Washington Initiative 502

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What Happens Next?

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.

Seattle skyline
Of course that's not what the feds would do. As we've noted here, most law enforcement is state and county and local -- federal arrests for marijuana possession are a rarity, and mostly occur in places like national parks that are specifically federally controlled. Thinkers within and without our movement have been speculating what the federal response might be and what options they will legally have at their disposal once the courts weigh in.

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.

Marijuana is Now Legal in Washington State! [FEATURE]

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.

King 5 news report (nwcn.com)
The date comes just one day after the 80th anniversary of the end of alcohol Prohibition and could mark the beginning of the end for marijuana prohibition in the United States. Colorado voters also legalized marijuana, and it will be legal to possess an ounce there -- and grow up to six plants -- sometime between now and January 5, the last day the governor has to ratify the November election results.

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.

WA
United States

New Poll Has Record High for Marijuana Legalization

There is a third poll in the past few days suggesting that Americans' attitudes toward marijuana legalization have reached the tipping point, if not toppled over it. A survey conducted over the weekend by Public Policy Polling (PPP) finds a record high 58% of respondents think pot should be legal, while only 39% think it should not.

That finding comes on the heels of a CBS News poll showing the highest support for legalization since it starting asking the question (although still not quite over the top at 47%) and an Angus-Reid poll that had support for legalization at 54%.

It also comes just days before Americans are confronted with the reality of legal marijuana in one of the two states that legalized it last month. On Thursday, the provision of Washington's I-502 initiative allowing the adult possession of up to an ounce of marijuana goes into effect. The possession (and cultivation) provisions of Colorado's Amendment 64 will go into effect days later, by January 5 at the latest.

In the PPP poll, 33% of respondents felt "strongly" that marijuana should be legal, while another 25% agreed, but didn't feel strongly about it. Taking the two together, that's 58% in support of freeing the weed.

Poll respondents also wanted the federal government to allow Colorado and Washington to chart their own paths on marijuana (47%), with only one-third (33%) calling for the federal government to intervene. And a slight plurality (45%) said marijuana was safer than alcohol, while 42% said it was not safer.

There were few surprises in the cross-tabs. Support for legalization was stronger among men (62%) than among women (54%) and stronger among Democrats (68%) and independents (59%) than among Republicans (42%). Somewhat surprisingly, Hispanics reported stronger support for legalization (61%) than blacks (56%) or whites (55%). There was majority support for legalization among voters under 45, but not over. Still, even among the older folks, there was 47% support among 45-to-64-year-olds and 48% for the above-65 set.

Law Enforcement Call on DOJ to Respect State Marijuana Laws [FEATURE]

Tuesday morning, former Baltimore narcotics officer Neill Franklin delivered a letter signed by 73 current and former police officers, judges, prosecutors, and federal agents to Attorney General Eric Holder at the Justice Department in downtown Washington , DC, urging him not to ignore the wishes of voters in Colorado and Washington state who voted to legalize, tax, and regulate marijuana.

LEAP leader Neill Franklin delivers letters to the Justice Department. (leap.cc)
Franklin is the executive director of Law Enforcement Against Prohibition (LEAP), which supported Amendment 64 in Colorado and Initiative 502 in Washington. Both measures won with 55% of the vote in this month's elections.

"As fellow law enforcement and criminal justice professionals we respectfully call upon you to respect and abide by the democratically enacted laws to regulate marijuana in Colorado and Washington," the letter said. "This is not a challenge to you, but an invitation -- an invitation to help return our profession to the principles that made us enter law enforcement in the first place."

The Obama administration's response to the legalization votes could help define its place in the history books, LEAP warned.

"One day the decision you are about to make about whether or not to respect the people's will may well come to be the one for which you are known. The war on marijuana has contributed to tens of thousands of deaths both here and south of the border, it has empowered and expanded criminal networks and it has destroyed the mutual feeling of respect once enjoyed between citizens and police. It has not, however, reduced the supply or the demand of the drug and has only served to further alienate -- through arrest and imprisonment -- those who consume it," the letter said.

"At every crucial moment in history, there comes a time when those who derive their power from the public trust forge a new path by disavowing their expected function in the name of the greater good. This is your moment. As fellow officers who have seen the destruction the war on marijuana has wrought on our communities, on our police forces, on our lives, we hope that you will join us in seeking a better world," the letter concluded.

