Jacob Sullum has a detailed discussion in Reason's "Hit & Run" blog of "What Legal Pot in Washington Will Look Like." Jacob compares Washington's I-502 with Colorado's Amendment 64 and notes that while both initiatives legalize marijuana for adults 21 or over, and authorize state-licensed marijuana stories, in other (but not all) ways Washington's law is more restrictive than Colorado's.
Conversely, Washington's law does not allow local jurisdictions to ban marijuana stories within their borders, an option that cities in Colorado will have. If you've followed the Medical Marijuana Update series that Phil has been writing in our newsletter, you'll probably agree that that is a big benefit.
Unlike Colorado's law, which can only be changed by constitutional amendment, I-502 can be amended by the legislature at any time -- with a 2/3 vote for the next two years, or by majority vote after that. Our friend Roger Goodman, election this week for a fourth term in Washington's House of Representatives, told the Seattle Weekly last month that he and Sen. Jeanne Kohl-Welles hope to address the DUI issue, and improve the state's medical marijuana system, perhaps through requiring that impairment be determined by independent experts rather than the per se DUI standard or other means.
Hopefully other changes or expansions to the law will become possible over time too, as voters and legislatures become accustomed to marijuana being legal and are satisfied that things are working. Unlike with medical marijuana, non-patients (over 21) obtaining marijuana will not be an issue anymore in Washington or Colorado.
John Stewart just took the media to task for all the marijuana jokes. Marijuana prohibition is a serious matter. Of course the show was funny nonetheless. :)
Update: Video is available now, in two parts:
|The Daily Show with Jon Stewart||Mon - Thurs 11p / 10c|
|Post-Democalyptic World - Potted Up|
Though the law goes into effect on December 6, it is December of next year when the licensing system for sellers is scheduled for. (If you think that's a long time, don't ask me how long we've waited for Washington, DC to get its medical marijuana law moving.) An evaluation is to be published in September 2015. (Which is as long as DC is taking to just get started.)
502 does not provide for home growing. But patients maintain their home growing rights under the state's medical marijuana law.
Some of the network media have been trying to cover the legalization of marijuana in Colorado and Washington and clearly are in catch-up mode, not really knowing how to talk about it. And they're completely thrown by the fact that the DOJ, for the most part, isn't coming right out and commenting. So they're all forced to turn to… Kevin Sabet.
Kevin is a former Office of National Drug Control Policy staffer -- Phil faced off with him in The Fix on Tuesday. He had a respectable level position at the agency, from what I understand, but he was not the drug czar or near it, and he doesn't work at ONDCP now. Pete questions why media would think he knows what's going on behind the scenes or why we should think he does.
I'll just comment on two things from the ABC article by Christina Ng that Pete highlighted:
"When you have the governors of both states [opposing it] as well as the president and Congress, who has already determined that marijuana is illegal, this is not going to be a walk in the park for marijuana enthusiasts," Sabet said. [...]
That is an inaccurate characterization by Kevin of the positions of the governors. Colorado Gov. John Hickenlooper opposed the initiative, and according to the Denver Post is speaking with federal officials to assess their intentions -- Eric Holder, head of all DOJ, not ONDCP. But Hickenlooper also told the Post that "[y]ou can't argue with the will of the voters" and they plan to move forward with it. Washington governor-elect Jay Inslee has also said that he'll respect the will of the voters.
The second is a paragraph that was not presented as a quote, so I don't know precisely what Kevin told Ms. Ng, but here it is:
In 2005, the Supreme Court by an 8-0 margin struck down a California law that legalized medical marijuana in the state. The Court said Congress had the power to criminalize marijuana under the Commerce Clause.
Raich v. Gonzales was actually 6-3, but more importantly, the court did not strike down California's medical marijuana law! What the court did was decline to limit the reach of federal law. There's a difference.
As I discussed yesterday, state and federal law can be different, but that doesn't mean they're in conflict. And not every type of conflict is legally impermissible. California's medical marijuana law is very much in effect -- the trouble there is to providers, not directly to patients, and it's from federal raids and other actions, and local zoning restrictions. Tellingly, no federal prosecutor in 16 years of state medical marijuana laws has ever tried to undo one of them in court.
