Why legal pot didn't happen in Hawaii

Hawaii loves marijuana. We’re famous for it: Maui Wowie, Kona Gold, Kauai Electric. This year, legislators introduced bills to legalize the drug—they got shot down. Legalization has been gaining traction, both locally and nationally, so why has it been an uphill battle for marijuana advocates? Here's why pakalolo won't become legal in Hawaii this year, and probably won't next year, either.

The third-floor conference room of the state Capitol was packed. Latecomers stood along the back wall. Law enforcement sat on the left side, the officers in full uniform, peaked caps in their laps, the attorneys in suits and ties. Marijuana supporters, more casually dressed, mostly occupied the right side, including nonprofit staff, medical marijuana patients and educators. A few students were there; one held up a small sign reading, “Be Wise. Legalize.” They were all there to testify—for or against—House bill 699, the bill proposing to legalize marijuana for adults 21 and older in Hawaii.

Colorado and Washington made news across the country this past November when the two states ended their prohibitions on marijuana in landmark referendums. Hawaii seemed like a natural state to take the same step. After all, the Islands are predominantly Democratic and have a famous reputation for both growing quality pakalolo, and smoking it: According to the National Organization for the Reform of Marijuana Laws, or NORML, Hawaii has the 10th highest marijuana usage rate in the nation among those 18 and older.

Sure enough, the state Legislature introduced five bills to either legalize or decriminalize weed—reducing possession from a petty misdemeanor to a civil fine, essentially removing jail time for offenders. Hawaii was one of several states to do so, including Oregon, Nevada, Vermont and Rhode Island. For local advocates, pakalolo enthusiasts, even the local Libertarian Party, it was a good start to the 2013 session. But the high didn’t last long. Hawaii, it turns out, isn’t much like Colorado or Washington. Our political processes are different, and so is our brand of liberalism.

"A Lack of Political Will”

When it comes to illegal substances, marijuana is one of the most easily accessible. It’s the most commonly used drug—or medicine, for some—in the U.S. In 2011, there were more than 18 million users (according to the U.S. Department of Health and Human Services). The president himself has openly admitted to enjoying pakalolo while attending Punahou School. Guy Archer, a retired attorney, and the president of the local chapter of the Americans for Democratic Action, says he, too, has smoked weed before and, while he says he’s “not willing to run the risk today,” thinks marijuana is safer than alcohol. “People should have an alternative to alcohol,” he says.

He’s not alone. This past November, the Honolulu-based Drug Policy Action Group commissioned QMark Research to gauge the attitude of Hawaii citizens towards marijuana. Of the 600 registered voters polled, 57 percent supported legalization—up 20 points from a 2005 survey—69 percent said jail time for possession was too harsh, thus favoring decriminalization, and 78 percent supported establishing medical marijuana dispensaries.

“It’s in the air. People are feeling it’s time for a change,” says Pam Lichty, who heads the Drug Policy Action Group, sister organization to the Drug Policy Forum of Hawaii. Lichty adds she believes Colorado’s and Washington’s winning initiatives “made everyone wake up and notice.”

But Hawaii won’t join in Colorado and Washington’s marijuana conquest anytime soon. It all comes down to politics. Our state constitution has no provision for statewide referendums by which voters can directly overturn an existing law, such as the ban on marijuana, or ballot initiatives to create a new law, such as establishing medical marijuana dispensaries. That’s how Colorado and Washington did it. In Hawaii, such issues are funneled through the Legislature, in what can be a longer, more cautious process. And, although legislators put their names on legalization and decriminalization bills this session, “there’s a lack of political will” to see them pass, says Lichty.

This played out in the House in February. It took the Judiciary Committee about five hours to hear everyone’s testimony for the legalization bill. In total, there were 402 pages of testimony, much of it in support. Anyone conversant with the issue heard the usual arguments for and against: The police talked about how legalization would increase crime and put more joints in kids’ hands, while also reminding legislators it’s illegal federally. Supporters touted its medicinal benefits, refuted claims of addiction and argued that prohibition has failed. You could tell some House representatives were dubious of the legislation based on the questions they asked testifiers, but deferred to the leadership of chair Karl Rhoads.