The LEAP letter is only the latest manifestation of efforts by legalization supporters to persuade the federal government to stand back and not interfere with state-level attempts to craft schemes to tax and regulate marijuana commerce. Members of the Colorado congressional delegation have introduced legislation that would give the states freedom to act, while other members of Congress, notably Reps. Barney Frank (D-MA) and Ron Paul (R-TX), have called on the Obama administration to "respect the wishes of voters in Colorado and Washington." Frank and Paul are cosponsors of a pending federal legalization bill.

"We have sponsored legislation at the federal level to remove criminal penalties for the use of marijuana because of our belief in individual freedom," Frank and Paul wrote in a letter to President Obama last week. "We recognize that this has not yet become national policy, but we believe there are many strong reasons for your administration to allow the states of Colorado and Washington to set the policies they believe appropriate in this regard, without the federal government overriding the choices made by the voters of these states."

"We seem to be at a turning point in how our society deals with marijuana," said Franklin Tuesday. "The war on marijuana has funded the expansion of drug cartels, it has destroyed community-police relations and it has fostered teenage use by creating an unregulated market where anyone has easy access. Prohibition has failed. Pretty much everyone knows it, especially those of us who dedicated our lives to enforcing it. The election results show that the people are ready to try something different. The opportunity clearly exists for President Obama and Attorney General Holder to do the right thing and respect the will of the voters."

"During his first term, President Obama really disappointed those of us who hoped he might follow through on his campaign pledges to respect state medical marijuana laws," continued Franklin. "Still, I'm hopeful that in his second term he'll realize the political opportunity that exists to do the right thing. Polls show 80% support for medical marijuana, and in Colorado marijuana legalization got more votes than the president did in this most recent election."

"From a public safety perspective, it's crucial that the Obama administration let Colorado and Washington fully implement the marijuana regulation laws that voters approved on Election Day," added LEAP member Tony Ryan, a retired 36-year Denver Police veteran. "There's nothing the federal government can do to force these states to arrest people for marijuana possession, but if it tries and succeeds in stopping the states from regulating and taxing marijuana sales, cartels and gangs will continue to make money selling marijuana to people on the illegal market. Plus, the states won't be able to take in any new tax revenue to fund schools."

At a Tuesday noon press conference, Franklin and other LEAP members hammered home the point.

"LEAP members have spent the majority of their careers on the front line of the war on drugs and have seen the failure of prohibition," he said. "We call now to end prohibition and embrace a new drug policy based on science, facts, and the medical field."

Former Seattle police chief Norm Stamper told the press conference the war on marijuana was essentially a war on youth, especially minority youth, that sours police-community relations.

"I have come to believe that the war on marijuana has made enemies of many law-abiding Americans, especially many young, black, Latino, and poor Americans," Stamper said. "The law and the mass incarceration behind it have set up a real barrier between police and the community, particularly ethnic communities."

Legalization and regulation will help change that negative dynamic, Stamper said.

"This frees up police to concentrate on violent, predatory crimes, those crimes that really scare people, drive property values down, and diminish the quality of our lives," he said. "We're convinced that by working with the community, including those victimized by these laws, we can build an authentic partnership between police and the community and create true community policing, which demands respect for local law enforcement. By legalizing we have a chance to significantly reduce race and class discrimination. Watch what we do, we will use these states as a laboratory, and the sky will not fall."

"I joined this movement when I was made aware the war on drugs was a war on our community," said Alice Huffman, president of the California NAACP. "Instead of being protected, we were being targeted. We don't feel like the police are protecting us; instead, they have declared war on our young men and women. The amount of resources being used in this war to divide the community is why we have so many incidents between law enforcement and our community. We know that come Friday and Saturday night there will be a ring of law enforcement personnel ringing our community looking to make those low-level drug arrests."

"I believe the regulation and legalization of marijuana is not only long overdue, but will make our communities safer," Huffman continued. "I am very hopeful that our president, who has some experience of his own with marijuana use, which didn't prevent him from becoming a strong leader, will see the light and get rid of these approaches that do nothing but condemn our people to a life of crime because they have felonies and are no longer employable. Instead of treating them like criminals, maybe we can treat them like people with health problems."

The Obama administration has yet to respond substantively to this month's victories for marijuana legalization. Nothing it says or does will stop marijuana from becoming legal to possess (and to grow in Colorado) by next month in Washington and by early January at the latest in Colorado, but it could attempt to block state-level attempts to tax and regulate commercial cultivation and distribution, and it has some months to decide whether to do so. Tuesday's letter and press conference were part of the ongoing effort to influence the administration to, as Franklin put it, "do the right thing."

