The Dynamics of Legalization | 10.6.20
The push for the legalization of recreational cannabis has really picked up in recent years in the New Mexico legislature. In this week’s episode, we look back at those efforts to date, and the strategy behind the legislation proposed in past sessions. We talk to lawmakers and advocates about how that legislation addresses complicated issues like restorative justice, protecting the medical cannabis program, and other regulation concerns.
Episode Music:
Podington Bear – “Good Times”
Christian Bjoerklund – “Hallon”
Blue Dot Sessions – “Building the Sled”
Kevin MacLeod – “Backed Vibes Session”
Growing Forward Logo Created By:
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“Growing Forward” is a collaboration between New Mexico Political Report and New Mexico PBS, and is funded through a grant from The New Mexico Local News Fund.
FULL TRANSCRIPT
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Ben Lewinger: There hasn’t been a state that was medical before, that went to a recreational market, that didn’t hurt the medical program. Either medicine became too expensive, driving, you know, patients to the illicit market, or the medical programs just disappeared and were completely enveloped by the recreational program.
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Megan Kamerick: I’m Megan Kamerick, correspondent with New Mexico PBS, on-air host at KUNM radio and a former business reporter.
Andy Lyman: I’m Andy Lyman, reporter for New Mexico Political Report. This is Growing Forward, a collaboration project between New Mexico PBS and New Mexico Political Report, with the help of the New Mexico Local News Fund. We’re looking at the state’s current medical cannabis program and what the future might hold for recreational-use cannabis.
Megan Kamerick: Today we’ll be hearing from lawmakers who have been at the forefront of legalization efforts in New Mexico.
Andy Lyman: As a lot of listeners probably already know, Governor Michelle Lujan Grisham has made a point to push for full legalization since she took office in 2019. Last year she also convened a working group and tasked them with coming up with a framework for a comprehensive legalization bill.
Megan Kamerick: Clearly, that didn’t pass, otherwise we wouldn’t be here, right?
Andy Lyman: Yeah, but in the past couple years these legalization bills have been getting incrementally closer to that proverbial finish line.
Megan Kamerick: What struck me as sort of surprising, is how proponents for legalization sort of have different reasons, or different priorities in legalizing. There are purely business and economic arguments. There are also people who believe this is a matter of equity and fairness. We spoke with democratic state Representative Javier Martinez, who’s been sort of the point person for the most recent attempts at legalization. His push for legalization seems to be less about potential revenue and more about restorative justice.
Representative Javier Martinez: Yeah, you know, one of the biggest drivers and motivators for me in sponsoring and championing recreational cannabis legalization is the social justice aspect. The war on drugs has been a complete failure, not just here at the national level but at the international level. I grew up along the border with Juarez, El Paso and I’ve seen firsthand the violence that the drug war has created south of the border. And in my life here in the united states, I’ve seen the impacts of that war as well, particularly in communities of color through incarceration, criminalization, you know, stripping people of any opportunity for a better life based solely on cannabis possession convictions. So, to me, it’s important that, when we work on legalizing cannabis, that social justice is at the forefront of that fight.
Andy Lyman: This is probably a good time to bring up the term marijuana. It’s not often talked about, but there is a school of thought that the term itself is rooted in racism.
Clip from movies/tv: Smoking pot’s illegal
Clip 2 from movies/tv: Let me get a pound of your sweetest Cheebah.
Clip 3 from movies/tv: Bud is kicking in.
Representative Javier Martinez: The term marijuana has historical racial undertones, dating back to the creation of the war on drugs. It is a word in Spanish, and it was used at the time to stoke fear in mainstream white American society, that this outsider drug was coming in and messing with our kids, messing with our young people. That’s where it comes from. And so, you know, you’re absolutely right terminology matters. Words matter and, you know, whenever you hear me talk about this, I talk about cannabis and I flinch a little bit when I hear other people call it, call it the “m” word, you know. But, obviously people are free to use the words that they want. But in terms of this legislative process and the work that I’m doing here –the appropriate name — you know, the one that is most closely related to its scientific term is cannabis and i believe we should be using that term.
Megan Kamerick: I asked Martinez what he envisions as an equitable recreational cannabis program for our state.
