Why Can’t Americans Grow Their Own Weed Without Fear?
by Keith Stroup, NORML Legal Counsel
August 5, 2014
As an old farm boy, it has always seemed strange to me that most states, and the federal government, treat someone who grows a few marijuana plants for personal use as a more serious offender than someone who buys cannabis from the black market. In practice, by penalizing personal cultivation, the government encourages a thriving black market with absolutely no controls over age, potency or purity. At least if one grows their own marijuana, they can be assured it includes no pesticide residue or other harmful additives. This is an arbitrary policy that has absolutely no basis in public safety.
But marijuana prohibition has never been a rational policy, and this bias against home cultivation is just another example of that principle.
At NORML, we have always supported the right of individuals to grow their own marijuana, as a logical option compared to purchasing it from licensed dispensaries. On one hand, growing your own just makes common sense. We can brew up to 100 gallons of home-brew beer in our basements under current law, even if very few Americans actually make their own beer. The same should be true for cultivating our own marijuana.
However, most marijuana smokers will not grow their own as it requires a significant degree of skill and expertise, along with expensive lighting, exhaust and growing equipment. Growing cannabis is not as simple as throwing a few seeds in the ground and occasionally watering the plants. Thus, most smokers prefer the convenience and reliability of purchasing our marijuana from a retail outlet.
But including the right to grow our own marijuana will serve as leverage to assure the marijuana available at retail outlets is high quality, safe and affordable. If the legal market tries to sell us poor quality marijuana, or tries to exploit smokers by charging exaggerated prices, or sells marijuana without having it tested for molds and pesticides and labelled for THC and CBD strength,we always have the option of growing our own. Just the threat of that should suffice to assure the legal market is responsive to the legitimate needs of consumers.
Most state criminal codes now classify the simple possession of a small amount of marijuana as a misdemeanor, but the cultivation of even a few plants is treated as if it were for the purpose of distribution, a felony offense. Other states treat cultivation as either a misdemeanor or a felony, depending on the weight, but they weigh the whole plant, not just the usable parts. And for larger amounts, the penalties are frequently more harsh than those for violent crimes. In Montana, for example, cultivating more than a pound of marijuana carries with it a possible life sentence, and at least one defendant is current facing that absurd possibility.
This bias against personal cultivation is further reflected in the various medical use laws, especially those adopted legislatively. Of the 13 states (including he District of Columbia) that have adopted medical use via the state legislature, only three (Hawaii; RI; and Vermont) permit patient cultivation. In those other ten states, patients have to buy their medical marijuana from a licensed dispensary.
Whereas the 11 states that have legalized medical use via voter initiative (Alaska; Arizona; California; Colorado; Maine; Massachusetts; Michigan; Montana; Nevada; Oregon; and Washington), all permit patients to cultivate marijuana, demonstrating once again that the attitudes of the voters towards marijuana use and legalization are far ahead of those of their elected officials.
Unfortunately the primary concern for most elected officials is to get re-elected, and they duck most controversial issues (or those they perceive as controversial); and when they are finally forced by public pressure to adopt a more progressive marijuana policy, they vote for the most restrictive version. It is the nature of elected politics that most candidates are timid, preferring to follow somewhat behind public opinion, rather than leading the change. It is a safer political strategy, aimed at re-election.
This bias against personal cultivation is largely a reflection of the enormous political influence law enforcement continues to enjoy with state and federal elected officials. The reason generally given by legislators for failing to legalize personal cultivation is the concern of law enforcement that they would have no way to tell which marijuana plants are legal and which are illegal! Obviously that is not the real reason, as the legislature could require the plants be grown inside in a secure environment, with proper labeling and, if a medical grow, a copy of the medical recommendation posted appropriately. Absent that, any marijuana found growing would remain illegal and could be seized. That hardly seems like an unreasonable burden on law enforcement.
But no one has ever lost an election by being too supportive of the tough-on-crime policies pushed by the law-enforcement lobbies, whether harsh mandatory penalties or larger budgets for law enforcement or building more prisons. So if the cops don’t want patients to have the right to grow their medicine, that seems to settle it for most elected officials. After all, why take the risk that the law enforcement community would oppose your re-election, simply to advance a smart public policy?
The reality is that marijuana prohibition is a jobs program for police, prosecutors and prison guards (in California, the prison guards union is the single largest lobby in the state!). Of course they support a continuation of prohibition, because it means job security for them and their colleagues. In addition, it is far less risky to spend their time arresting marijuana smokers (and those who grow for personal use), than it would be to target serious and violent crime.
As we move forward with additional voter initiatives either for full legalization or for medical use, this is another secondary issue, like provisions barring job discrimination against legal smokers, that should be determined by the polling results. If it appears we can win these initiatives with a clause permitting personal cultivation, we should obviously include the provision; but if it appears the initiative might well fail if personal cultivation is included, we should pass the initiative now, and be prepared to come back and add personal cultivation when we have the political support to accomplish that. We should never miss an opportunity to adopt a legalization law in any state, because voters are not yet ready to embrace personal cultivation or other second-tier issues.
Of the two current full-legalization states, Colorado permits personal cultivation (up to 6 plants), and Washington does not. The decision in Washington was based on polling results that showed the initiative might well be in jeopardy if cultivation were included, as well as the opposition of some of their most influential sponsors, including the former US Attorney, John McKay. NORML worked behind the scenes to try to convince the draftees to include personal cultivation, but when we failed, we did the only responsible thing and endorsed the initiative, as drafted.
As these laws have some time to take effect, voters will inevitably become more comfortable with legalization, and less concerned about these secondary issues such as personal cultivation. Whether we like it or not, most social change occurs in an incremental fashion, and we must be prepared to accept incremental change, with a firm commitment to return at a later time to further improve the law.