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Cultivate in Leicester displays its wares on the first day of legal sales of recreational marijuana in November 2018.

Opening the Weedgates III: The cruel and unusual legal world of recreational marijuana

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By Friday, Jan 4, 2019 Life In the Berkshires 10

Editor’s note: This is the third in a series of articles examining the implications of the legalization of marijuana. Part I and Part II are also available.

Recreational marijuana is legal in Massachusetts, but it will be living in the closet for the foreseeable future. Though only three out of the 50 United States—Idaho, North Dakota and South Dakota—still impose a total ban on marijuana, as a nation, we’re still waging the war on drugs that started with the Nixon administration, and our policies reflect deep ambivalence.

Photo courtesy Getty Images

At the federal level marijuana is—in 2018 as in 1971—classified as a Schedule 1 drug. Schedule 1 is the category reserved for the most dangerous substances that, according to the Drug Enforcement Agency, have “high potential for abuse, no currently accepted medical treatment use, and a lack of accepted safety for use under medical supervision.” Other Schedule 1 drugs include heroin, LSD, bath salts and ecstasy. (Fully approved by the U.S. Food and Drug Administration, however, is the blockbuster opioid OxyContin and its variants, the effects of which are identical to those of heroin, and which is estimated to be responsible for the deaths of over 200,000 Americans since 1999. To confront this epidemic, President Trump just formally appointed his “drug czar,” James Carroll, a lawyer who has no background in the public health or drug policy fields.)

Because no federally backed financial institution is willing to manage money earned with a Schedule 1 product, storeowners will have to deal in cash and debit cards for the time being. Tax burdens will likely be a much bigger headache for them. Cannabis businesses must follow an obscure 1982 law, tax code 280E, that denies anyone “trafficking in controlled substances” the deductions available to any other for-profit entity. The only deduction a retail marijuana store will be permitted to take on its income taxes is for the cost of goods. Those extra costs are just at the federal level. The state imposes a 6.25 percent sales tax, 10.75 percent excise tax, and most towns have selected to collect a maximum 3 percent local tax. Businesses hoping to turn a profit in Berkshire County are also encouraged to make a voluntary annual contribution of $10,000 to a local organization that deals with drug-related problems. (Railroad Street Youth Project in Great Barrington stands to benefit in this regard.)

Still trickier to navigate are the rules imposed on cannabis businesses by social media companies. Marijuana sellers are permitted to post content with the aim of education or advocacy, but not with the aim of promotion. How advocacy can be distinguished from promotion is anyone’s guess, and has predictably already led to problems. On Great Barrington’s own Theory Wellness’ Facebook page, administrators felt the need, on Dec. 2, to point out to their 2,000-plus followers the rules of the game.

“This account is for educational purposes for audiences who are 21+, nothing is for sale,” they wrote. “Comments regarding the sales or purchases will result in immediate banning. This is in accordance with FB community guidelines.” Someone posting on behalf of or in response to Cultivate, the retail marijuana store in Leicester that opened in November 2018, must have crossed this ill-defined line, because that business had both its Instagram and Facebook accounts shut down entirely, along with those of several other medical dispensaries around the state.

Theory Wellness in Great Barrington. Photo: Terry Cowgill

That’s the tip of the iceberg when it comes to the special rules related to the cannabis industry. Though Great Barrington might soon be hosting four or five cannabis retail stores, you are likely to have a hard time figuring out what they sell. As anyone who’s passed by Theory Wellness, just north of the Price Chopper Plaza in Great Barrington, knows, it’s difficult to guess from its name, dark signage and inscrutable geometric logo what sort of business is housed there. Health food store? Private clinic? Beautician’s spa?

Whereas Tom’s Toys’ windows are filled with toys; Church Street Trading Company’s are filled with clothing; and Gorham and Norton’s are filled with cheeses, fruits and bottles of champagne, pot stores must ensure “that all marijuana products are kept out of plain sight and are not visible from a public place without the use of binoculars, optical aids or aircraft.”

This, then, is our backdrop as recreational marijuana becomes as legal a commodity in Berkshire County as champagne, without champagne’s 85 years of legal precedent to build on. We are constantly reminded just how new this industry is and, as community meetings have shown, citizens are as all over the place on pot as our laws are. As one Berkshire County business leader put it, “One third of the people I talk to are excited about the potential, one third are terrified and one third don’t know what to think.”

We in our blue bubble reflect the country’s schizophrenic attitude about marijuana. This was demonstrated on the afternoon of Dec.11, when WAMC’s late edition of local news ran two consecutive stories. The first announced that the third retail pot operation, in Salem, had just received its final approval to open. The next story was from police in Manchester, Vermont, reporting the seizure of 50 pounds of marijuana with a street value of $200,000. The owners of the store in Salem stand to earn, if the success of stores in Leicester and Northampton are any indication, a lot of money, while the criminals busted with their illegal stash can go to jail for as long as 30 years and be fined as much as a million dollars.