Representative Javier Martinez: What would equity would look for me, in this kind of industry, is where we can ensure that everybody has equal footing and the same starting place as this industry develops. What we’ve seen in other states is, you’ve had sometimes people with historical wealth, family wealth, most of the time, folks who are not from communities that have been disproportionately impacted by the war on drugs, right? They’re not African Americans. They’re not Latino. They’re not Native American. They’re not Mexican American. You know, they didn’t grow up along the border, you know, and along a Colonia. And to me, that’s, that’s a problem. And we’ve seen that in many situations, whether it’s Colorado or California or elsewhere. So, an industry where everybody gets equal footing, right? And when it comes to equity, I’m sure you’ve all seen that that graphic of the three kids standing over a fence trying to watch a baseball game, and you’ve got these boxes, right? If you’re a Latino who grew up along a Colonia, whose parents were incarcerated, perhaps for cannabis-related offenses, you grew up in poverty but you tried your best and here you are – and you’re 40 years old and this industry comes up and you can’t participate in it because you don’t have the capital to be able to afford an expensive license. But, the 40-year-old from California, Silicon Valley, moves in with his millions of dollars and gobbles up three licenses like this. That to me is an inequitable system, right? We’ve got to create procedures and policies within that framework to ensure that that kid who grew up poor in the Colonia has the ability to participate.
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Senator Jacob Candelaria: I ask myself that question, and I’ve tried to come up with the clearest way to explain it…
Megan Kamerick: That’s Senator Jacob Candelaria. He’s the first openly gay man to serve in the New Mexico legislature. He’s also been just as open about being a medical cannabis patient. He, like Martinez, wants to see a bigger focus on restorative justice.
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Senator Jacob Candelaria: But, it just strikes me as sort of cynical and inhumane that, we in this country have been content and actively pained on both sides of the political aisle for decades, to lock up brown, black, indigenous and other people of color, and especially the poor, for cannabis offenses for decades. And, it sort of offends me now that we are going to legalize recreationally. We’re going to get rid of the criminalization. But, we’re not going to do that because we recognize that the decisions we made as a country over the last decades have been racist and have had enormous effects on people of color. And I will tell you, I, as an individual legislator, am fine without legalizing recreational cannabis until we are willing and able to have that conversation and to pass the right bill. And so, I have no intent on voting for a piece of recreational legalization next session, unless it incorporates fully and embraces these very difficult issues and proposes responses. Otherwise, I plan to vote no, because there is that inherent tension between pragmatism, right, and principle. But, given all of the issues that I’ve been discussing and all of the evidence which says, right, that the war on drugs was a deliberate attempt by the federal government to imprison and incarcerate and destabilize generations of black, brown and indigenous leaders and communities, I’m going to side on the side of principle, because if not, how can we as a country say that we take racial justice seriously.
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Andy Lyman: Martinez is far from the first legislator to carry a legalization bill. In 2019, there was an attempt by a group of republicans to create state-run cannabis stores. Also, technically, Representative Martinez’s bill never really made it out of its first committee. The plan, by democrats, was to have two identical bills. One in the house and one in the senate. It became clear that the plan was to push the senate version through first. Martinez confirmed that with us and said these kinds of measures generally stall in the senate. In other words, they were not concerned with swaying voters in the house as much as the senate.
Megan Kamerick: So, what was the roadblock for that senate bill?
Andy Lyman: Well, in the committee where the bill died, there were some concerns raised about the length of the bill. Remember, Gov. Lujan Grisham had asked the legislature to come up with a comprehensive bill. Which, almost by definition, means it has to cover a lot of aspects.
Representative Javier Martinez: So, the notion that these are new concepts, the notion that the bill was too long, the notion that the bill is too complicated, was simply, in my opinion, an excuse. The bill had been vetted thoroughly through the legislative process and it had been vetted thoroughly through the governor’s task force which, as you may remember, started its work sometime last spring, 2019, and worked through the summer and into the fall with a wide and very diverse group of stakeholders at the table, including folks from the medical cannabis industry, patient rights advocates, law enforcement, public health professionals, and so many others. So, you know, that’s what we heard in our conversations, that the bill is just too complex and too much at one time. But, you know, I, as a legislator we deal with a lot of big bills, all the time. In fact, you know, I’ve made… my legislative career has focused on big bills, whether it’s cannabis or tax reform or early childhood and the notion that a bill that is 100 pages-150 pages long is too long is laughable to me.
Andy Lyman: I just want to take a moment to add some context to what Martinez said. Indeed, since 2015 at least, there have been a number of attempts to legalize cannabis and each year, there are little tweaks made. But, for sure, the 2020 bills were almost identical to some of the attempts in 2019.
Megan Kamerick: And I asked Representative Martinez about the possibility of looking towards the promulgation of rules for some things, instead of putting it all in the bill. He pointed out that while that is a possibility, in order to protect the medical program, he included the current law…which added to the bill’s length.
