients, who understood that as imperfect as this law was going to be – and it had to be imperfect – the only way we were going to be able to get this law passed was to thread the needle between idealism and public opinion, and compromises were made. They understood and saw that for what it was, and saw it as the first step forward.

How did you convince the public that drug reform was the necessary and legalisation was the right way to proceed?

The Washington ACLU executive director Kathleen Taylor she was a visionary she knew back in 2000 that it was time to end the war on drugs. She has very clear vision that the way we end the war on drugs is we have an incremental strategic approach and we start with cannabis. She knew that in order for this to work you were going to have to meet voters where they were. She knew that legislators weren’t going to take the lead on this, the only way that the laws were going to change was through a ballot initiative. That is an important factor, Washington is one of about half of the states in the US that have the ability for the voters to actually pass a law themselves.

Our research was telling us was that Washington state voters broke down into about a third. One third already supported us and wanted to go fully to legalisation and regulation. You had another third at the opposite end of the political spectrum, that were the hardliners that thought if anything our cannabis laws need to be harsher. And then you had the middle third who were our targets, who we needed to move closer to the liberal end of the spectrum, who knew the laws as written weren’t working, who knew they were doing more harm than good, but they didn’t know what to do. They were really nervous about what change would look like and those were the people who we had to draft our law to. They were concerned about youth use, they were concerned about stoned driving, they wanted to know what are the limits on this going to be, who can buy it, who can sell it.

What we discovered when we started talking about something that looked very much like the alcohol regulatory model that they were very familiar with in Washington they could get head around that. That was how we started to craft the policy and we found the people who could talk to them about public safety and protecting youth in a way that is convincing.

The middle ground that you had to reach, how has it worked in practice? Chair of the Canadian task force for drug reform, Anne McLellan, talked about visiting Washington and realising mistakes will be made, and they will have to be ironed out. How is that process going?

There are still quite a few creases that need to be ironed out. The two biggest policy compromises that we made were to include a per se standard for driving while impaired. The per se standard means that if you are pulled over driving while impaired and the officer has reason to believe that cannabis is the main cause of the impairment you can be asked to provide a blood sample, and if the test comes back at or above a certain level of THC, that evidence in and of itself is sufficient to find you guilty. But, cannabis does not have the same impact on people, the same linear progression of intoxication isn’t tied to THC as alcohol for example. Arguments have been made, the science is not solid yet, but there is definitely an argument to made that heavy daily users, like patients for example, might be at or above the legal level of THC and not actually be impaired.

The probably more problematic compromise that we chose to make was not to allow for personal growing. Washington state is now the only state of those that have legalised cannabis to not allow personal home growing by adults. That most significantly impacts patients. Those who have spent a lot of time figuring out how to grow exactly what they need don’t have protection.

There is still a separate medical cannabis law in Washington state, but it is restrictive and patients who want to be able to grow for themselves at home and not risk arrest have to register with the state. The reason that is important is because cannabis use and cannabis growing of any kind still remains illegal under federal law. Patients are understandably concerned about having to provide their information to a government database as potential evidence of growing cannabis at home. That is the fix that I would most like to see is for Washington to simply legalise growing a limited number of plants for all adults, so that patients don’t have to worry about registering with a government database.

That is quite fascinating for us in New Zealand where we don’t have federal and state law. So in place like Washington state where the local government have legalised cannabis, could the FBI show up and arrest people for possession?

Yes.

But there is an unspoken agreement that this won’t happen at the moment?

Yes…. well….

When Washington and Colorado both legalised cannabis back in 2012, we didn’t know what the federal response was going to be. It wasn’t until August of 2013 that we heard from the former Deputy Attorney General Cole, that in fact the federal government would allow these experiments in Washington and Colorado to proceed. He outlined eight different policy points that the federal government would be watching carefully to see whether or not the states were living up to their promise to keep cannabis out of the hands of children and from crossing state lines. The current attorney general could very easily renege on that. It was nothing more than the executive branch saying this is the gentleman’s agreement that we are willing to strike at this moment.

Could federal drug law change?

Polarisation in the US has increased tremendously over the last four decades, and Congress is the place where good ideas go to die. So I don’t see federal law changing any time soon. I think we will continue to see change happening at the state level. This past election cycle with California, Massachusetts, Maine and Nevada all moving to legalisation and regulation, it was huge.

It is a treacherous time to try and guess what our federal government will do on any issue now. Attorney General Jeff Sessions has not been a reasonable person at all on drug law enforcement. I don’t think we will see any progress towards explicit reform of federal laws in the near term; my hope is that there will continue to be a tolerance of choices that are made at the state level. That’s where we will continue to see evolution and expansion of liberties.

Despite your concerns about how the law was rolled out, is it achieving the things you hoped it would?

Yes. Because what I wanted to achieve was to crack open the possibility that moving in this direction would happen outside of Washington. We now have 20 per cent of the US population living in states that have legalised and regulate cannabis.

For me the policy goal was to stop treating people like criminals and ultimately I want to see the US roll back the War on Drugs, across the board for all substances, and start to repair some of the damage it has caused worldwide. The fact that we seem to continue to move in that direction tells me that the policy has succeeded.

And Washington state has become a safer place? It’s resulted in less arrests related to cannabis?

In absolute numbers yes. But the racial disparities are still there. There are a lot fewer – we went from 9000 arrests for possession every year to 200. The numbers were staggering in terms of the drop. But if you dig into that small sample size you still see that black people are much more likely to be arrested and prosecuted for these crimes than white. So there is still a lot of work to be done on that front. The movement towards a public health oriented approach across the board is continuing to gain traction.

The idea that the criminal sanction might not be the best tactic for addressing drug use is the most important idea that we can plant in people’s minds, that there are others ways to prevent people from progressing to problematic drug use. To minimise the harms that attach to drug use of any kind. We have the ability to do things much better than the way we have been doing things up until this point.

A fresh way to deal with drugs is needed more than ever in New Zealand. The Drug Foundation’s roadmap for reform Whakawātea te Huarahi – A model drug law to 2020 and beyond is available online.