07/03/15 Piper Kerman

Cultural Baggage Radio Show

Piper Kerman author of Orange is New Black & Asha Bandele of DPA, Amanda Reiman Mgr of Marijuana Law & Policy of DPA + Atty Gilbert Garcia

Audio file


JULY 3, 2015


DEAN BECKER: Broadcasting on the Drug Truth Network, this is Cultural Baggage.

DR. G. ALAN ROBISON: It is not only inhumane, it is really fundamentally un-American.

CROWD: No more! Drug war! No More! Drug War! No More! Drug War!

DEAN BECKER: My name is Dean Becker. I don't condone or encourage the use of any drugs, legal or illegal. I report the unvarnished truth about the pharmaceutical, banking, prison, and judicial nightmare that feeds on eternal drug war.

Hi, this is Dean Becker. Welcome to this edition of Cultural Baggage. We've got a great, quasi-July 4th show lined up for you. First up, from a recent California symposium, we're going to hear from Amanda Reiman, she's the California policy manager for the Drug Policy Alliance.

AMANDA REIMAN: And, I'm here to kind of talk about the big picture. So I think it's really important, as we start to think about the future of drug policy reform, to really get an idea of, what do we want? What are our goals, what kind of outcomes are we looking for? And as a researcher, you know, I always start backwards. I always start with, you know, what's the question, what are we trying to accomplish, and then, what is the best method to get us what we want?

So, I think we talk about what our goals should be for marijuana policy, I think that there's some things we can probably agree would be really good outcomes to see happen. One is that we have some sort of control. Right? So, we want a policy that's appropriate, that gives us some kind of say-so about where the product is grown, where it's processed, who is doing these activities, where the product is available, who it's available to. I mean, this is kind of a good idea for policy, right? You want to have control over certain aspects of how the product is consumed.

You also want to have some control, and you want to have a policy that does allow for punishments for people whose actions negatively impact or endanger the community. Right? So this isn't just about a free-for-all, it's about identifying when actual harm is being done to a community or another individual, and developing some mechanism for preventing that from happening and for having some kind of consequence for that happening.

And then finally, as more or less important to some people, consumer protection. So ideally you would want a policy where the people that were engaging in this behavior had some kind of assurance that the product they were consuming is safe, that it was cultivated or distributed or manufactured in a quality way, that it had some kind of oversight. So I mean, this is really what we would want from a marijuana policy. And I think, you know, if we had a policy that did all these things, we wouldn't be here. Right? We would be out and we would be spending this beautiful day doing something else.

So now then we can kind of think about what would be good to get out of a marijuana policy, right? Control over the operations, some kind of punishment for people that cause harm, and some kind of consumer protection. Now, what are our options?

So, really when it comes to regulating marijuana and other substances, we really have three options. Right? We can prohibit it completely, so we can say not okeh, but anybody at any time under any circumstances and any activity related to it is completely against the law. We can decriminalize it, which basically says, okeh, so certain activities involving this substance aren't going to necessarily carry criminal charges associated with them, usually just the possession of the substance, but everything else related to the substance, the growing of it, the manufacturing of it, all of that, is still illegal.

So we see decriminalization in I believe 18 states now in the United States, with a couple more trying to come on line, and we've had decriminalization in California since the 1970s. So we actually do not currently live in a prohibition regime in California. The other option we have is legalization, which is sometimes referred to as tax and regulate. So under a legalization context, you have no criminal penalties for the possession, just like you have under decriminalization, but all those other activities: the growing of marijuana, the processing of marijuana, the distributing of marijuana, is all under some kind of legal regulatory framework.

So then, the question really becomes, which of these policy choices is most likely going to get us to our goals? So, I think that's really important to consider because, for the past 40 years, we've been told that there's one choice: prohibition. That prohibition is the choice, it's the only one that's endorsed by the federal government. So that's their policy choice. But what policy choice, you know, forget what they want, will actually get us to these goals?