Representative Javier Martinez: If you were to go through the bill with a fine-tooth comb, you’ll see that a lot of that material are actually statutes that have to be referenced. So, it’s not new material, right. You’re going into criminal code and tax code and all kinds of different statues that you have to reference per the way that we draft legislation. So, when it comes to the substance, you’re looking not at 190 pages. I mean, maybe you’re looking at 100 pages, number one. Number two, I would definitely be open to looking at different aspects of the bill that might be better addressed through rule. I can tell you that there’s a whole lot in the bill already that we left up to rule. So, it’s not like we’re prescribing everything in the bill. But, if some of my colleagues in the legislature feel strongly about shortening the length of the bill and if there are particular aspects of it that they would like to see through rule instead of through statute, I’d be very open to that.
Andy Lyman: One thing I watched happen during the 2020 legislative session was this idea of restorative justice used as a reason not to pass the bill.
Megan Kamerick: What do you mean, Andy?
Andy Lyman: Well, remember, Representative Martinez said these legalization efforts don’t really bottom out in the house. The senate, even with a democratic majority, always seems to have a hard time getting these bills passed. One of the holdouts on legalization is senator joseph Cervantes from Las Cruces. Now to be clear, Cervantes has long been a supporter of decriminalizing, or lessening penalties for, cannabis. So, the senate legalization bill was heard by the senate judiciary committee, chaired by Cervantes. Cervantes seemed to take issue with the restorative justice parts. Essentially, what the bill would have done is allowed those with criminal records related to cannabis to get a chance to be involved in a legitimate, legal program.
Megan Kamerick: Representative Martinez says this doesn’t mean repeat offenders or drug kingpins like the infamous El Chapo, as Senator Cervantes claimed, would all of the sudden have access to the industry and a fat paycheck.
Representative Javier Martinez: If you look at the bill, this is really geared toward people who might have had a conviction 20 years ago when they’re 18-19 years of age. And, other than that they’ve had a stellar, clean life, other than those mistakes in the past. So, no, El Chapo would not have been able to get a cannabis license. No career criminal would be able to get a cannabis license. This is really geared for folks who may have made a mistake in the past, to ensure that they’re not shut out of something that is now poised to make some people very wealthy. And, as somebody who has experienced the violence, the grotesque violence of the war on drugs south of the border – that’s not something that i think we should even joke about. Folks like El Chapo are bad people. Folks like El Chapo are the products of failed economic policies here and abroad. Our bill was never meant to do that.
Megan Kamerick: But a legalization bill is facing opposition from more than just those who morally oppose cannabis and those who are leery about people with criminal records.
Andy Lyman: Yeah, any attempt at legalization is also going to have to convince the tens of thousands of medical cannabis patients in New Mexico that their medicine won’t be compromised. Just about every state that has legalized recreational use has seen patient numbers drop.
Megan Kamerick: So, that’s because there’s recreational cannabis and they don’t have to go through a medical program… they just go get their cannabis?
Andy Lyman: Right. Prices may be higher to buy recreational-use cannabis, but you don’t have to get a certification from a doctor, you can just go in like any other store and buy your medicine.
Megan Kamerick: But people are concerned that it might cost more and so, this is an issue that is… that’s why medical patients are worried about a legalization program, because they want to have some kind of cost protection.
Andy Lyman: Right, their concern is, if the numbers go down enough, they might do away with the medical program all together and just make it full legalization.
Megan Kamerick: Martinez told us that his last bill would have protected patients in a few ways.
Representative Javier Martinez: So, our bill has three specific provisions that would do that. The first one is to keep the patient registry within DOH (Department of Health). Keep the healthcare professionals in charge of that process, number one. Number two, eliminate gross receipts taxes from medical cannabis products and treat them like we would treat other medicines. That should make it more affordable for people, particularly for those who are chronically ill and have to purchase more product. The third provision is, by using some of the excise tax revenue to create a patient subsidy program. And that one, to me, is especially important, because it helps offset the cost of medical cannabis for, number one, seniors and number two, people who are lower income. That brings a little bit more flexibility and a little bit more equity into the medical cannabis program and should allow it, I believe, to grow with time, right? One of the arguments against us, late last session, was that when you create a recreational cannabis system, that you would have a lot of patients migrate from the medical program to the recreational program. So, our response to that was, “well, let’s make medical cannabis less expensive for people to ensure that they don’t migrate out of that program.” And, I believe that those provisions that we have in place would accomplish that now.
