Phil will be doing a feature story on the bill tomorrow, but not in time for tomorrow morning's email editions, so be sure to check Drug War Chronicle this week. (If you don't get the Chronicle by email, you can sign up here.)
"NYPD Spent 1 Million Hours Making 440,000 Marijuana Possession Arrests Over Last Decade"
Many of those hours involved overtime pay too. It really sums up the stupidity of it all, in a pretty special way. (The injustices were addressed last week.)
Also, there's a lawsuit, and a judge told NYPD to stop "stop and frisk" arrests in the meanwhile. (But have they?) And Gov. Cuomo continues to push for full decrim to plug the "open view" loophole officers have abused to make all these arrests.
Phil is working on a story for the Chronicle, but there are some links in the meanwhile.
Prof. Kleiman has responded to concerns raised over his remarks during the Prop 19 campaign in California, predicting that Prop 19 would cause prices to plummet and that the feds would have had to intervene in ways going beyond how they've dealt with the medical marijuana trade. He doesn't see that happening in Washington State; he thinks it may well happen in Colorado. He called it a "fair question."
I'm not making anything out of the fact that Kleiman hasn't addressed that point, by the way -- I don't know that he's read my post yet, and that particular point did not appear in the mainstream media articles he surely did read. Nor do I think that much should be made of it in 2013. But that's how I see that particular point, and therefore how I view that two and a half year old editorial.
I'm still cautiously optimistic, after reading the response, maybe even a little "excited" (I confess) as Kleiman wrote that he and his colleagues are feeling. Some of my colleagues have commented, and I tend to agree, that a cautious approach to implementing the Washington initiative is what will have the best chance of threading the federal needle and moving legalization forward -- especially in Washington, where the law allows for fewer licensed sales outlets and doesn't have home growing as Colorado does. And Washington or parts of it may provide our best shot at getting something resembling meaningful federal cooperation.
Some of my colleagues probably disagree with me, and many undoubtedly feel we should be wary. As a practical matter, I agree that we should be wary -- it's our responsibility as advocates to be wary, whoever the state decides to bring in. But it's also not like we get to decide who does the work on this -- our direct power to influence this ended on election day -- and I wasn't really expecting it to be someone from the all-out legalization camp.
As I wrote last night, time will tell -- about Kleiman et al's work, and about the future of I-502 and marijuana legalization in Washington State.
Prominent policy analyst and UCLA professor Mark Kleiman has won Washington State's consulting contract on I-502 implementation. According to Northwest Public Radio, "Washington's Liquor Control Board wants consulting help in four areas: marijuana industry knowledge, plant quality and testing, regulation, and to the extent possible, projecting how many people will use pot now that it's legal."
A quote that caused some consternation among reformers is one he gave to the LA Times during California's 2010 Prop 19 campaign:
"There's one problem with legalizing, taxing and regulating cannabis at the state level: It can't be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can't legalize a federal felony. Therefore, any grower or seller paying California taxes on marijuana sales or filing pot-related California regulatory paperwork would be confessing, in writing, to multiple federal crimes. And that won't happen."
I think the quote deserves some criticism. Medical marijuana provision is also a federal felony, under the same law Kleiman cited with regard to legalization of marijuana. Kleiman's arguments in the piece -- that the feds can afford to largely ignore the medical marijuana industry only because prices remain high, and because regulation of medicine is traditionally a state matter -- are unpersuasive to me. Administrations in power during the medical marijuana years have not suggested that medical marijuana is a state matter; even Obama's inconsistently-respected "not a priority" position about going after businesses operating in compliance with state law, made clear that they can go after any medical marijuana business if they think it's in the federal interest to do so. And Kleiman or his coauthors during book talks and related fora I've attended have argued that we don't know what will happen to marijuana prices following state legalization in the face of continuing federal prohibition. One reason they've argued it might not is that federal prohibition makes it too risky to set up the very large scale growing and distribution infrastructures that are needed to bring down prices in the way that we'd predict from legalization at all governmental levels.
Still, I count myself among the optimistic when it comes to Kleiman's work for Washington State. Kleiman prefers a very non-commercial form of legalization to any big sales model. But he's also suggested the federal government allow the Washington and Colorado experiments with legalization to take place. And whatever quotes I might take issue with from time to time, Kleiman is a very serious academic who's written extensively about the issue; and he's not a drug warrior, even if his support for legalization, even of just marijuana, tends toward the tepid. I expect he'll do the best job he can on this very high profile assignment -- that assignment being to advise on the implementation of legalization, not on whether it's a good idea. (I also saw Kleiman wearing a Students for Sensible Drug Policy t-shirt at the Takoma Park Folk Festival one year. :-)) I can think of plenty of people who might have been in the running for the job, who would make me a lot more nervous than Kleiman. But time will tell.