I have a handy wall-chart. So, we look at our policy options of prohibition, decriminalization, legalization, and then we look at our goals: Control over the production and distribution, punishments for those who cause harm, and consumer protections. We can see that punishment is true of any of them. Right? So under legalization you can punish people, right? You can punish people for selling to minors, you can punish people for growing marijuana on federal land or where they're not supposed to, you can punish people for not having the correct license. So there's all kinds of ways to still inflict control, even in a legalization market. But what you'll notice is that prohibition, besides punishment, doesn't get us anything else, and for that matter, neither does decriminalization.

So, even under decriminalization, where you're removing criminal penalties for possession of marijuana, you still have absolutely no control over where that marijuana was grown, how it was manufactured, where it was processed, whether or not it was tested, how it ended up in a retail store, how it ended up in the hands of the consumer. None of that is under regulation, and it also does not allow for consumer protection under prohibition or decriminalization because of the fact that the process for growing the marijuana, manufacturing the marijuana, everything leading up to when that consumer actually has the marijuana in their hand, is completely devoid of regulation.

So now that we have a bit of a context for what our policy options are, let's talk a little bit about California.

So as I mentioned, California is really somewhere between decriminalization and legalization. So as I mentioned, you had decriminalization since the 1970s. We've also had a medical cannabis program in California since 1996, and I don't have to pull any punches with you folks, you can pretty much get a medical marijuana card for anything that you would like here in the state of California. It's an open-ended list of conditions, it's completely discretionary, up to the doctor. A lot of doctors feel that the use of cannabis for things like anxiety and pain and insomnia is a lot safer option than things like Ambien and opiates and Xanax.

So what that's basically created over the last 18 years in California is what some might call a pilot program for legalization. You know, we do have an industry in California, even though the cultivation side is highly unregulated, with really only a few pockets that do regulation for cultivation. The distribution side especially in places like Oakland has been regulated for going on 18 years. Then, in 2011, possession of less than an ounce of marijuana in California went from being, and under decriminalization to actually just being an infraction, meaning that it's the same as a parking ticket.

So some folks would say that we're kind of as close as you can get to legalization in California without actually having legalization in California, and we've been working our way here since the 1970s. So, when people say, well, if we legalize, who knows what's going to happen, you have no idea what's going to happen. Well, we actually do have a pretty good idea of what might happen in California because we do have data about what's happened since 1996, when medical marijuana came into play. So, of course I'm going to take a step back and just quickly say that there's a difference between correlation and causation.

None of the data I'm about to present can say anything about whether this was because of medical marijuana access, because of liberalization of policies, but I present it to you because opponents of legalization say as soon as you liberalize marijuana laws, two things will happen: Crime will go up, and youth use will go up. So in fact it's important to look at whether that happened in California once we legalized marijuana for medical purposes.

So we look at crime, from 1996 versus 2012, we'll see that across categories, violent crime, property crime and assault, we saw reductions. Again, not saying this is because of medical marijuana, but we definitely didn't see any kind of skyrocketing of crime during this time. And then similarly in 1996 versus 2008, which is the last year we have available for this data in California, we saw that youth marijuana use had decreased. So again, we can't say that this is because of medical marijuana, we have seen similar patterns in other states that have also allowed for the medical use of marijuana.

So this they had to say, well this seems to be working, so why change it? It seems like you have a pretty good system, crime is down, youth use is down, you know, you can get a medical marijuana card for pretty much anything in California and you have access, so why are we here? Why is it so important for us to talk about this moving forward?

Well, first of all, follow the money, and I think Deborah really outlined this very well. There is a lot of money being made on marijuana in California, a lot of it's being made by wonderful upstanding businesspeople and entrepreneurs who are really trying hard to legitimize this industry. And some of it is being made by people that are shipping it out of the country and doing it in very violent ways. We don't want all of this money to be going out of the country, out of the state, we want to be able to hold onto this, we want to be able to reinvest this into our communities. We want to be able to take what are some of the most cash-strapped programs in the country, because they're social services, and actually give them the funds and the boost they need.