Perhaps they'll try now with one of the legalization initiatives, but their prospects for success on that route are unclear. What seems most unlikely is that states would be forced to reverse not only their licensing provisions, but their elimination of penalties for users and some sellers; much less that federal agents, more limited in number than state and local police, would conduct the massive numbers of possession busts (or in Colorado home growing busts) needed to keep prohibition going at that level. That's why the medical marijuana laws work.
In the meanwhile, police and prosecutors in Washington have more or less confirmed the walk in the park beginning December 6th.
Prosecutors won't charge marijuana possession cases anymore, starting December 6th:
Ian Goodhew, deputy chief of staff for the King County Prosecuting Attorney, says his office is trying to figure out how if they will charge the marijuana possession cases are pending. "We haven't figured out how we will handle all of those cases," he says. But assuming the possession portion of the law is not federally challenged -- and no credible lawyer thinks the possession portion can be -- Goodhew says that in future cases, "we cannot charge someone under state statute."
Sergeant Sean Whitcomb, a spokesman for the Seattle Police Department, says this: "For us, the law has changed, and people can expect no enforcement for possession."
Or to put it another way: Yesterday Really Happened.
"The department's enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiatives and have no additional comment at this time."
I haven't seen the statement on the DOJ web site yet. Perhaps it's only been sent to media outlets. Colorado's governor, meanwhile, hopes to talk to US Attorney General Eric Holder as soon as this week, according to the Denver Post.
Gov. Hickenlooper and CO Atty. General John Suthers both have said they intend to respect the will of the voters. But if the feds tell them that Colorado can't do this, that would be a convenient answer for these officials who probably don't want the trouble, especially when a little time has gone by and the spotlight on them over the amendment is a little less intense. So far DOJ's statements as well as Hickenlooper's sound accurate to me, to the extent that I've studied them. But it's important to be prepared to communicate a factual understanding of how the law works, in the event that federal or even state officials attempt to obfuscate.
As a CNN legal analyst this morning commented (email or post if you know his name), federal law toward marijuana, and state law in Colorado and Washington (as well as all medical marijuana states) are different. But that doesn't necessarily mean that they "conflict." Specifically, it doesn't mean that they have a "positive conflict." If the state itself were to sell or traffic in marijuana, that would be a "positive conflict" with federal law. But Colorado and Washington have no obligation to enforce federal drug laws. The legal question as far as federal preemption is whether they can issue licenses to marijuana sellers that protect the sellers under state law.
My understanding of the law as well as that of colleagues I've spoken with is that this is not a positive conflict, as it does nothing to prevent the feds from making a drug bust if they choose to do so. It may well get tested in court. But it's worth noting that in 16 years of state medical marijuana laws, no federal prosecutor in the country has ever tried to preempt state medical marijuana laws -- they've busted dispensaries, but they have not tested the laws themselves in court. The same law is at stake with these legalization initiatives, with the difference being the scope of what they legalize and regulate.
My guess is that DOJ will face greater pressure to try to lawfully preempt one of these laws (as opposed to squashing them by force) than they have felt with state medical marijuana laws, even if they are doubtful of their chances for success. But time will tell. For us, the thing to remember -- and to point out whenever it comes up -- is that federal law and state law are "different" -- they conflict politically, but that doesn't mean they conflict legally. The feds don't have a lot of incentive to acknowledge this, and as the statement shows, they can can be factual but still leave out that important point.
When I first noted last night that Colorado's Amendment 64, marijuana legalization, was ahead, partial results had it leading with a little over 52% of the vote, with exit polling reportedly at 57%. When the Denver Post called the measure as passing, it was over 53%. The official Colorado election results now have Amendment 64 at 54.82% voting yes -- almost as high as Washington I-502's 55.44%.
When I first noted that Montana's medical marijuana initiative wasn't doing well, I linked to the state election results page but didn't write out the percentage split, 58-42. Maybe I didn't want to. It was still at that level later in the night. But as of right now (with still a bit of counting to go), I-124 was up to 43.45. (As we noted before, our side was hoping for a "no" vote on the initiative -- the "no" referring to a bill passed by the legislature that weakened the initiative passed by voters.)
Every little bit counts, and some of thes increases mean more than a little bit. Of the three defeats (Oregon, Arkansas and Montana), Montana's worries me the most, as it is a tough situation right now for the state's medical marijuana community, with both the state and the feds. But maybe our national momentum for marijuana law reform will make more things possible soon, maybe even in Montana. Phil wrote a feature story on the legalization initiatives last night -- live from Amendment 64 campaign headquarters -- and will be coming out with another on the rest of the election story later today.