Anyway, along with some articles linked here, CNN has pitched an interview with "Washington State's New Pot Czar" on "Erin Burnett OutFront" tomorrow (Tuesday) night. Perhaps the interview will provide some indicators of where Kleiman might go with this.
A recent report by the UN special rapporteur on torture charged that compulsory drug treatment centers in some countries, particularly Vietnam and Thailand, constitute "forced labor" camps that engage in "torture." Long-time addiction writer Maia Szalavitz wrote about this in Time last week, and Phil did in our newsletter last Monday. The report is online here.
Nevertheless, in its 2011 annual report, published five months after HRW's, the International Narcotics Control Board had only this to say in relation to Vietnam's treatment centers:
In September 2010, the Government of Viet Nam issued a decree on the strengthening of family-based and community-based drug treatment and rehabilitation services. In March 2011, the Ministry of Public Security of Viet Nam adopted measures to improve the collection and analysis of drug-related data. In June 2011, the Government of Viet Nam adopted the national strategy on drug control and prevention for the period ending in 2020. Based on that strategic document, the national target programme for the period 2011-2015 was developed to address drug-related issues in the country.
The Board welcomes the steps taken in Viet Nam to improve the treatment and rehabilitation of drug abusers and the efforts made in participating in different projects sponsored by [the UN Office on Drugs and Crime, UNODC] in that area. The Board encourages the Government to reinforce and support existing facilities as well as to undertake capacity-building in the field of treatment for drug abusers.
The 2012 INCB report, released last week -- more than a month after the special rapporteur's report was released -- offers just this:
The Government of Viet Nam launched its new national drug control and crime prevention strategies in July 2012. The strategies highlight the need for a comprehensive national response that combines effective law enforcement, drug abuse treatment and rehabilitation measures that allow for better integration of former drug dependent persons into society and the active participation of communities in crime prevention.
I understand that any system involving confinement has the potential for abuse, in the best of times and places, and that any one report on a subject can miss the mark. But we have allegations from a respected organization, and now from the UN itself, of systemic abuses, of a degree of seriousness that would seem to invalidate the entire project. Presumably international funding is in the mix at well. So why not even a word about it, from the self-described "quasi-judicial body" overseeing the international drug control regime?
Open Society Foundation's Joanne Csete noted comments by the late Hamid Ghodse, then INCB chairman, at the Commission on Narcotic Drugs last year, disclaiming any role for human rights concerns in the drug treaties or his agency. But that is not the stated position of the other main UN drug agency, UNODC.
So do we have a scandal in the making -- or better yet, an opportunity to reform the international drug control regime?
[By the way, Csete's afore-linked essay is part of the LSE IDEAS report included in our current membership offers.]
I am presenting at a symposium sponsored by the Cardozo Public Law, Policy and Ethics Journal, "The War on Drugs: Working Toward a Ceasefire," this Wednesday 3/13 at Cardozo Law School in NYC. The event includes a screening of the Eugene Jarecki documentary "The House I Live In," at 10:00am. My panel starts at noon, there's a second afternoon panel, and a keynote address by Judge John Gleeson on federal mandatory mandatory minimum sentencing. It is open to the public, but RSVPs are required in order to gain entry to the building -- email the Journal or use the Paperless Post invitation to sign up.
Both of those positions may be overreaches. It's true that federal marijuana legalization would require revision of the drug treaties, if the US is not to be in violation of them (or for the US to do what Bolivia did by withdrawing and then rejoining "with reservations"). Legalization by Congress even just within states that have enacted it is also a likely treaty issue. But Colorado and Washington aren't parties to the treaties, and federal law remains in force within those states. The states have simply ceased to contribute their own resources to a part of the prohibition program. Under our federal system they very probably have the legal right to do so.
And that is why the DEA chiefs have overreached as well. When one says that federal law is supreme in this area, it means that federal agents can use the powers they have to bring criminal or civil actions against marijuana users or sellers, despite the passage of state laws -- the Raich case decided that for medical marijuana, for reasons that would seem to apply to fully legalized marijuana too. But that doesn't mean the states have to help them. We have a federal system. As I've pointed out previously, no federal prosecutor in 16 years of state medical marijuana laws has ever argued in court that the states can't have those laws on their books. Clearly they've had incentive to do so, if they thought they could win that way.
I don't argue that we know for sure how these points will come out if they are adjudicated -- it is new legal territory. But most legal scholars seem to think a preemption ruling would be a long shot outcome. So that is how it looks to me.
[If you haven't already, please order the two recent reports, from the Cato Institute and the London School of Economics, addressing these two very issues -- available in harcopy on our web site for a small donation.]