Megan Kamerick: Considering those with the financial means will probably pay extra for cannabis as a trade-off for not having to go get a medical card, I asked Martinez his thoughts on people doing the opposite. That is, calling in favors with friends to get medical prices.
Representative Javier Martinez: That would be illegal, right? And, I certainly would hope that people would follow the law. You know, when I go to the store and buy a bottle of wine and I’m paying taxes on that and, I know the bottle is not worth $20 (laughs). But it’s $20, right? And if I can save myself three or four bucks by buying it on the black market – I’m just not going to take that risk, you know. And my hope is that people would treat this the same.
Andy Lyman: That brings up another point, Megan. I think there might be a misconception that there is some sort of substantive difference between medical and recreational-use cannabis. Assuming New Mexico legalizes cannabis in a similar fashion as other states, I would expect producers to sell essentially the same product to both patients and recreational-use customers.
Megan Kamerick: And we heard from one producer who basically said all cannabis use is medical at some time or another.
Rachel Speegle: I think that all people are patients. I think at some point in our life, we have different types of needs. And I think that recreational programs are able to attend to a vast array of human needs. I don’t differentiate public populations from patient and non-patient. I myself go in and out of the health care system at different times in my life and become a patient. And at other times I become a provider. And I think that there are responsible recreation programs that do not overtax and do not penalize human access to this plant. And I think if we can create an equitable program that continues to focus around the medicinal needs of humans, that there can be a responsible adult use program that doesn’t need to segregate between patient and recreational use.
Andy Lyman: That’s Rachael Speegle, the CEO of Verdes Foundation, a New Mexico medical cannabis producer. She was one of a handful of producers who sat on governor Michelle Lujan Grisham’s legalization working group.
Andy Lyman (from interview): That’s actually a really interesting take. And I have heard that sort of sentiment from other people, that, the idea that we as humans sort of self- medicate on a number of different things, but that we’ve got this plant that’s not habit-forming, generally speaking, like alcohol is, but that generally we use alcohol, a lot of other substances, that we can freely buy, to self-medicate. Is that sort of where you’re coming from?
Rachael Speegle: I mean, we can dissociate in numerous ways. And it is our responsibility, as providers of this plant, to have alternatives for our clientele, to be able to provide them with resources in the community and to be a first touch for them to find alternatives to just dissociating through life. But, yeah, I really agree, Andy, that cannabis can be useful for wellness in a way that shifts from day to day and moment to moment, depending on what is thrown at us in our life, which is why every conversation within a dispensary should start with understanding the outcome that that client is looking for.
Megan Kamerick: But Speegle is not the only one contemplating this idea that all cannabis is medical cannabis. Ben Lewinger, the director of the New Mexico cannabis chamber of commerce, hinted that his group may be pushing for an expanded medical program that would look an awful lot like full legalization.
Ben Lewinger: There’s a concept that the chamber has discussed and supported and worked with, but is internally called the wellness model. And the idea is, again, really recognizing the inherent medical benefit of cannabis and using that to expand the medical program. So, in the short term, you know, especially when the state is facing budget woes… and, I don’t think anybody expects adult-use to replace revenue from oil and gas royalties… I think it would definitely be one thing that’s part of a bigger, multifaceted strategy, to eventually diversify our budget. But i think that there’s something to recognizing the inherent medical value of cannabis. And when the governor said, “we want our adult use program to be the envy of every other state,” I think that one out-of-the-box idea to immediately bring some revenue to the state, would be this wellness model, where essentially, you’re opening up the medical program to everybody. So, not purchasing cannabis recreationally, but applying to be part of the program as a wellness patient. So, all those things, where they don’t count as qualifying conditions, where right now the medical program, it’s in statute, that it is designed to address huge medical issues, but some of the more minor or the, you know, the lesser emphasized medical issues, like stress and anxiety, those could potentially be included in the medical cannabis program as a qualifying condition called wellness. And the idea is that wellness patients would be taxed at a higher rate and then that would create a mechanism to allow the state to more quickly start to generate some revenue and could potentially be a bridge to full adult-use in New Mexico.
Megan Kamerick (from interview): If I did that as a potential cannabis patient, I have to go to my doctor and say I’m really stressed, can you just give me my card so i can go to a dispensary. Is that, kind of, the model, you’re looking at?
