As of today, Thursday, December 6, 2012, marijuana possession is legal in the state of Washington. Under the I-502 initiative passed by the state's voters last month, adults 21 and older can now legally possess up to an ounce of marijuana (or 16 ounces of marijuana-infused edibles) without fear of arrest or criminal prosecution.
Alaska had been the only state to allow the possession of small amounts of marijuana. But, citing the state constitution's privacy protections, Alaska courts found that right only existed in the privacy of one's home.
Emboldened by the popular vote in Colorado and Washington, legislators in at least four states so far have now filed or will soon file marijuana legalization bills, with more to follow. And in states where the initiative process is allowed, activists are chomping at the bit in a race to be the next to legalize it at the ballot box (although they may want to wait for 2016, when the presidential race increases liberal turnout). And a spate of public opinion polls released since the election show support for legalization nationwide now cracking the 50% barrier.
While the federal government may attempt to block efforts to tax and regulate legal marijuana commerce in the two states, it cannot block them from removing marijuana offenses from their criminal codes. Nor can it make them reinstate them. News reports have noted that the federal government has no plans to intervene in Washington state's legalization today.
I-502 isn't a free for all. It remains a criminal offense to grow or distribute marijuana, and the state-licensed producers and stores for legal cultivation and sales and regulations governing them are a year away. There is no way in the meanwhile to legally buy marijuana. You can't smoke it in public (though that proscription is unlikely to hold for today at least), or drive in a vehicle with a lit joint (an offense equivalent to open container laws). If you live or work on federal property, you are still subject to federal drug laws. And if you're under 21, you're out of luck.
But, those caveats aside, pot possession is legal today in Washington, with sales and production coming, and that's a big deal.
"Washington state and Colorado made history on Election Day by becoming not just the first two states in the country -- but the first political jurisdictions anywhere in the world -- to approve the legal regulation of marijuana," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "The only way federal marijuana prohibition is going to end is by voters and legislators in other states doing just what folks in those two states just did."
"This is incredibly significant," said freshly minted Marijuana Policy Project communications director Mason Tvert, who just took the job after leading the Colorado Amendment 64 campaign to victory. "This is having a major impact on public perceptions and is showing that times are changing and a majority of people in various areas are ready to take these steps."
"This is the single most important event that has occurred in 75 year of marijuana prohibition," said Keith Stroup, founder and currently counsel for NORML, the National Organization for the Reform of Marijuana Laws. "The change in the perception of what is possible has been dramatic. Now, elected officials and state legislatures all over the country are honestly considering the option of tax and regulate where before November that was generally perceived as a radical proposal."
The election results are shifting the parameters of the discussion, the silver-haired attorney and activist said.
"Several states are considering full legalization now, and that makes decriminalization sound like a moderate step, which could work in a lot of Southern and Midwestern states where they're perhaps not quite ready yet to set up a regulated market," Stroup pointed out. "The context of the public policy debate has totally changed as a result of Colorado and Washington. It's as dramatic as anything I've witnessed in my lifetime."
While reformers are elated, author and marijuana scholar Martin Lee had a slightly more sober assessment.
"It's way too early to tell whether I-502 in Washington state signals the death knell of marijuana prohibition in the United States," said Lee, who recently published Smoke Signals: A Social History of Marijuana -- Medical, Recreational, and Scientific.
"The cultural momentum in the United States favors marijuana legalization, but the political response, thus far, has been lagging," Lee noted. "Political change can sometimes happen very quickly -- think of the sudden demise of Soviet Bloc Communism after the Berlin Wall unexpectedly toppled in 1989. Swift, dramatic change seems possible with respect to cannabis prohibition, which is based on lies and could collapse like a house of cards. But powerful political interests in the United States -- in particular law enforcement -- have long benefited from the war on drugs and they are reluctant to throw in the towel."
Lee also raised the specter of law enforcement retaliation, especially against some of its easiest targets.
"My biggest concern is that the new state law in Washington will do little to prevent or discourage law enforcement from selectively targeting and harassing young people, especially young African-Americans and Latinos. Racial profiling is endemic in Washington state and throughout the United States," he said.
"It's also disconcerting that I-502 includes a zero tolerance provision for under 21-year-old drivers, who could be punished severely if blood tests show any trace of THC metabolites (breakdown products) in their system. Because THC metabolites can remain in the body for four weeks or longer, blood and urine tests for marijuana can't measure impairment. What's to stop law enforcement in Washington from randomly testing and arresting minority youth under the guise of public safety?"
It remains to be seen just how the DUID provision will work out, either for young drivers or for drivers over 21, who face a presumption of impaired driving if THC levels are over a specified standard. The record from other states with either zero tolerance or per se DUID laws suggest they make little difference in DUID arrest rates, perhaps because of probable cause standards needed to conduct blood tests or the time and complexity involved in doing so.
Regardless of valid concerns, the fact remains that the wall of marijuana prohibition in the US has just had a huge hole punched in it. And the margins of victory in Colorado and Washington -- each initiative won with 55% of the vote -- leave breathing room for activists in other states to consider not including such controversial provisions, which were seen by proponents as necessary to actually win the vote.
As veteran activist Stroup put it, despite the contentiousness and the sops to the opposition, for marijuana activists, "This is a great time to be alive. I wish folks like Mezz Mezrow, Louis Armstrong, and Allen Ginsberg, who helped form LEMAR (Legalize Marijuana), then Amorphia, which morphed into NORML, could have been around to see this."
While Stroup took a moment to look backward, DPA's Nadelmann was looking forward.
"Now, the race is on as to who will be first to leapfrog the Dutch and implement a full legal regulatory system for marijuana: Washington, Colorado or Uruguay!” he told the Chronicle.