"[D]ecriminalizing possession is not in the EU strategy, but if you take the EU strategy as a whole, the clear conclusion is that all-out prohibition is ineffective, expensive and not supported by any evidence base."The EU can't enact decriminalization itself, but through the thrust of its strategy they provide political ammunition to policymakers who would like to move their national policies in that direction -- in countries that are EU members as well as countries applying for EU membership.
This is what he had to say about the United States on drug policy:
"With the US, we tend to disagree on a lot of things -- we've had the US against us in Vienna [where the UN drug agency is headquartered] for quite a few years. The US is allergic to a lot of the European evidence-based approach and appears to be far more interested in supply reduction then in harm reduction. And it's not very fussy about human rights."
Relatedly, there are some very enlightening articles on both of those topics in a recent London School of Economics IDEAS special report, Governing the Global Drug Wars. (This is one of the two reports whose hardcopies we're providing as part of our latest membership offer.) Another big of StoptheDrugWar.org promotion: check out speeches by (now former) Member of the European Parliament Marco Cappato at our 2003 conference in Mexico, "Out from the Shadows: Ending Drug Prohibition in the 21st Century."
I am participating on a HuffPost Live panel starting at 11:30am EST this morning: Is Mexico's Security Policy Failing?
Update: The archive is already online, embedded below. The link from the live broadcast is also the permalink.
The panel was hosted by commentator Alicia Menendez, and I shared the panel with Alejandro Hope of the Instituto Mexicano para la Competividad, Prof. John Ackerman of the Universidad Nacional Autónoma de México, and former ONDCP official Paul Chabot.
Harborside is in the news again today. Two weeks ago we noted the premiere (and largest) dispensary had won a battle in state court. Facing threats by federal authorities over Harborside's marijuana distribution, their landlord attempted to evict them, only to be rebuffed by a judge because she had authorized Harborside to engage in exactly that business there in the lease.
"We invited (U.S. Attorney) Melinda Haag to come to Harborside to tour to take a look at the way we do things," Harborside Executive Director Steve DeAngelo said Thursday outside court [according to NBC]. "Because I think the federal government should be studying Harborside not trying to close us down. We've developed a great model for responsible and legitimate distribution of cannabis."
According to the LA Times, the city's lawsuit "contends that federal prosecutors missed a five-year statute of limitations to seize Harborside's properties and misled Oakland officials with a 'pattern of false promises' that they would not go after dispensaries that were complying with state and local laws." The feds in turn say they've always reserved the right to go after any dispensary, and dismissed attorneys' arguments about the needs of patients who will be driven to the illicit market.
Those issues will in all likelihood be decided based on the technical legal merits, and we've known all along we faced tough prospects in the courts, especially since the Raich ruling. Still, the city's arguments, whether legally persuasive or not, are accurate. Obama administration officials did mislead the city -- the country -- about their intentions with regard to state medical marijuana laws. Whether they did so deliberately or through mere inconsistency is irrelevant. When Sen. Patrick Leahy (D-VT) asked the attorney general to make the administration's intentions toward marijuana legalization in Washington and Colorado known, the unspoken corollary is how inappropriately they've handled communications about medical marijuana. That's bad enough when a business or city gets harmed. But some of the victims are in prison or dead.
Haag must see that she is on the losing side of history by now. The question is how much carnage she and her cohorts will inflict by holding out. It would be better to have some reason from the feds sooner rather than later -- some reason and some decency.
P.S. Watch why Scott Morgan considers Harborside The Best Place in the World to Buy Marijuana:
Oregon's Measure 80 is an interesting case. While it was reported as losing 45-55, the pro total actually crept up to 46.3% when all the returns were finally counted. This was with virtually no funding, though perhaps benefiting from discussion of the issue in neighboring Washington, and with language that was far more radical in most respects than either Washington's or Colorado's measures. With a better-written initiative and the funding that would likely attract, and with legalization happening next door as Dickinson pointed out, Oregon could be a winner soon -- if not 2014 and the expected more conservative turnout expected in an off year election, then in 2016.
Also interesting about Oregon, is that I thought the loss there while two other states passed would settle the debate over how to write an initiative -- whether to poll and do focus groups and write one that the research says can pass, or to just go for broke with the language you like -- the two initiatives that did the former won, the one that did the latter lost. But given how well Measure 80 did despite having no funding has some activists including a number of friends of mine saying that we don't have to compromise, or compromise as much, in order to win. If the funds come on board, the money and the real campaign it would enable could make up those 3.7 percentage points, is the reasoning.