Washington, DC
United States

Mexico Lawmaker Files Marijuana Legalization Bill

A deputy from Mexico's left-leaning Democratic Revolutionary Party (PRD) last Thursday introduced a bill (not yet posted) to legalize the use, cultivation, and sale of marijuana. The bill's chances of passage are slim, but in the wake of the successful marijuana legalization votes in Colorado and Washington, it will likely become a venue for further criticism of drug prohibition policies on both sides of the border.

Is there a better way to deal with Mexican marijuana? (sedena.gob.mx)
"The prohibitionist paradigm is a complete failure," said Fernando Belaunzaran, who represents a Mexico City district for the PRD. "All this has done is spur more violence, the business continues. The country that has paid the highest cost is Mexico," he told Reuters last Thursday.

Mexico decriminalized the possession of small amounts of drugs, including marijuana, in 2009. But while that move arguably improved the situation of drug users there, it has done nothing to reduce the prohibition-related violence that has cost the country at least 60,000 lives since President Felipe Calderon took office in December 2006.

Mexico has repeatedly demanded that the US do more to curb drug consumption at home, which it charges is driving the drug trade there. The frustration with US policy has only increased since last week's victories for Amendment 64 in Colorado and Initiative 502 in Washington.

Earlier last week, President Calderon joined with Central American heads of state to issue a declaration calling for a review of international drug policies, while a week earlier, a chief advisor to incoming President Enrique Pena Nieto, Luis Videgaray, said the legalization votes meant Mexico must reconsider its approach to the drug trade. Also last week, the governor of Chihuahua, Cesar Duarte, suggested that Mexico should legalize marijuana exports to the US.

While discontent with US drug policies is growing in Mexico, support for marijuana legalization remains weak. The bill's fate is also dim because the PRD and associated leftist parties constitute only the second largest bloc in the Congress, behind Pena Nieto's Institutional Revolutionary Party (PRI). Still, marijuana legalization will be on the congressional agenda in Mexico next year.

Mexico City
Mexico

UN Drug Watchdog "Concerned" with Marijuana Legalization Votes

The president of the International Narcotics Control Board (INCB) last Thursday voiced "grave concern" about the votes legalizing marijuana in the US states of Colorado and Washington, as well as in the Michigan cities of Detroit and Flint. INCB head Raymond Yans also warned that allowing for the legal, non-medical sale of marijuana would violate the 1961 UN Single Convention on Narcotic Drugs.

INCB President Raymond Yans (incb.org)
The INCB is a quasi-judicial body charged with monitoring compliance with the Single Convention and associated treaties. It hectors governments that step outside its interpretation of what the treaties allow, although in practical terms, its ability to enforce its will is mainly rhetorical. INCB criticism of Australia and Canada over the establishment of safe injection sites, for example, has not moved those governments to end the practice, nor has its criticism of Bolivia over allowing coca cultivation resulted in a shift of policy in Bolivia.

Yans was inspired to speak out by the victories of Amendment 64 in Colorado and Initiative 502 in Washington state, both of which envisage legal, state-regulated commercial marijuana cultivation and distribution regimes and both of which will result in the possession of small amounts by adults being legal by early next year. The INCB also alluded to the votes in the Michigan cities of Detroit and Flint to legalize the possession of up to an ounce by adults on private property.

"These developments are in violation of the international drug control treaties, and pose a great threat to public health and the well-being of society far beyond those states," Yans said in a statement. "Legalization of cannabis within these states would send wrong and confusing signals to youth and society in general, giving the false impression that drug abuse might be considered normal and even, most disturbingly, safe. Such a development could result in the expansion of drug abuse, especially among young people, and we must remember that all young people have a right to be protected from drug abuse and drug dependency."

This isn't your father's marijuana, Yans warned.

"Since the adoption of this Convention, very potent new forms of cannabis have appeared on the illicit market, and technological advances have been used to increase the content of the most 'active ingredient,' so to speak, in cannabis, tetrahydrocannabinol (THC). The cannabis on the illicit market today is much more dangerous than that seen in the 60s and 70s," Yans said.