There were public policy questions on the ballots of 45 cities in Massachusetts today, asking voters their opinion on marijuana legalization. Boston.com has results for most of them -- all winning.
Winning means that the people have spoken that they'd like (but don't require) their state representatives to vote in favor of legislation to legalize marijuana.
So another congratulations tonight for Massachusetts.
California's three strikes reform, Prop 36, is up to 68%, with 14% of precincts partially reporting.
Montana still losing 58-42 (or passing -- which for us means losing).
Arkansas is still losing 48-52, with 65% reporting.
Note that it's possible that some news outlets may have higher percentages reporting, if they got results through routes other than the state web sites.
(Hat tip Eric Sterling for the link.)
First marijuana legalization vote!!!!!!!!!!!!!!!!!!!!!!!
There are postings on Facebook saying that Colorado's Amendment 64 for marijuana regulation has been called as passing. I don't think that's possible, with the amount of reporting so far. What I think people are thinking of is that the Denver Post has projected it passing. Things are looking very good, but I don't think it's been called yet.
Massachusetts has passed medical marijuana!
First results for Montana are not good, but very little of the state has reported yet. (Note that the result we want is "no," to undo the legislature's restrictions on the state medical marijuana program, whereas it's running 58% toward the "yes" side.)
Arkansas medical marijuana is also trailing 48-52, 27% reporting according to Huffington Post.
Colorado is up to 52.7% for legalization!
California's Prop 36, to reform the state's three strikes law, is leading with 61.5%, but also very little of the state counted.
Anxiously awaiting Washington and Oregon news.
As of 8:12pm mountain time, the Colorado secretary of state site shows Amendment 64 leading 671,027 to 610,202, over 52% in favor. The site says that Colorado has 3,647.082 registered voters, with 31.41% of them having had votes counted so far. Assuming Colorado doesn't get 100% voter turnout, does this mean half the vote counted so far? Very promising.
Update (8:24pm mountain time): MPP says exit polling is at 57%.
We're trying something new -- hopefully it will work. Email me us video of your election-night initiative watching parties, and we will post some here -- send them to firstname.lastname@example.org. Footage we'd be interested would include, but is not necessarily limited to:
- ecstatic cheering and hugging or other displays of joy (if we win something);
- what you've learned as an advocate from a victory or loss;
- your interpretation of the day's returns;
- what you did to help pass something;
- what you think the next steps are for the movement.
Footage we'd be unlikely to post would include:
- gloom and despair (if we lose something);
- visible use of marijuana or other drugs;
- anything we'd have to edit before posting.
Today is the big day! Marijuana legalization is on the ballot in Washington, Oregon and Colorado. Medical marijuana is getting votes in Massachusetts, Arkansas and Montana. And California is voting on a much-needed reform to the states draconian "three strikes you're out" law -- not solely drug policy reform, but includes drug offenses within it. There are also some measures on local ballots. See Phil's report last week for an overview.
In the meanwhile, what does the latest polling say? In Washington, polls conducted last month through early this month show I-502 leading by margins ranging from 4 to 19 points, with support ranging from 47 to 56 percent in favor and 36 to 44 percent opposed.
Polls in Colorado taken during the same timeframe show Amendment 64 in the lead with margins ranging from 10 points on the upper end down to just one end on the lower. Support ranges from 46 to 53 percent and opposition ranging from 40 to 45 percent.
"Passage would be driven largely by the support of younger voters, who sometimes are less reliable, turnout-wise, than are older voters," the polling firm SurveyUSA, which conducted the survey for The Post, wrote in a memo explaining the results. "Older voters oppose Amendment 64, and if the amendment should go down to defeat, it will be because younger Coloradans talked the talk but did not walk the voting-booth walk."
No pressure or anything, young voters, says SSDP's Aaron Houston.
Only three polls have tested Oregon's Measure 80, one in late September and two in October. Support and opposition have both risen (not surprisingly, as undecided voters make up their minds), and the last one has the measure losing 49-42. Oregon reformers should still turn out to the polls, though -- margin matters, even in a defeat -- plus a poll is only a prediction -- the only poll that counts is the big one happening taken today.
See you online tonight!