I don't believe the money would make up those percentage points. I believe it is more likely that there is a swath of voters who agree with legalization in principle, but are picky about what kind of initiative they would approve, and that initiatives written the right way for them (or for the opinion leaders they take seriously like the former law enforcement and others who supported Washington's I-502) probably swung a significant percentage of voters. I think that Oregon was a special case, because of what was happening at the same time in Washington. And I think that a real campaign in Oregon, would have resulted in a greater amount of discussion about the details of the Oregon initiative (especially if polls suggested it had a chance), increasing the negative impact that certain aspects of it would have had on the aforementioned picky legalization supporters.
But do I know that for sure? No. Oregon's vote should certainly be studied to see what can be learned. So should Colorado's, a system that is pretty different from and a lot more open than Washington's. (At a Cato forum last week, former DEA chief Asa Hutchinson scarcely even mentioned Washington.)
One way or another, it is very likely that a page of history turned last month. Whether as many as seven states will go for legalization in the next few years, or whether Rolling Stone has called all the right ones, only time can tell. But the optimism is certainly appropriate -- time is on the side of marijuana legalization, and I hope for overall drug reform as well.
I have criticized the ease with which some media outlets and even some reformers have accepted the argument made by prohibitionist advocates that courts are certain to overturn the Washington and Colorado marijuana legalization initiatives, or their regulatory systems at least, based on federal supremacy. Most legal scholars in the news have expressed skepticism that a preemption challenge of the laws, as it's called, would succeed, though we can't know for sure until and unless that goes through the courts.
How easy would this to be address? Pretty easy. Bolivia did it this year. That nation has had problems with the treaty ban on coca growing, even for traditional purposes (purposes other than cocaine) as has been done in Bolivia for thousands of years. Attempts to enforce the ban through US-backed eradication programs have fomented civil instability, ultimately leading to a backlash in which a coca grower and indigenous leader, Evo Morales, won the presidency in 2006. (Shameless promotional fact: Morales's vice-president, Álvaro García Linera, spoke at our 2003 conference.)
What happened is that the Morales administration sought a modification to the Single Convention to address the coca issue, but was rebuffed. So late last year, they withdrew from it. Then they announced they would rejoin the treaty on January 1, but with "reservations" stating their non-participation with respect to the coca provision. If one third of member nations object to Bolivia's readmission to the treaty -- by the end of this year, if I'm not mistaken -- they can be prevented from rejoining it, and potentially have problems in some regulatory areas. But other countries would suffer problems from that as well, and it is unlikely.
The US could do that too. Or, and better, we could seek the revision of the treaties to permit legalization. The US would be powerful enough to pull that off, and the rest of the world is mostly concerned with their own interests and are not clamoring for the continuation of marijuana prohibition in the US in any case.
One way or another, it will be pretty easy to handle the drug treaties, once the political will exists here to enact legalization under our own laws. The treaties are a valid issue, but not a difficult one to surmount.
Leahy wants information:
How does the Office of National Drug Control Policy intend to prioritize Federal resources, and what recommendations are you making to the Department of Justice and other agencies in light of the choice by citizens of Colorado and Washington to legalize personal use of small amounts of marijuana? What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?
But it's even bigger than that. Leahy is planning committee hearings on marijuana legalization, to include consideration of legislative options, including "amend[ing] the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law."
I am wondering just how huge this may be. Leahy has good views, but he's also a careful senator who would not care to be at odds with his fellow Democratic committee members or the president. He's also a former prosecutor who dislikes uncertainty or disorder in the law and its implementation.
On the other side of the aisle are Tea Party and other Republicans who may or may not like legalization, mostly don't want to say so if they do, but have campaigned on states' rights. One Colorado Republican, Mike Coffman, has cosponsored a recent bill to allow for state marijuana legalization, despite having voted against the Colorado initiative himself. Word is that at least a couple more Republicans are likely ready to join the group. And recent polls have found that more Americans favor letting states decide about legalization than even support legalization. Micah Cohen at the FiveThirtyEight blog noted the CBS poll found 49% of people who oppose legalization favor letting states decide.
In any case things are further along in Congress than before. The Frank-Paul bill to end federal marijuana prohibition, H.R. 2306, got a few Republicans, but the hard-line House Judiciary chair Lamar Smith (R-TX) would not allow hearings. (Smith was the only member of Congress to oppose crack sentencing reform -- our Judiciary Committee chair!) Incoming chair Bob Goodlatte (R-VA) is said to be reasonable on some issues, but not particularly positive on ours. Still, given what happened last month and what is happening now, it may just look a little too bad for Goodlatte to disallow even hearings, as Republicans struggle to redefine their profile in the wake of a tough election for them.
I haven't read Mikos's analysis yet, but the following excerpt gives a hint at what he might say tomorrow:
Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states' prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been -- and cannot be -- preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.
It's not surprising that a professor friendly to Cato would take a friendly view toward state legalization measures. But Mikos is not the only one. Just today on a phone conference I participated in, a former prosecutor told us that his community sees the courts preempting the state laws as a reach and less than likely, though some DOJ officials want to try for it.