“I thought there was a very good chance it would pass this year,” Rhoads said over the phone just days after the legalization bill stalled. He says that, in the beginning of the session, he polled the House Democratic Caucus on whether it would support marijuana legalization. He had 19 yeses, 16 noes and four undecided. That’s why Rhoads’ committee scheduled a hearing for the bill. But, it “became clear it wasn’t going to make it,” he says after learning it wouldn’t pass muster once it left Judiciary.

“If you want something killed, it’s relatively easy to do,” says John Radcliffe, who has been a government lobbyist for more than 20 years. “Getting something passed into legislation is very difficult,” he says, especially controversial legislation such as legalizing marijuana, or gambling, the latter of which he’s tried to get passed for years. “Getting ideas killed happens every day.”

So why is this? Hawaii is a true blue state—unlike Colorado, which has Republican roots—and has been historically. Logically, it should be easier to pass bills with both a Democratic majority in the Legislature and a Democrat in the governor’s seat. “[But Hawaii] legislators are timid,” explains Radcliffe from his office, which overlooks Dog the Bounty Hunter’s Da Kine Bail Bonds. It’s the reason gambling legislation isn’t being heard this session, despite the “intense interest,” says Radcliffe, as well as bills for same-sex marriage or physician-assisted suicide, also known as “death with dignity.”

“Absent of anything you might have heard of Hawaii otherwise politically, our politicians are extremely affected by people who criticize them or who want something from them. The loud voice is heard in Hawaii.”

When it comes to marijuana, that loud voice is law enforcement. There’s vested interest in keeping things the way they are, says Lichty. For example, she says, the police department wants to keep the funds it gets for the war on drugs, and the drug-testing industry doesn’t want to lose business.

A 2012 study done by David Nixon, a UH associate professor of public policy, found that law enforcement and prosecution costs for marijuana possession have increased to more than $12 million annually.

“Marijuana arrests are what the police would call an easy collar, especially if people are smoking in public or acting stoned,” she says. “It’s easier than going after a heroin addict, a heroin dealer or someone who might be armed. [Those who use marijuana] are relatively harmless.”

However, says Maj. Jerry Inouye, who’s in charge of the Honolulu Police Department’s Narcotics/Vice division, not many people spend time in jail for possessing small amounts of marijuana. “In 2012, about 30,000 people were arrested by the Honolulu Police Department,” he writes via email. He adds, of that total, about 600 arrests were for petty misdemeanor marijuana possession.

Nixon’s research drew a different conclusion. It’s true, he says, that not many people are in jail because of marijuana possession, but he found that the arrest rate for marijuana possession in the state had increased between 2005 and 2010, from 1,003 arrests per year to 1,445. Even more alarming are the statistics for specific ethnicities. “There are at least three racial minorities in the state that are getting arrested at a lot higher rates than the rest of the population—Native Hawaiians, Filipinos and Samoans,” he says. “I think it remains an unanswered question just yet whether they’re getting arrested more because they’re being targeted more, or whether they’re just smoking more. If they’re using more, that opens up another set of questions, but if they’re not using more and they’re just getting arrested more, that’s disturbing.”

A Legislative Concession

Hawaii may not have legalized marijuana this session, but there’s a glimmer of hope for its supporters: The Senate Judiciary and Labor Committee passed a decriminalization bill. As of press time, the House Judiciary Committee had also passed the bill.  It next has to be heard by the Finance Committee. Advocates hope it doesn’t die—it’s happened before.

That’s why the Senate didn’t hear any legalization bills this session, says Clayton Hee, who chairs the judiciary  committee. After what happened to the House legalization bill, there was no point.

But even the decriminalization bill came with a substantial change. Right now, when law enforcement catches someone with an ounce or less of marijuana on them, they face up to 30 days in jail and a maximum fine of $1,000. They also have a petty misdemeanor on their record. The Senate’s decriminalization bill, if it passes in the House, would no longer make possession of an ounce or less of marijuana a petty misdemeanor, and offenders wouldn’t face jail. Instead, they’d fork over $1,000, whether they had a single joint on them, or an entire ounce. The bill originally called for a fine of no more than $100, the amount  usually given by civil courts.