Ballot measures to legalize marijuana in Colorado and Washington are polling strong on the eve of the election, and for many, this is a moment as momentous or more so than the presidential race itself. I've been too focused on other projects to comment regularly this time around -- and it hasn't been easy -- but tonight I can think of nothing else. And if you're reading this, I imagine you're thinking what I'm thinking.
Whether we win, lose, or a little of both, there's no question that we've taken this fight further than a lot of people thought possible when I was a young activist (and I'm still not that old yet). I haven't forgotten the time I spent explaining to friends and family why I was doing this work and that I wasn't doing it for fun; we do this to change lives and change our country for the better. As those changes grow ever more tangible, the momentum of our movement becomes self-evident and the people who once stood in our way step slowly back into the shadows.
Where once a powerful alliance of prohibitionist power players dogged us at every turn, it feels lately as if there's no one on the field anymore except us, Kevin Sabet, and a random assortment of disoriented profiteers on both sides who'll continue to fear change until they learn not to. The polls, meanwhile, move in our favor as fast as you can count them and the myth of marijuana policy's fringe position in American politics is dying an overdue death before our eyes.
All of this is true even if we don’t move the ball as far forward tomorrow as we hope to. I'm saying it now because we have a lot to be proud of either way. I also just wanted to say something because I've been quiet for a little too long lately. If tomorrow goes our way, you can bet I will be anything but quiet.
Tomorrow, three states will vote on the most profound change in US drug laws since the repeal of the Volstead Act in 1933. The Fix offers two powerful opposing views on whether legalizing weed is the right thing to do.
The founder of the flagship medical marijuana center, Harborside Health Center in Oakland, speaks out about how important it is to pass I-502 and how damaging a "no" vote on it could be for people's lives.
Readers of StoptheDrugWar.org know that we've supported Initiative 502, a ballot measure to legalize and regulate marijuana in Washington State. I-502 has seen the strongest polling among the three legalization measures on state ballots this year, and has attracted significant mainstream support -- its chances of passing this Tuesday are good. The measure has also been the subject of controversy within the movement, particularly over a "per se" DUI provision some advocates believe will unfairly snare some users including patients. If you've followed our coverage of I-502 in Drug War Chronicle, including two of our recent features (here and here), you're familiar with all of this.
The reality facing Washington's patients today is that they may soon lose safe access to marijuana. The federal government is conducting a sustained attacked on the medical marijuana supply system in states across the nation, including Washington's, and local opponents have also stepped up their efforts. Legislation that would have authorized dispensaries, which could have provided some political cover for providers in Washington, was vetoed by the governor. Just this August the DEA sent 23 threat letters to dispensaries in Washington, only the latest of many moves against the industry. And there is no indication that DOJ under Obama or Romney will let up after the election, hope for that as we might. Washington a few years from now may have no medical marijuana supply system at all, if something doesn't change to shift the balance in our favor.
In Washington, the medical marijuana system is already a smaller one than available in some other medical marijuana states, despite courageous efforts by its leaders. Fewer patients qualify for legal protections under the list of conditions authorized under state law; it's likely that a smaller proportion of the state's residents live within easy geographic proximity to a dispensary as well. A 2011 report by See Change Strategy, prepared before the escalated federal and local crackdowns, found 11,000 dispensary customers in Washington, compared with 500,000 in California -- fewer than 1/8 as many, adjusted for the states' populations. Compared with Colorado, Washington's system -- again, before the crackdown -- served fewer than 1/14 as many people, adjusted for population.
But even those numbers understate the true depth of harm done to patients by the current system. All of us know people who suffer from conditions that could well be treatable using marijuana, but who may never find that out -- because they won't try it while it's illegal, or because their physicians aren't comfortable recommending marijuana without being able to guarantee the quality of the supply. Along with the current patients whose current safe access to marijuana may be slipping away, this other, possibly much larger group of potential patients, are also being badly harmed by the current situation -- by prohibition.
In the face of the federal onslaught, we believe a victory is needed at the ballot in order to shift the political dynamics in our favor. While some have suggested this could be accomplished in 2014, with a different initiative, that seems poorly thought out. Along with that meaning two more years and all that can happen in that time, 2014 is an off year election. That means that election turnout demographics will work against any such initiative, because off years favor the conservative voting base that leans against marijuana reform, over the liberal base that leans toward it. Funders witnessing a loss this year by a carefully regulated initiative, will in turn be unlikely to bet on a more loosely written one passing the next time. Progress of this scale -- enactment by a state's voters of actual legalization, not just medical marijuana or decriminalization, a historic first -- will probably be out of reach again until 2016. Public support for legalization in principle continues to grow and is now around 50% nationally. But while we believe support for legalization is likely to continue to grow, we don't know that it will and we can't take that for granted, especially if we don't win something. Legalization needs a victory this year.