So just a quick example. In Colorado, they recently spent almost a million dollars to hire school nurses and social workers. Now as a social worker who teaches other aspiring social workers, I know that the day when there's actually a million dollars just set aside for school social workers and nurses comes around, oh, never. So I think we really have to start thinking about what our needs are as a community. Secondly, youth use may have gone down, but what about ease of access? So we may be changing the conversation about marijuana, young people may be realizing and acknowledging that it's something that they want to delay until they're older. But when you have an unregulated market, it really does nothing to reduce their access.

So I'll give you an example. In Colorado recently, they did a sting operation. Right? Where they sent, I think, 50 or so under-age decoys to marijuana stores in Denver and Pueblo and asked them to try and buy marijuana. Not one of them was successful in purchasing marijuana, because everyone asked them at the door, show me your ID, show me your ID. Now let's just think about this a different way. Let's say we send 50 18, 17 year olds into Golden Gate Park with 50 dollars, and we ask them to come back with some weed. I guess every single one of them would be successful, and a bunch of them would probably come back with drugs in addition to marijuana that were on sale, that were a freebie the first time around.

So when we talk about regulation, what we're talking about is really making a clear line between who can access this product and who cannot. Because right now, that is completely gray. Another reason to change this is stigma, and Deborah spoke really eloquently about this. I can't tell you the number of folks, mostly older folks, but also some young folks to, that will come up and say, you know what, I myself or my mom or my aunt or my sister, is going through chemo or has horrible arthritis, or you know, they're having a lot of issues with anxiety, and I would love for them to try medical marijuana but they are so dead set against trying an illegal drug that they won't even talk to me about it.

And so, if we can do anything that allows folks who are suffering to take a second look at marijuana as a treatment, because they're not feeling like they're a criminal or that what they're doing is criminal activity because they're going to a well-lit store with marijuana that tells them exactly where it came from, that's been tested for pesticides and molds, and they know exactly what they're getting, we could really open this up to a lot of folks that are struggling to manage their pain and not get hooked on opiates. People who are struggling to manage dependence to alcohol and are looking for a way to try and step down from that nightmare.

And then finally, most compelling I feel, racial disparities and arrests persist, no matter how much you lower the penalty. So last thing I want to talk about today before I hand it over to Lizzie is racial bias in marijuana arrests. So Deborah alluded to this earlier but I wanted to put a little data to go with her story. So, we look at a marijuana arrest in California. Between 2010 and 2013, we see that African-Americans make up 7 percent of the California population, but 23 percent of those arrested for marijuana felonies during this time.

Furthermore, African-Americans are more likely to be charged with possession with intent, which can carry a stiffer penalty and is largely subjective. So what this means is that possession of less than an ounce may be an infraction in California, but if you happen to have an extra baggie in your pocket, or maybe you have two different strains of marijuana on you that day, or maybe just because you were talking to some guys and cops think you were making up a deal, then you get charged with possession with intent to distribute, which is not an infraction under California law, and depending on the amount, can hold very stiff penalties. The racial disparities that we see in the difference between possession and possession with intent to sell are really staggering.

So then some folks ask, we made, you know, possession of less than an ounce an infraction in 2011, what happened after that, do we still see the same racial disparities. Well, let me tell you, this is a really really hard project to complete, because once marijuana possession became an infraction, all of the data is held by the traffic courts, so calling them traffic court and asking them to provide the last year of data on marijuana infractions and the demographics of those who receive them, when they don't even have records that are digitized, is very difficult.

However, with a lot of very personal -- a lot of persistence between ourselves and the ACLU, we're able to get some information and we're looking at releasing a larger report, but just to give you this data. We got information from Fresno and Los Angeles on their infractions, and we saw that Fresno gave out 974 infractions in 2012, African-Americans make up 8 percent of the population in Fresno and 21 percent of those receiving infractions. We saw a similar pattern in Los Angeles, where African-Americans make up less than 10 percent of the population but received 25 percent of the infractions. So it doesn't matter if this is a jail sentence or a slap on the wrist, as long as there is a punitive context for marijuana use, production, distribution, in California we will continue to see the same populations targeted.

