“UNREASONABLE, ARBITRARY, AND CAPRICIOUS:”1 THE UNITED STATES’ SECOND CIVIL WAR by Joshua Frye A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree MASTER OF ARTS Major Subject: History West Texas A&M University Canyon, Texas June 2018 ABSTRACT Unreasonable, Arbitrary, and Capricious1 brings into cold relief the hypocrisy of the war on drugs, specifically the war on cannabis, by tracing the history of cannabis prohibition in the United States from the early days of Reefer Madness and Harry Anslinger’s proverbial witch-hunt, through the 1960s-1970s, to the current surge in efforts to decriminalize on state and local levels. Making the argument that the war on non-violent cannabis users is unreasonable, arbitrary, and capricious and has done far more harm than good, the focus then moves to chronicling the struggles to bring sanity back to the drug policy of this country by Washington, Oregon, and Colorado in the election of 2012, and the success and early implementation of the laws in Washington and Colorado. Although cannabis remains a schedule one drug under federal law, the successes in Washington and Colorado have led to several smaller victories, each of which tug at the remaining shreds of integrity of the arguments for continued cannabis prohibition. With the medical cannabis industry having operated with a large amount of freedom under the Obama administration, the 2016 election of Donald Trump brought with it an immense amount anxiety for all. However the will of the people in regards to cannabis was also to be noted that evening as Arkansas, Florida, Montana, and South Dakota all passed medical cannabis initiatives, while California, Massachusetts, Maine, 1 Julie Holland, The Pot Book (Rochester: Park Street Press, 2010), xvi. ii and Nevada passed laws that allowed for adult consumption of cannabis very similar to those of Colorado and Washington. iii ACKNOWLEDGEMENTS The author would like to thank his major adviser and committee members for their help and guidance. This thesis is dedicated to my family for their love and support and encouragement through my degree, and to the countless lives sacrificed to the unwinnable war on drugs. iv Approved: [Chairman, Thesis Committee] [Date] [Member, Thesis Committee] [Date] [Member, Thesis Committee] [Date] [Department Head/Direct Supervisor] [Date] [Dean, Academic College] [Date] [Dean, Graduate School] [Date] v TABLE OF CONTENTS Chapter Page I. INTRODUCTION………………………………………………….….1 II. THE HISTORIOGRAPHY OF CANNABIS …………………….…...5 III. THE POTENTIAL PROFITABILITY OF THE CANNABIS INDUSTRY……………………………………….……59 Colorado……………………………………………………….…….60 Michigan……………………………………………………….……63 Banking……………………………………………………………...65 Credit Cards………………………………………………………....68 Ancillary Businesses………………………………………………...71 Testing……………………………………………………………....75 Going Global…………………………………………………….….77 Cannabis Universities……………………………………….….…...82 Magazines…………………………………………………….....…..87 High Times and the Cannabis Cup………………………………….88 Concentrates………………………………………………………...95 Vaporizers and Pens………………………………………….……..99 Environmental Considerations……………………………………..103 IV. CANNABIS, SCIENCE, & MEDICINE……………………………108 vi Genetics………………………………………………………….….109 Cannabidiol (CBD)………………………………………………....112 Charlotte’s Web…………………………………………………….114 Cannabinoid Research………………………………………………117 Multiple Sclerosis…………………………………………………...118 Crohn’s Disease……………………………………………………..119 PTSD………………………………………………………………..121 V. CHIPPING AWAY AT PROHIBITION…………………………….125 Washington Initiative 502…………………………………………..126 Oregon Measure 80………………………………………………....128 Colorado Amendment 64…………………………………………...130 Endorsements………………………………………………….……133 The Opposition……………………………………………………..135 Election Day 2012………………………………………………….137 Reaction……………………………………………………….……140 Legislative Responses………………………………………...……145 Task Force Recommendations……………………………………..151 VI. AFTERMATH: THE 2012 ELECTION………………………….....159 Czech Republic…………………………………………………….175 Israel……………………………………………………………....177 VII. A NEW ERA……………………………………………..................183 Other States……………………………………………...………..189 VIII. CONCLUSION…………………………………………..................194 vii IX. BIBLIOGRAPHY………………………………………..................198 viii CHAPTER I INTRODUCTION According to a ten-year study done by the ACLU, “in 2010, there was one marijuana arrest every 37 seconds.”2 Even more alarming is the fact that “on average, a Black person is 3.73 times more likely to be arrested for marijuana possession than a white person, even though Blacks and whites use marijuana at similar rates.”3 Illustrative of the deeply ingrained racist origins of much of the United States drug laws, specifically those related to cannabis, the war on drugs has led to the mass incarceration of nonviolent citizens, and over 40 million arrests in the United States over the past 40 years.4 Beginning with the Marijuana Tax Act of 1937 and dramatically increasing under the direction of President Richard Nixon and just about every president since, the war on the cannabis plant and user has escalated to an essential part of “the prison industrial complex,”5 ultimately creating multi-billion dollar industries through law enforcement, private prisons, and drug testing facilities across the country. However while many are 2 ACLU, “The War on Marijuana in Black & White,” June 2013 <https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf> (Accessed June 6, 2013). 