Yans also noted that "for the international drug control system to function effectively, to achieve its aim of ensuring availability of drugs for medical purposes while preventing their abuse, the conventions must be universally adhered to and implemented by all states." He called on the US government "to take the necessary measures to ensure full compliance with the international drug control treaties within the entire territory of the United States, in order to protect the health and well-being of its citizens."

Vienna
Austria

New Polls Show Even Split on Marijuana Legalization

Two polls released last week show support for marijuana legalization hovering just under the 50% mark, with the American public split almost evenly on the issue. Both polls showed that support for marijuana legalization continues to trend upward.

A Rasmussen Reports poll released Monday had 45% in support, 45% opposed, and 10% undecided, while a Washington Post/ABC News poll released Wednesday had 48% in support, 50% opposed, and 2% undecided. The support figure in the latter poll rose one point to 49% when only registered voters were polled.

The polls come a week after two US states passed initiatives legalizing marijuana. Amendment 64 in Colorado and Initiative 502 in Washington both won with 55% of the vote. National polls have consistently show higher support for legalization in the West than in other regions of the country.

The Rasmussen poll showed support for legalization up five points since the firm last asked the question in 2009. It also found that 60% of respondents thought marijuana legalization was best left to the states, with only 27% saying the federal government should decide. And it found that fewer than out of ten (7%) think the US is "winning" the war on drugs, with 83% don't.

Both polls showed plurality support for marijuana legalization among all age groups except seniors. And both polls showed that the gender gap remains intact. Support for legalization was higher among men than women by 12 points in the Rasmussen poll and nine points in the Washington Post/ABC News poll.

The Rasmussen poll surveyed 1,000 adults nationwide on November 9 and 10 and has a margin of error of +/-3%. The Washington Post/ABC News poll surveyed 1,023 adults nationwide between November 7 and 11 and has a margin of error of +/-3.5%.

Marijuana Legalization: What Can/Will the Feds Do? [FEATURE]

In the wake of last week's victories for marijuana legalization in Colorado and Washington, everyone is waiting to see how the federal government will respond. But early indications are that we may be waiting for awhile, and that the federal options are limited.

How will the feds respond to legalization? (justice.gov)
While the legal possession -- and in the case of Colorado, cultivation -- provisions of the respective initiatives will go into effect in a matter of weeks (December 6 in Washington and no later than January 5 in Colorado), officials in both states have about a year to come up with regulations for commercial cultivation, processing, and distribution. That means the federal government also has some time to craft its response, and it sounds like it's going to need it.

So far, the federal response has been muted. The White House has not commented, the Office of National Drug Control Policy has not commented, and the Department of Justice has limited its comments to observing that it will continue to enforce the federal Controlled Substances Act.

"My understanding is that Justice was completely taken aback by this and by the wide margin of passage," said Eric Sterling, former counsel to the House Judiciary Committee and currently the executive director of the Criminal Justice Policy Foundation. "They believed this would be a repeat of 2010, and they are really kind of astonished because they understand that this is a big thing politically and a complicated problem legally. People are writing memos, thinking about the relationship between federal and state law, doctrines of preemption, and what might be permitted under the UN Single Convention on Narcotic Drugs."

What is clear is that marijuana remains illegal under federal law. In theory an army of DEA agents could swoop down on every joint-smoker in Washington or pot-grower in Colorado and haul them off to federal court and thence to federal prison. But that would require either a huge shift in Justice Department resources or a huge increase in federal marijuana enforcement funding, or both, and neither seems likely. More likely is selective, exemplary enforcement aimed at commercial operations, said one former White House anti-drug official.

"There will be a mixture of enforcement and silence, and let's not forget that federal law continues to trump state law," said Robert Weiner, former spokesman for the Office of National Drug Control Policy (ONDCP). "The Justice Department will decide if and at what point they will enforce the law, that's a prosecutorial decision the department will make."

Weiner pointed to the federal response to medical marijuana dispensaries in California and other states as a guide, noting that the feds don't have to arrest everybody in order to put a chill on the industry.

"Not every clinic in California has been raided, but Justice has successfully made the point that federal law trumps," he said. "They will have to decide where to place their resources, but if violations of federal law become blatant and people are using state laws as an excuse to flaunt federal drug laws, then the feds will have no choice but to come in."

Less clear is what else, exactly, the federal government can do. While federal drug laws may "trump" state laws, it is not at all certain that they preempt them. Preemption has a precise legal meaning, signifying that federal law supersedes state law and that the conflicting state law is null and void.