Ben Lewinger: I think the idea is for this particular qualifying condition is you, you wouldn’t need to do that. You would be able to apply on the spot. You wouldn’t have to wait a month to get your card. And then a big point of adult-use would be tourism and generating revenue from patients or consumers out-of-state. You know, part of the opportunity, and i think one of the reasons we’re in this moment now is New Mexico could potentially get revenue from out-of-state purchases. So, for the wellness model to work, it would probably need to have a mechanism to allow for somebody to come across the border and purchase medicine and legally consume medicine in New Mexico. But the idea behind wellness is that it wouldn’t have the same weight or the same process that you do if you have other qualifying conditions. You’d be able to, essentially get a card on the spot.
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Andy Lyman: There’s one other option for legalization that we haven’t talked about yet, which is a constitutional amendment. Just to take a step back for a moment: there are a number of states that legalized recreational-use through voter referendum. In other words, the people of those states voted to legalize cannabis and bypassed the legislative process. But New Mexico law doesn’t allow for that except through a constitutional amendment.
Megan Kamerick: I think we’ve tried that a number of times, right?
Andy Lyman: Yeah, we have a lot. But it’s never actually made it to the voters. Mostly because putting an amendment to voters still requires a two-thirds vote of the legislature. Of course, one of the big questions for amendments in general, but this issue especially, is do we want this in our constitution? We asked that question of Representative Martinez as well.
Representative Javier Martinez: I don’t believe the constitution is the place for cannabis legalization. Just like I don’t believe the constitution is the place for a number of other issues, right? We have a legislature for a purpose. Voters elect us for a purpose, to take these hard votes and to take a position on some of these issues. So, I’m philosophically… as a lawyer, as somebody who studied constitutional law, I’m very resistant to the idea of legalizing cannabis through a constitutional amendment. I think it tells the voters that we’re either afraid or too lazy to tackle an issue as big as that. Having said that, if that is the only way in the near future that we might be able to legalize cannabis and to create a brand-new industry from which every citizen of New Mexico can benefit from, then I’d be open to it. It’s going to take longer. Assuming that we pass a constitutional amendment to legalize cannabis in 2021, it would not be on the ballot until the 2022 general election, unless we call a special election, just for this issue, which could be costly and just, cumbersome, i think. Beyond that, we would still have to deal with enabling legislation, which could either run parallel to the constitutional amendment or that we might wait until the voters approve legalization. So, now we’re talking the legislative session in 2023, which to me, is a long time. By 2024, I would predict many, many other states would have legalized already. And in many ways, we would be missing out on, you know, capitalizing on a brand-new industry that we know is producing a lot of wealth for a lot of people in a lot of states.
Andy Lyman: So, it doesn’t sound like Representative Martinez will push for a constitutional amendment, but Governor Michelle Lujan Grisham indicated at the end of this year’s regular session that every option was still on the table. Just to be clear though, she didn’t explicitly say she was going to push for an amendment.
Megan Kamerick: And it sounds like other lawmakers are steering away from that option. Here’s Representative Debbie Armstrong, who is an ardent supporter of legalization and a co-sponsor of Martinez’s bill this year.
Representative Debbie Armstrong: constitutional amendment, we still have to come up with the legislation to enact it. So, I don’t know that that takes us anywhere, unless it unless it gets a significant number of votes that we wouldn’t get to pass it, by taking it to the voters. But otherwise, i think that kind of slows it down and we’d still have to circle back around and create the legislative framework for implementing it. So, you know, my preference, I guess, would be to continue working on the legislation.
Andy Lyman: we saw a push for amendments during the last administration, under former Governor Susana Martinez, because she made it clear she wouldn’t sign a legalization bill.
Megan Kamerick: Now we have a governor who’s in favor of legalization, but the question remains: will there be enough votes to get the bill to Governor Lujan Grisham’s desk?
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Megan Kamerick: Growing Forward is a collaboration between New Mexico PBS and New Mexico Political Report, thanks to a grant from the New Mexico Local News Fund.
Andy Lyman: Our producers are Kevin McDonald and Bryce Dix. Music is by Podington Bear and Christian Bjoerklund. Be sure to subscribe to “growing forward” wherever you get your podcasts. And you can also get caught up on all of episodes by heading to nmpbs.org and searching for “growing forward”
Megan Kamerick: Join us next week when we dive headlong into the business aspects of legalized cannabis in New Mexico. It could have a big impact on the state budget, but there are a lot of other issues to consider.
Duke Rodriguez: So, the fees to get into this industry are extremely high and extremely prohibitive. So, it’s not only just the number of licenses, it’s the regulatory environment that we’ve created to allow people to participate in this industry.
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