Which brings us to the most brutal consequence of the war on drugs, which has nothing to do with onerous tax laws or weirdly empty shop windows: With less than 5 percent of the world’s population, the United States has over 20 percent of her incarcerated population, with the majority of those imprisoned on drug charges. The cumulative negative impact of this country’s criminal justice priorities of the past four decades can never be assessed. It is far too great for an accounting, and has hurt African-American citizens the most. According to the NAACP, “African Americans and whites use drugs at similar rates, but the imprisonment rate of African Americans for drug charges is almost 6 times that of whites.” Matthew Allen, field director for the Massachusetts branch of the American Civil Liberties Union, says, “Drug use should be approached as a social issue, not a criminal justice issue.”

Image courtesy Federal Bureau of Prisons

On this front there are two pieces of good news. Included in the recently passed Farm Bill is a provision for the Department of Agriculture to regulate hemp, which is the fibrous part of the marijuana plant used to make, among other things, paper, fiberboard and rope. Perhaps this move signals a recognition at the federal level that if you can’t beat ‘em, maybe it’s time to join ‘em.

A bigger, though partial, success story is the passage of the First Step Act, criminal justice reform legislation that had Democrat Cory Booker embracing Republican Chuck Grassley, and the ACLU joining forces with the Koch brothers. It passed in December. Among the practices that will no longer be permitted is the restraint of pregnant and postpartum inmates, and the placement of inmates in prisons more than 500 miles away from their families. The act gives judges the leeway to impose reduced sentences on low-level, nonviolent drug offenders. It’s just the first step, however, because Democratic senators had to give up many demands in order to get sufficient Republican approval. One key demand that might have been a game-changer for dozens, if not hundreds, of Berkshire County families had been included in a bill proposed under former President Obama. As the New York Times reported Dec. 18, “The 2015 bill made all sentencing reductions retroactive to include those currently in prison, but the bill passed on Tuesday limits most of those changes to future offenders.”

If that retroactive provision had passed, we might have gotten one step closer to acknowledging and redressing the prosecutorial overreaches of the past all over the United States and also here at home. In 2004, the Berkshire County Drug Task Force and district attorney’s office rounded up the “Taconic 18” in the parking lot of the Triplex movie theater in Great Barrington. Among other punishments, mandatory minimum sentence was imposed on a 17 year old who traded 1.1 grams of pot for a $20 bill so he could buy a burrito. The “school” that qualified the parking lot as a Drug-free School Zone was a preschool program in the basement of the Congregational Church, closed for the summer and many hundreds of feet away. That kid, Mitchell Lawrence, spent two years in jail, and will be cursed with a criminal record for life. “The only thing unusual about Mitchell,” narrates a video (see below) about the case by the Drug Policy Alliance, “is the color of his skin. 97 percent of all people arrested in Drug Free Zones aren’t white.”

Look for more on both the social justice ramifications of marijuana legalizations, and the Taconic 18 in upcoming installments of this series.


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10 Comments   Add Comment

  1. Jerry says:

    Jerry is about to get high often.

  2. Jonathan Hankin says:

    Thank you, Sheela, for your thoughtful article. I have every hope that our new DA will bring a more careful and compassionate approach to this long time vexing issue. Perhaps some day our Mass regs will have to be rewritten to make them compliant with a more lenient and enlightened federal law. Fingers crossed!

  3. Ralph Brill says:

    Ms. Clary’s article is informative, but some details are way off. The President did Sign the 2018 Farm Bill on 20 December 2018, which included provisions that allow Hemp to be Legally Grown and Processed in All States. Further that Bill separates Hemp from Marijuana and treats it like a commodity crop as it once was prior to 1938. Farmers can now get Bank Loans, Crop Insurance, etc. Hemp is not just the “fibrous part of the marijuana plant” – it is a Cannabis Plant with Less Than 0.3% THC. For the past couple years, you could go into any Trader Joe’s and buy Hemp Seeds, Hemp Milk and maybe now CBDs which come from the tops of the plants. It is a lot more than just rope and was grown for hundreds of years legally in MA to make the Sails for our Whaling and Slave Trading Ships.

  4. peter greer says:

    Great article Sheila. We’ve come a long way towards rational drug policy in large part due to the 30 + yrs of effort by DPA and other groups who have been on the front lines of this “war” .The impact on minorities and poor communities hasn’t been fully documented, but a good source is the book by GBs own Dr Ernie Drucker http://www.plagueofprisons.com/author.html . Dr Drucker formerly head of epidemiology at Montefiore Medical Center/Albert Einstein College of Medicine; in the Bronx , uses his skillset to examine the arrests /incarceration/and legal processing to demonstrate how these laws decimate rather then help the individual and their community much like a medical plague. Dr Drucker is currently researching Cannabis as a gateway drug; a gateway to life as a substitute or collateral treatment for oxy…. We need to assemble hard data on uses and effects of the new wave of cannabis use to inform decisions regarding the type of strain and dosage for both user and medical/psychiatric community . We are also going to need a few more ice cream parlors!