Hutchinson may see things differently, but who knows, maybe we'll be surprised. Perhaps he will have interesting insights to offer on the likely federal response. Hutchinson is a rarity among DEA types in being willing to come out and debate, and he has been known to make reasonable statements about the issue on occasion, though I'm sure we still disagree on most aspects of drug policy.
Should be an interesting talk -- check back at the link for video if you can't come out for it. In the meanwhile, you can read some of my own thoughts on the preemption question here, and a discussion with experts in our newsletter here.
[T]he administration appears to have an open-and-shut case: Federal law trumps state law when the two contradict. What's more, the Supreme Court has spoken on marijuana law: In the 2005 case Gonzales v. Raich contesting medical marijuana in California, the court ruled that the federal government can regulate even tiny quantities of pot – including those grown and sold purely within state borders – because the drug is ultimately connected to interstate commerce. If the courts side with the administration, a judge could issue an immediate injunction blocking Washington and Colorado from regulating or taxing the growing and selling of pot – actions that would be considered trafficking under the Controlled Substances Act.
But a former Bush administration official quoted in the New York Times on Thursday, former DOJ civil division head Gregory Katsas, made the opposite prediction. Katsas was "skeptical" that a preemption lawsuit would succeed, according to the Times. Why? Perhaps because it's not just that the feds can't force states to criminalize drug possession, as Kevin Sabet selectively pointed out to Dickinson. It's also the case that they probably can't directly force the states to criminalize sales either. The Controlled Substances Act in fact leans against federal preemption of state drug policy, as pointed out in a law professors brief on preemption submitted in a California case this year.
Dickinson also pointed out that federal officials had used threats to prosecute state employees involved in implementing regulations for medical marijuana. In my opinion the US Attorney letters were deliberately vague -- scary enough to influence state officials, but in most if not all cases stopping short of explicitly making that threat. A better piece of evidence, I think, is that in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to actually invalidate such a law in court, not even after the Raich ruling. Why not? They must not think they have a slam dunk case. And if preemption is not a slam dunk for medical marijuana, then it's not a slam dunk when it comes to legalization either, although there are additional arguments to throw against full legalization.
The reality is that no one knows how this will turn out if it goes to court. Raich established that federal police agencies can use their powers in medical marijuana states to continue to criminalize marijuana federally, justified by the Interstate Commerce Clause. But that is not the same as having the power to forbid states from granting exceptions to the states' own anti-marijuana sales laws, which in legal terms is what the regulatory frameworks do, and plenty of smart lawyers are skeptical that they can do that. This is not a slam dunk either way.
We noted this morning that marijuana is now legal in Washington State. (!) But what happens next?
As WA press noted, federal authorities had no plans to intervene at this time -- the expected celebrations proceeded unmolested, at least we've not heard of any problems.
As one of our advisors, Eric Sterling, commented in our newsletter after the election, officials at the Dept. of Justice were taken by surprise, perhaps by the passage of the initiatives and certainly by the strong margins of victory. A New York Times story today by Jack Healy noted that the Obama administration has yet to announce any policy on the matter, but have simply noted that federal law remains unchanged. According to the article, officials asked about it referred to a statement released yesterday by the US Attorney in Seattle, Jenny Durkan:
"In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance," [Durkan] said. "Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law."
Which tells us nothing we didn't know. But Durkan did say that the administration is reviewing the initiatives. And according to Healy's article, "several people familiar with the [administration's] deliberations" say they are considering legal action. There are a few legal issues at stake:
- Can the government "preempt" the states' regulatory systems -- that is, not just raid marijuana stores if they choose to, but prevent the state from exempting any growers or distributors or sellers under state law?
- If they can, will that endanger the rest of the laws? The argument for that, Healy posits, would be that voters mightn't have passed the laws without the regulations.
- Do the state laws run afoul of our government's treaty obligations, particularly the 1961 Single Convention on Drugs?
Many scholars are skeptical that a preemption challenge would succeed. Gregory Katsas, a DOJ official in the George W. Bush administration, pointed out to the Times that there is nothing in the laws that prevent the federal government from bringing marijuana cases in the states. The argument there is that the laws are not in "positive conflict" with the federal Controlled Substances Act (CSA), despite their clear "tension" with it. Several legal scholars submitted a brief in a California case on this subject earlier this year taking that viewpoint.
My takeaway from the brief was that the feds might not be able to preempt even the regulatory portions of the laws, and would probably have to amend the CSA to have a chance. The very same law that would be invoked in a court case, is the same one at work in prohibition of medical marijuana. And in 16 years of state medical marijuana laws, including now 10 dispensary states, no federal prosecutor has sought to invalidate any of these laws in court. That suggests they are not confident of what their prospects would be.