So conclusions. We have several policy options for marijuana: prohibition, decriminalization, and legalization. But only legalization really gives us that control over who's growing it, where they're growing it, how they're distributing, where they're distributing it, and to who. California has had a quasi-legal marijuana market for 18 years, and neither crime nor youth use has decreased in that time. There are several reasons why moving away from decrim to legalization will further our policy goals that we mentioned, but none so compelling as the continued racial bias in marijuana-related arrests. And so the last thing I'll say is that here in Oakland, because that's where we are, I'm a 13-year proud Oakland resident, I sit on the Oakland Cannabis Regulatory Commission. We have the Oakland police come and give us a report every year, I was getting marijuana infractions in the city of Oakland, and Oakland does have a larger African-American population than average in the state of California, but 75 percent of those citations for marijuana are going to African-Americans.

So thanks a lot, and I'll introduce Lizzie.

DEAN BECKER: It's time to play Name That Drug By Its Side Effects.

ALEX TREBECK: a 2009 study recommended treating heroin addicts with Diacetyl Morphine, the active ingredient in this.

DEAN BECKER: The time's up, the answer, from a recent edition of Jeopardy:


KAREN: What is heroin?


DEAN BECKER: Earlier this week, Piper Kerman, author of the memoir "Orange Is The New Black: My Year In A Women's Prison," joined the Drug Policy Alliance's asha bandele for a discussion on mass incarceration, women affected by the failed drug war, and how television and media have approached these issues.

ASHA BANDELE: But I wanted to turn to the question of mothers in prison, fully 75 percent of the women who are imprisoned were not, not just mothers but the child's sole caretaker at the point of the arrest, and, you know, putting, you know, your hat as an advocate, Piper, what would you share with us about what you want us to know about the impact of incarceration on mothers and children and families?

PIPER KERMAN: The impact on mothers and children and families of female incarceration is seismic. So, it is a devastating tragedy for a family when they lose a father into prison or jail, but we know that it shows that when it's the mom who gets locked up that her kids are five times more likely to go into foster care, and obviously not all foster care situations are bad, but some of them are very bad, and the dissolution of the families is a tragedy for each and every one of those individuals involved.

So, we also know that, because women are still, while we have been the fastest-growing segment of the prison population, we are still a small percentage of the overall population of any system. What that means is that there are fewer places where female prisoners are housed, and the result of that is that women are more likely to be sent far away from their families, very often, and New York state is a great example. Many women in New York state who are incarcerated are from New York City or the area -- immediate area around it. And yet, at this point, they're getting sent way, way, way far upstate. You see very similar things transpire in the federal system, a woman is locked up for a federal offense and goes into the federal prison system, the Bureau of Prisons, you know, there's West Virginia, there's Aliceville, Alabama, there's all of these prisons that are basically in very remote rural areas, very very far away from where most prisoners are from.

So you know, if you are a poor family in the Bronx, or in Philly, or in Oakland California, you know, those distances can be vast. And so, what happens is that we see that women very rarely get the opportunity to see their children, and that has a devastating effect on those women. It has an even more devastating effect on those kids.

ASHA BANDELE: Yes, I think that's right, and you know, kind of keeping it along this, just advocacy, when the woman who say, the children, probably the most surprising to me is that despite the, and you know, I say this as somebody who's worked in social justice and in nonprofits and also sits as a funder, and meets with funders quite often, and you know, it strikes me that despite the extraordinary success of Orange Is The New Black, that many have continued to argue that our advocacy lens hasn't been adjusted to see the particular challenges faced by women in prison, the vast majority of whom are there for drug and addiction-related offenses, including mental health challenges as you've noted, and I'm thinking here specifically about a recent article on alternates by Teresa Castillo, in which one of her sources speculated that when it came to supporting women who are vulnerable to our drug laws, funders are often white men and they just don't see us.

So, if that's true, and I don't know that it is but certainly that's been argued, and if you were right now talking to a panel of caring funders who were concerned about the intersection of drug and criminal justice policy, what reforms in your top three or top five would you implore them to support in the name of reducing the harms specifically visited upon women?