3 Ibid. 4 Ibid., 7. 5 The prison industrial complex is a term coined by Mike Davis, an American social theorist initially used to describe California prisons in the late 20th century. During this period the US Government began to sell off prisons to private companies. This meant that the companies ran the prison, for all intents and purposes. 1 still clinging to these antiquated and inherently racist policies, millions of people in this country and around the world are quickly coming to recognize the numerous potential medical benefits of the cannabis plant, the distinct lack of danger as compared to licit substances such as alcohol and tobacco and for the thousands of other uses that the less intoxicating varieties of cannabis, including hemp, may be used. As noted by Professor Emeritus at Harvard, Dr. Lester Grinspoon in his seminal work Marihuana Reconsidered “ the single greatest risk encountered by the user of marihuana in any state in this country is that of being apprehended as a common criminal, incarcerated, and subjected to untold damage to his social life and career.”6 Adding insult to injury, in 1988 the Drug Enforcement Administration (DEA) judge Francis Young tasked with reviewing the evidence and testimony of the public hearing regarding the medical use of cannabis that lasted over two years, concluded that “marijuana, in its natural form, is one of the safest therapeutically active substances known to man.”7 Continuing, “one must reasonably conclude that there is accepted safety for use of marijuana under medical supervision. To conclude otherwise, on the record, would be unreasonable, arbitrary, and capricious.”8 Twenty-five years later it is virtually impossible for a reasonable person to not conclude the same for the entirety of the United States policy regarding cannabis today as well as the war on cannabis and cannabis users. Furthermore, the United States is rapidly approaching a tipping point which will ultimately result in the classification of cannabis 6 Lester Grinspoon, Marihuana Reconsidered (Cambridge: Harvard University Press, 1977), 2. 7 Holland, The Pot Book, xvi. 8 Ibid. 2 to reflect its medical benefits, to be followed by far more wide scale decriminalization and ultimately taxation and regulation. With twenty-two states and the District of Columbia already allowing their citizens access to medical cannabis, new states passing laws on an almost weekly basis, and the bold steps taken by Colorado and Washington in the 2012 election, as well as California, Massachusetts, Maine, and Nevada in 2016, it is clear that the tide of favor is turning toward less restricted access to cannabis. Money, science, and a growing understanding of the both the medicinal benefits of the plant have largely fueled these changes and the decreased risks compared to other recreational substances including tobacco and alcohol. Chapter one of this thesis consists of a historiographical investigation of the works written about cannabis over the past forty years. Chapter two explores the role money, especially tax money, has played in helping to legitimize the medical marijuana industry in Colorado, the struggles with the depositing cannabis profits in banks, and the plethora of ancillary businesses that have grown around the cannabis industry. In chapter three, the science of cannabis is explored, with particular attention paid to cannabinoids such as cannabidiol (CBD) that have proven to be very effective in treating a variety of disorders including cancer and children's epilepsy. The proven medical benefits of cannabis have resulted in even very conservative states, including Utah, Kentucky, South Carolina, Georgia, Arkansas, Florida, Montana, South Dakota, and Texas legalizing cannabis for medical usage. Recounting the contentious election cycle of 2012, chapter four focuses on Colorado’s Amendment 64, Washington’s Initiative 502, and Oregon’s Measure 80, and the successes and failures of those efforts. The fifth and final chapter centers on the 3 examination of other countries around the world that have chosen to forgo the costly and ineffective war