Regarding the treaties, my guess would be that the same reasons federal law might not preempt state marijuana legalization applies to the treaties too -- marijuana is still federally illegal. The treaties do seem to frown even legalized possession. But they explicitly allow for alternatives to criminalizing possession, such as health and education-based approaches -- which we don't have as much of as we should, but which we do have. So it's not clear that the treaties will be a problem either.
All that said, we do not know what will happen, and Congress's power to regulate commerce is broad -- the pressure on the feds to do something is greater, and the set of arguments they can bring to court are more numerous.
I am excited but also anxious about what may happen next. Are Amendment 64 and I-502 going to federal court? What will the courts say? Will the feds try to scare Washington and Colorado officials from implementing regulations -- will the states' governors stand up to them if they do, or will they seek delays as happened in a number of medical marijuana states? Will the federal raids being made against medical marijuana facilities be expanded when legalized marijuana stories eventually open? Such a strategy would be more effective in Washington, less so in Colorado where there will be more stores and where home growing is legal. But they can probably take down anyone in Colorado as they choose. Will there be threats to withhold highway funds over the laws, or law enforcement funds?
Hopefully the Obama administration will finally choose to be on the right side of history on this issue. But we'll ses. What happens next? For now we wait -- I am nervous but also excited.
Tomorrow, December 6, 2012, possession of marijuana for persons 21 and over becomes legal in Washington State. There's a long way to go before marijuana prohibition finally lands in history's dustbin, much less overall drug prohibition. And of course we are anxiously waiting to see what the feds will do. On the other hand we've lived with marijuana prohibition for more than 75 years, compared with alcohol prohibition's 13 years, or drug prohibition's near century, so the week is certainly an historic one.
A big anniversary, and a big day. Stay tuned.
Over at Flex Your Rights, we've been getting a lot of questions lately about how to protect your rights when you're living in a college dorm. I put together this video response that I hope everyone will find helpful (I think a lot of the tips will be useful to anyone who's living around lots of other people, so this isn't just for students). Enjoy, and please share with any students you know.
I forgot to mention this in the video, but one of the emails we received was from a student who had his room searched twice recently because of a "text-a-tip" program designed to help classmates narc on each other for drug crimes. He was innocent, but someone kept sending the authorities after him anyway. And, of course, if any marijuana had been found, our friend probably wouldn't be in school anymore.
If the existence of such a despicable program doesn't remove all doubt about the need for know your rights info on college campuses, nothing will. This kind of crap is exactly why America jails more people than any other nation, while other countries are kicking our ass in math and science. It's not an accident. We're doing this to ourselves on purpose.
Of all the fascinating reactions I've seen to Colorado and Washington's successful marijuana legalization initiatives, this is by far the most extraordinary.
MEXICO CITY — Mexican President Felipe Calderon says the legalization of marijuana for recreational use in two U.S. states limits that country’s “moral authority” to ask other nations to combat or restrict illegal drug trafficking.
Calderon says the legalization of marijuana in Washington and Colorado represents a fundamental change that requires the rethinking of public policy in the entire Western Hemisphere. [Washington Post]
One gets the feeling that Mexican leaders have been desperate for any excuse to begin drawing back from the bloody drug war clusterf$%k we've sucked them into. After all, it's pretty damn ridiculous for Mexicans to die in a failed effort to keep marijuana out of the hands of Americans who actually want marijuana.
Imagine that you're Felipe Calderon, a long-serving and faithful puppet of the American drug war juggernaut, and you look up and see something like this unfolding even as your own people are dying in the streets. To say that we've lost our "moral authority" here is an understatement. We never had any to begin with.
Listen closely and you might make out the whispers of the drug war's dumbfounded defenders as they continue struggling to form a response. The moral authority in American drug policy is being reclaimed bravely by the American people themselves, and the message they've sent is now echoing around the world.
"If someone thinks they are going to walk around campus smoking a joint, it's not going to happen," University of Washington spokesman Norman Arkans says.
It's not that college administrations hate marijuana. The issue is requirements placed on federal funding for research and student aid by the Drug Free Schools and Communities Act:
"We get caught in the vice between the state law and our obligations under the federal government. While it may be legal two blocks off campus, it will be illegal under federal law, so it will be illegal on campus."
Other schools' officials quoted were less certain, saying they'll need time to figure out what the law means now and how the feds will interpret it. I tend to think that there is something to what Arkans says, but only as far as it goes. School administrators, or at least the good ones, see federal requirements as forcing them into taking punitive measures in some cases when they'd see other approaches as more constructive. In practice that means they have more latitude to show lenience or to look the other way before a drug offense gets documented than after. But one of the ways that drug offenses get documented is through arrests. With fewer arrests, there will be less documentation, hence more opportunities to either work with a student who might have a problem, or to let something go.