PIPER KERMAN: Hmm. I mean, reforming our drug sentencing laws is the absolute linchpin of a solution to being less reliant on incarceration for people who clearly don't need to be confined. And that really covers a huge swath of women who are currently locked up, or who cycle in and out of prisons and jails by our probation or parole system. And it would be hard to overstate that if you walk through, you know, the federal units where I did time, or if you walked through the women's state prison where I now teach writing, and met the vast majority of the women who fill up those facilities, you, most people would really debate powerfully what value their incarceration offers.

Given that very few people who are incarcerated get substantive help on things like substance abuse, and addiction, and given that the process of incarceration is so very destructive to the social fiber of people who are frequently are in vulnerable situations out in the free world, their removal from the free world makes them ultimately even more vulnerable when they return home, now bearing a felony conviction and all of the collateral consequences that go along with that. So I would say that sentencing reform and making sure that we keep people out of the system or at minimum out of confinement as much as possible is incredibly important, and that question of diversion out of the criminal justice system, when there are mental illness or substance abuse problems that are primary drivers of low-level offenses especially, is just a huge no-brainer, all levels.

Which is not to say that legislative reform is easy, it's very difficult. However, one of the reasons that I thought it was important to write the book is because I think that women and girls in the system offer us these crystalizing examples of where we've gone wrong, and where we can very easily, you know, make better steps because women are so disinclined to commit violent offenses, and when women get the help they need they flourish. And this is something that we see when women get chances to do things differently, they take it and they run with it, and I'll offer one very straightforward example. You know, New York state, the cost of incarcerating a women or, you know, a person, is very high, it can run as high as $60,000 a year. If a woman has two children who are going to go into the foster care system, then suddenly the cost to taxpayers climbs up to around $130,000 for one year.

So, the women's prison association launched a program called Justice Home, about, almost two years ago. And that is an instance where women who are facing at least a year of prison or jail, if not more, are given an opportunity by their district attorney and by their judge to remain in their home, to be held accountable for whatever their conviction is, but also to get the help they need, and the help that those women need is individualized. It might be mental health problems, it might be substance abuse problems. They might need parenting classes. There are whole loads of things that people need. And when women complete that program successfully, they also get an opportunity to get an expungement so that they do not have that felony conviction, you know, weighing them down for the rest of their lives.

That program costs under $20,000 a year, it seems like a complete no-brainer to me.


DEAN BECKER: Last week, we reported on the fact that Richard Lee was in town to educate folks to marijuana laws, how to behave, how to make progress. A second speaker was an attorney, Gilbert Garcia. Here's a little bit of what he had to share.

GILBERT GARCIA: A couple things I want to talk about, a little bit off-topic because I like of the people and by the people, so we're going to stay on that theme a little bit. Number one, please show up for jury duty and have all your friends show up for jury duty. I mean, we don't have to do much as citizens in this country, we really don't, compared to a lot of other countries. Voting and showing up for jury duty are really what we need to do. Now, when you show up for jury duty, repeat after me: I can be fair.

CROWD: I can be fair.

GILBERT GARCIA: I can be fair.

CROWD: I can be fair.

GILBERT GARCIA: I can follow the law.

CROWD: I can follow the law.

GILBERT GARCIA: Don't say anything else. Okeh? You can be fair, and you can follow the law. Right? Now. Couple of ideas that I like to do when I do trials on marijuana cases. Number one: It has to be a usable amount of marijuana. What is usable? Okeh? That's what the jury decides. They do not test marijuana at the lab in Texas for THC. They don't know if it's usable, and they can't prove it's usable. That's not, I'm not exactly quoting, but as far as juries are concerned, you won't know. So that's one way to do it. Usable amount. The other thing, the definition of marijuana in Texas, okeh, is cannabis sativa L., which is also impossible for them to prove at this point. There are so many hybrids, cannabis indica, all of that. They don't bring a botanist to court. So all you have to do is, follow the law.

DEAN BECKER: Reporting on the drug war used to be what to leave in. Now, it's what to leave out. As always I remind you, because of prohibition, you don't know what's in that bag. Please be careful.

To the Drug Truth Network listeners around the world, this is Dean Becker for Cultural Baggage and the unvarnished truth. Drug Truth Network archives are stored at the James A. Baker III Institute for Policy Studies.

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