We also believe that more people than just the currently recognized patients need the protections that legalization of possession -- and of legal sales, if I-502's state-licensed stores survive the likely federal opposition -- will provide for them. Washington had between 12,000 and 15,000 arrests per year between 2006 and 2010 -- 240,000 total marijuana arrests from 1986 to 2010. Those include minors who will still face age limit laws under I-502. But half or more of these arrests would clearly stop under the new law. A marijuana arrest is a big deal; in Washington it includes a fine and mandatory jail time in most cases. Defendants spend money on legal fees; they face restricted access to housing and college aid; they become disadvantaged in the job market.
I-502 won't undo all of this harm, but it will undo a lot of it. The characterizations opponents have made of the initiative as providing only "limited" or "modest" benefit are bogus. Even more strained is the claim some opponents have made that I-502 is not even legalization. But I-502 legalizes possession and sale of marijuana, albeit within a particular framework -- of course it's legalization. Some forms of legalization do more of what we want than other forms. Advocates make compromises, if they are effective, because they understand that that is what's needed to change things.
A final argument opponents have made is that I-502 is not legalization because federal law will preempt the state licensing system and could endanger other parts of the law. But while preemption is a risk, it's not a given -- no federal prosecutor has even tried to legally preempt a state's medical marijuana law, for example, in 16 years of them. And the same line of reasoning would say that any legalization bill passed by a state would really not be legalization, because federal prohibition is still in place. Which of course makes no sense -- and which would mean that initiatives some critics of I-502 have attempted to place on the ballot were not legalization either. Obviously our goal is to change both federal and state law.
It's possible we might have reached a different conclusion about I-502, if we were persuaded that DUI busts because of I-502 could happen commonly. But the critics have ignored key facts about the issue in order to make that case. The provision excludes the inactive but long-lingering marijuana metabolite, THC-COOH, from the reach of the law, counting only the shorter acting THC metabolite. It leaves in place the "probable cause" requirement on police of impairment being demonstrated before they can lawfully stop a driver and order a drug test. Police still need to spend time and money taking a driver to the station for a full drug test -- they can't just write a ticket and drop the drugs off for testing later.
Perhaps for these reasons, the 13 states that already have similar provisions have not seen perceptible increases in DUI busts. Yet movement opponents of I-502 scarcely acknowledge any of these points; a recent editorial by Sensible Washington treasurer Anthony Martinelli is a good example. Leaving them out skews the issue very badly. Conversely, however, one should admit that some marijuana users in Washington may get stuck with a DUI charge that they don't deserve -- and if you're one of those few people, it won't necessarily help you that there are only a few. There is a legitimate issue at stake with the DUI provision and it's a legitimate discussion to have. But it's a very different scenario than the doomsayers have presented.
It has been charged that movement opposition to I-502 is driven by the financial motivations of people profiting from medical marijuana under the current system. But while this is doubtless one thing that is going on, some of the critics of I-502 are respected advocates, including personal friends, who have never had a financial motivation for their activism. With all due respect to them, we believe they have badly misjudged the I-502 question, in at least the following ways: They have misidentified the primary threats facing medical marijuana patients. They have dramatically overestimated the realistic impact of the DUI provision -- ignoring relevant facts in order to do so. And they have underplayed the scope and significance that passage of I-502 will have, both legally and politically.
StoptheDrugWar.org endorses Initiative 502, a major step forward for the legalization movement, and a necessary step to help secure the rights of many thousands of marijuana users, including patients, and others.
[Washington's I-502 is one of three initiatives on state ballots to regulate rather than prohibit marijuana. We encourage all supportive parties, as we have before, to make phone calls to likely supportive voters in Colorado and Oregon -- for which a "phonebanking" web site has been provided by our allies -- for those in Washington to contact the campaign to volunteer in person. Links to the campaigns and to a "phonebanking" web site provided by our allies are linked to from our election resources web page at http://stopthedrugwar.org/election2012.]