As the article points out, the initiatives only legalized possession for persons 21 and over, whereas a majority of students on many campuses are under 21. I suspect that the climate will improve for people under 21 who are caught with marijuana, despite continued illegality, but only time will tell. By the way, the Drug-Free Schools and Communities Act is also one of the reasons schools don't like smoke-outs.
The Medical Marijuana Business Daily reports that several publicly traded companies serving the medical cannabis industry have soared in the stock market since the election:
Investors pumped money into the sector after Colorado and Washington legalized cannabis for recreational use and Massachusetts passed medical marijuana legislation. In some cases, MMJ-related stocks hit new highs and saw record trading activity, with millions of shares changing hands vs. tens of thousands on a typical day. That’s particularly impressive given that the overall stock market plunged after the election.
Are the buyers who drove stock prices up last week right to be optimistic? Looking at the market to predict the future of drug policy is kind of like using Intrade to predict a presidential election -- only time will tell at this point. But investors are doubtless thinking about a lot of the same things that we are right now: Will the passage of initiatives to legalize marijuana create political pressure on federal officials to ease up on the medical marijuana industry, or on Congress? How will the feds respond to the legalization votes? They must also wonder, if legalization systems do get established in these states, how will that affect the people (many of them our friends) who've risked much to build a medical marijuana industry serving patients there -- will they be winners or losers in that new business environment?
In the long run, I believe the answer to the first question at least is "yes" -- states enacting marijuana legalization will ultimately put pressure on all the branches of government to do something to accommodate it, while giving an advantage to our allies in government in their efforts to change things. More states will certainly do this, given where public opinion seems headed -- the questions for investors in marijuana are how long that will take, and whether their businesses will survive until then. For advocates, the question is how many lives will be needlessly ruined (again, many of them of our friends) by prohibition in the meanwhile.
[I]n 2010, the crimes of possession and consumption accounted for 71 percent of all drug-related investigations initiated by the Public Prosecutor’s Office (Ministerio Público). Of all the rulings (convictions or acquittals) issued in 2010 for drug-related crimes, 18,343 -- 80.7 percent -- were for a single crime, meaning that no other crime was committed apart from the drug offense for which the person was sentenced or absolved.
The report also found disproportionate punishment for persons convicted of nonviolent distribution offenses:
[T]he maximum prison sentence for the crimes of production, commerce, supply, and trafficking of drugs -- all non-violent crimes -- is more than the maximum sentence established for violent crimes, including intentional homicide, rape -- both of minors and adults -- and robbery. The maximum prison sentence established for rape among adults is 11 years shorter than the maximum sentence established for drug offenses, and the maximum sentence established for robbery is 15 years, 10 years less than for drug crimes.
We see this kind of reversal of justice in the United States, of course, through the much-criticized sentencing guidelines and mandatory minimums. Mexico's public prosecutor's office does not seem more able or inclined to target its resources toward violent crime or the highest levels of the drug trade then the US Dept. of Justice does.
Of course in Mexico they have a full-blown crisis of drug trade violence -- prompting many Mexicans to call for legalization or at least a serious examination of it. So far the incoming president has vowed to continue to pursue the same strategies that led to the crisis, and it sounds like he has the full support of the prosecutor's office. But eventually things have to give.
A Washington Post story by Sari Horwitz reports that federal officials don't know what they are going to do about marijuana legalization in Colorado and Washington:
"I really don't know what we're going to do," said one high-ranking law enforcement official involved in the decision who was not authorized to speak publicly.
"It was a battleground state," said [another] administration official, who spoke on the condition of anonymity because he was not authorized to talk publicly
Horwitz's otherwise good article repeated the same fallacy we have seen crop up in other news reports of late, the idea that states can't do this because of federal law, a fallacy that I predicted here and have already noted here. The article states:
The most likely outcome will be that the Justice Department will prevent the laws from going into effect by announcing that federal law preempts the state initiatives, which would make marijuana legal for recreational use, law enforcement sources said.
Perhaps it's just a typo, and I don't know what the sources told Mr. Horwitz, but no matter what the legal and practical outcome of all of this, it is not the case that DOJ can preempt a state's law by making an announcement about. They can ask a court to preempt the laws, and then the court will decide. Significant legal precedent indicates that Congress cannot force states to criminalize conduct they don't want to criminalize, anymore more than states can force Congress to lift such criminalization -- as I've pointed out, in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to do so. Maybe they'll try now, and if so we'll see what the Supreme Court's inconsistent conservatives say and what the liberals say. But they've had plenty of incentive to go that route already, and for some reason haven't.