“It’s still a crime; it’s still illegal,” says Hee. “The $1,000 fine demonstrates that this is still a serious offense. And it’s a mandatory [fine], it’s not discretionary.” It’d be similar to the fixed $92 civil fine for not wearing a seatbelt, or the $130 fine for jaywalking—just 10 times as expensive. During the bill’s hearing, Hee said the $1,000 fine is intended to persuade House members to consider it.

The Medical Marijuana Program Impact

Depending on your political point of view, the Hawaii Democratic Party’s 2012 platform might appear forward thinking. After all, it includes sections on LGBTI rights, affordable housing, immigration reform, universal healthcare and support for the state’s existing medical marijuana program.

“The Democratic platform looks really progressive,” says Kat Brady, the coordinator for the Community Alliance on Prisons, who, like Lichty, spends much of her time at the Capitol during session. “But then you go down to the Legislature and listen to them speak and you think, Why do they call themselves Democrats?”

In this instance, she’s referring to the 13-year-old medical marijuana program, which has remained unchanged since then Gov. Ben Cayetano signed it into law in 2000. There have been repeated attempts to amend it; so far, none have made it.

Lichty thinks a main cause is the “conservative voices that ruled the House for years.” Marijuana bills have repeatedly passed out of the Senate, only to get squashed in the House. Advocates are hoping that, with new leadership in place, things might finally change. This might be the year: As of press time, there were two bills that made it through the House and were working their way through the Senate. If passed, one would transfer the program to the state Department of Health (where most states’ medical marijuana programs are housed) from the state Department of Public Safety—the people who run law enforcement, prisons and jails.

Lichty says, under its current organization, legislators are getting a skewed view of the program, because it’s overseen by a department that, by nature, does not support medical marijuana. “Legislators believe everything [the department] tells them, instead of the patients, whom the program is for.”

Law enforcement and organizations such as the Coalition for a Drug-Free Hawaii continue to dispute marijuana as medicine. “There’s no proven medicinal benefits at this time,” says executive director Alan Shinn, who adds that more research should be done. “Medical marijuana is a gateway to legalization. States that have medical marijuana laws are more prone to these legalization initiatives because it gives permission for people to think about these things.”

It’s the biggest reason we don’t have dispensaries here. Every time the issue is brought up, opponents bring up California and its failure to smoothly regulate medical marijuana dispensaries. “A lot of bad publicity came out of California,” says Lichty. “But we have a chance to do it better and we have 18 other models to look at,” she says. “No one ever talks about Washington, D.C., or Colorado.”

How does this relate to legalization or decriminalization? Medical marijuana made more people feel comfortable with the idea of cannabis, and brought it out into the open. “They saw that the sky didn’t fall in, that it actually had some beneficial uses,” says Lichty. “I think that made it more open to the idea of recreational use.” Today, 18 states and Washington, D.C. have medical marijuana programs, and 14 states have removed criminal penalties for the drug.

“It can demonstrate the benefits of regulation and show that it works,” adds Mason Tvert, the communications director of the Marijuana Policy Project, a national reform organization.

It’s a strategy that worked in Colorado. Not only did the state successfully regulate medical marijuana dispensaries, but local advocates lobbied to regulate recreational marijuana like alcohol in its legalization campaign.

“We can regulate anything in this country, and you can see that in anything from pedi-cabs and fortune tellers all the way to nuclear facilities,” says Colorado resident Christian Sederberg, who was one of the co-authors of Amendment 64 to legalize marijuana and is now on the governor’s task force to implement the new law in the state.

The existence of two state-level recreational regulation programs may prove as influential as medical marijuana programs have in the past.

In the meantime, the Islands will likely be stuck taking baby steps, and it may be a year or two before legislators decide to consider the issue seriously. “It should be based on science—not morality and politics,” says Lichty.