    1. Ernie Drucker PhD says:

      Its great to see the Edge focusing on the introduction of legalized marijuana in New England. Peter Greer , former hedge fund manager who lives in the Berkshires, has been active in criminal justice reform for a long time – and is one of the leadership people who initiated and led the response to Great former Barrington DA David Capeless – who engineered a police sting operation against teenage marijuana users in Town square in 2005 – 2007 . This campaign was directed at former Berkshire County prosecutor David Capeless , who orchestrated this war on drugs in the Berkshires. Thanks to the work of Greer and others , Gt Barrington led a drive and Petition signed by over 5000 local residents opposing Capeless and his drug policies – many of whose children had been victims of the sting operation in the Berkshires – and who spoke out and organized against this entrapment and its policies aimed at young marijuana users in and set the stage for the current program of legalization in Massachusetts .

      With the advent of legalization of recreational use of cannabis in Massachusetts, we now have the opportunity to make an important shift in the basic conceptions of how we can best regulate the many uses and benefits of Cannabis and other psychoactive substances – of which marijuana is the most prominent case.

      There is also now a widespread Renaissance and reintroduction of many other psychedelic drugs – stimulating new initiatives in research and education about the now legal Marijauna . Marijuana and some other previously illegal drugs are now are now being recognized as effective therapeutic agent s. A good example of this new direction that drug use and policy are taking includes Ketamine – which existed for decades as a” dance drug ” called Special K . Ketamine when administered in the proper schedule and dosage patterns , has now been discovered to produce impressive results in treating depression.

      Likewise , the growing recognition that marijuana can have beneficial effects on users health and well-being , will soon be extending to many other formally prohibited psychoactive drugs. The previous beliefs that these drugs had only adverse effects on the psychological and social experience of users , is fading away – and we will soon see studies that recognize that ( like Cannabis) many psychoactive drugs levels have untapped therapeutic uses . Decades of criminalization carried with it the suppression of accurate and trustworthy information about the many positive uses of many currentky illegal drugs.

      We are now at the beginning of a new era in which the “recreational” use of Marijuana is deemed acceptable and will spawn new laws to encourage the application of the legalization model to other psychedelic drugs still criminalized .

      From this point of view the onset of legalization of Marijuana Is exactly the moment to document in great detail patterns of its use and their consequences for individuals families and community .

      We will now have the opportunity to monitor and document the characteristics of new Marijauna-user populations and study the patterns of their use under legalization and the consequences of those patterns of use when legalized ..
      To that end we are now working on creating a monitoring system among Cannabis users to establish a framework for data collection and analysis of Marijuana use patterns and results under legalization.

      These new patterns of use and their consequences under legalization policies and practices will soon be the subject of a new initiative some of us are developing for m Massachusetts users . We will do this baseline research in collaboration with Mass organizations that feed the growing markets – e.g. Theory Wellness . In our new studies we will collect and analyze data on psychoactive drugs by close surveillance of these new legal markets and the population characteristics of those who use Marijauna . This reflects our new perceptions and attitudes about the introduction of legalized drugs which are now open to public access and the opportunity to experiment with and document patterns of use and their outcomes .

      We believe it is essential to use these data from following the early years of usage of legalize drugs to Create a new users manual for legal drugs.

      As a patient myself for almost a year, in the medical marijuana program of New York State, I have had experience using medical marijuana to treat a debilitating leg injury, while others have been able to get successful interventions for PTSD and a number of other important conditions that will yield to intervention with Marijauna and other psychedelics . If used at the proper dosage levels and administered legally , these programs will produce a new awareness of what the correct timeframe of treatment regimes should look like – and support the growth of evidence -based models for studying the characteristics of many drugs which may soon be widely publicized and better understood.

      Ernie Drucker

  5. Erik Bruun says:

    Bath salts?

    Another excellent story on this complicated topic!

      1. Erik Bruun says:

        Thank you Martin! Interesting, concerning.

  6. H. White says:

    I find that we as a nation with the best medical equipment and knowledge have to resort in deceptive fallacies involving drug problem. We can’t distinguish between legal and illegal drug use.
    I have been involved in trying to help the officials understand that this drug problem in our nation comes from the streets, not the prescription pad. I have read that the DEA was not paying attention to the massive amount of ordering of opioids in West Virginia. We can’t solve the problem if you’re arresting the wrong people. The media clearly knows but sits it on the doctor, and the patients. People are committing suicide due to the scared Doctor’s being afraid of the DEA. The patients are left to suffer horrific pain end up choosing suicide or going to the streets. Either option ends in the same death.

  7. kathleen chippi says:

    The feds never lawfully placed cannabis as schedule I–they had 1 1/2 years (including the 6 month, one time only extension) to research and prove cannabis belonged on schedule I. It’s placement there, per the CSA itself, was TEMPORARY. The Shafer Commission research showed cannabis did not belong on schedule I. Check out the arguments made by the Patient and Caregiver Rights Litigation Project (PCRLP) in CO Coats v Dish Network. https://www.boulderweekly.com/features/weed-between-the-lines/local-attorney-argues-fed-laws-donrsquot-apply-to-mmj/

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