Not that the feds can't make a fight of things. As the medical marijuana battles show, they have ways to interfere. They can send vaguely threatening letters, implying without directly stating that state employees would be violating federal law by implementing regulations for marijuana, as US Attorneys in most medical marijuana jurisdictions have done. That could scare the governors, who could seek delays implementing the initiatives, which in turn would have to be addressed in court. The IRS could move against the new businesses, auditing and penalizing them under a tax rule that disallows most expense deductions for illegal enterprises. (The law bizarrely allows dispensaries to deduct the cost of marijuana itself, but not other things like payroll or rent.) They can make it hard for marijuana businesses to maintain relationships with banks. And of course they can raid any marijuana store that they choose to.
But none of that is the same as preempting the laws themselves. And none of it would stop people from possession marijuana whenever they want, legally under the states' laws, or in Colorado from growing it. This needs to be repeated as often as possible: Colorado and Washington's marijuana laws are different from federal marijuana law, but that doesn't mean they conflict with it; and not every conflict is legally impermissible. If federal law just preempted state law in that way, 18 states would not have medical marijuana today.
Congressional staffers told the Independent that Colorado Reps Diana DeGette (CD1), Ed Perlmutter (CD7) and Jared Polis (CD2) are working independently and together on bills that would exempt states where pot has been legalized from the Controlled Substances Act.
DeGette Chief of Staff Lisa Cohen told the Independent that proposals the representatives are working on would alter section 903 of the act to allow states to establish their own marijuana laws free from federal preemption.
Winning has consequences. Of the three of them, it was only Polis from Colorado who had previously signed on to H.R. 2306, the Ending Federal Marijuana Prohibition Act. DeGette and Perlmutter did cosponsor legislation to protect medical marijuana dispensaries' ability to do banking. But now all three of them seem not only willing to take on prohibition, but eager.
H.R. 2306 has garnered 21 cosponsors, including 19 Democrats and two Republicans. Some of those are leaving Congress at the end of their current terms -- Ron Paul (R-TX) is retiring, as is the legislation's sponsor, Barney Frank (D-MA). Pete Stark (D-CA) and Dennis Kucinich (D-OH) lost their seats after redistricting forced them to run against other Democrats.
Paul and Frank in particular were particularly active champions of drug reform, but Stark and Kucinich were among our champions too. Polis is certainly eager to take the lead on these issues; another H.R. 2306, Earl Blumenauer (D-OR) posted on his Facebook page last Thursday, "We must be rational about its medical use, then move to legalize it." Hopefully we'll find enough support in the new Congress to move reform forward
A final note on H.R. 2306: One of the things we heard from activists was that they were too discouraged to work on passing the bill, because it wasn't going anywhere -- hardline Judiciary chair Lamar Smith (R-TX) wasn't going to allow hearings, and passing it after hearings didn't seem likely. I hope that people will reconsider that. Think about how long people worked before it became possible to pass these initiatives on the ballot. It just takes awhile to move legislation in Congress too, but that doesn't mean that progress isn't being made.
In fact it's the opposite -- when members of Congress see their constituents working for something, lobby them, building coalitions and so forth, and when they see other members of Congress supporting them, over time more of them become willing to sign on to bills or to expend political capital moving them forward. Eventually a bill moves, or more likely, its language or something like it gets included in a larger piece of legislation, when it's introduced or through an amendment. In the meanwhile, we have to do as much as we can to build that support and awareness on the part of members of Congress, so they'll think of us and our issues when there's a new chairman or some other window of opportunity is opened.
One small way to do that is to use our web site to email your representatives in Congress asking them to support H.R. 2306. Some of them will not be returning to Congress in January, when a new version of the bill will have to be offered, but many of them will be. Of course sending an email is just the bare beginning -- we will be organizing a second teleconference in the near future to talk about more.
- You can legally carry up to an ounce of marijuana, as of December 6th, but not in public view.
- Rules for marijuana stores will be developed over the next year, and won't be done until December 1st, which means no legal sales until then.
- Growing is still illegal.
- Marijuana smoking in public is ticketable in some places -- treated like cigarette smoking.
- Driving under the influence of marijuana is illegal.
- Police like the clarity of legalization more than the grey area of Seattle's previous "lowest priority" policy for marijuana enforcement.
- Police are reviewing their hiring policies with regard to prospective officers' past marijuana use.
- Police will not assist the federal government in any investigations into marijuana offenses that are legal under state law.
- Police will not return marijuana they seized from you prior to the passage of the initiative.
The article was written with humor, and includes embedded video from The Lord of The Rings movie of Gandalf and Bilbo blowing smoke rings.
I almost forgot the main highlight from the bulletin: "You can certainly use marijuana in the privacy of your own home."