"Opponents of these laws would love nothing more than to be able to preempt them, but there is not a viable legal theory to do that," said Alex Kreit, a constitutional law expert at the Thomas Jefferson School of Law in San Diego who co-authored an amicus brief on preemption in a now mooted California medical marijuana case. "Under the anti-commandeering principle, the federal government can't force a state to make something illegal. It can provide incentives to do so, but it can't outright force a state to criminalize marijuana."

An example of negative incentives used to force states to buckle under to federal demands is the battle over raising the drinking age in the 1980s and 1990s. In that case, Congress withheld federal highway funds from states that failed to raise the drinking age to 21. Now, all of them have complied.

Like Weiner, Kreit pointed to the record in California, where the federal government has gone up against the medical marijuana industry for more than 15 years now. The feds never tried to play the preemption card there, he noted.

"They know they can't force a state to criminalize a given behavior, which is why the federal government has never tried to push a preemption argument on these medical marijuana laws," he argued. "The federal government recognizes that's a losing battle. I would be surprised if they filed suit against Colorado or Washington saying their state laws are preempted. It would be purely a political maneuver, because they would know they would lose in court."

The federal government most certainly can enforce the Controlled Substances Act, Kreit said, but will be unlikely to be able to do so effectively.

"The Supreme Court said in Raich and in the Oakland Cannabis Buyers Club cases that the federal government has all the power in the world to enforce the Controlled Substances Act," Kreit said, "and if they wanted to interfere in that way, they could. They could wait for a retail business or manufacturer to apply for a license, and as soon as they do, they could prosecute them for conspiracy -- they wouldn't even have to wait for them to open -- or they could sue to enjoin them from opening," he explained.

"But you can only stop the dam from bursting for so long," Kreit continued. "In California, they were able to stop the dispensaries at the outset by suing OCBC and other dispensaries, and that was effective in part because there were so few targets, but at a certain point, once you've reached critical mass, the federal government doesn’t have the resources to shut down and prosecute everybody. It's like whack-a-mole. The feds have all the authority they could want to prosecute any dispensary or even any patients, but they haven't been effective in shutting down medical marijuana. They can interfere, but they can't close everybody down."

As with medical marijuana in California, so with legal marijuana in Colorado and Washington, Kreit said.

"My guess is that if the feds decided to prosecute in Colorado and Washington, it would go similarly," he opined. "At first, they could keep people from opening by going after them, either enjoining or prosecuting them, but that strategy only works so long."

"I think the career people in Justice will seek to block Colorado and Washington from carrying out the state regulatory regime of licensing cultivation and sales," Sterling predicted. "A lower court judge could look at Raich and conclude that interstate commerce is implicated and that the issue is thus settled, but the states could be serious about vindicating this, especially because of the potential tax revenue and even more so because of the looming fiscal cliff, where the states are looking cuts in federal spending. The states, as defenders of their power, will be very different from Angel Raich and Diane Monson in making their arguments to the court. I would not venture to guess how the Supreme Court would decide this when you have a well-argued state's 10th Amendment power being brought in a case like this."

"Enjoining state governments is unlikely to succeed," said Kreit. "Again, the federal government has taken as many different avenues as they can in trying to shut down medical marijuana, and yet, they've never argued that state laws are preempted. They know they're almost certain to lose in court. The federal government can't require states to make conduct illegal."

At ground zero, there is hope that the federal government will cooperate, not complicate things.

"We're in a wait and see mode," said Brian Vicente, executive director of Sensible Colorado and co-director of the Amendment 64 campaign. "It's our hope that the federal government will work with Colorado to implement this new regulatory structure with adequate safeguards that make them comfortable the law will be followed."

While that may seem unlikely to most observers, there is a "decent chance" that could happen, Vicente said. "Two mainstream states have overturned marijuana prohibition," he said. "The federal government can read the polls as well as we can. I think they realize public opinion has shifted and it may be time to allow different policies to develop at the state level."

The feds have time to come to a reasonable position, said Ethan Nadelmann, executive director of the Drug Policy Alliance.

"There is no need for a knee-jerk federal response, since the states are not required to create a regulatory scheme quickly," he said. "And while anti-marijuana forces more or less captured the drug czar's office early in Obama's first term, they're at odds with other people in the White House and the Obama administration whose views may be closer to our own. I think the White House will be the key. It's very likely that the fact that Attorney General Holder said nothing about the initiatives this fall, unlike two years ago, was because of the White House. I don't mean the drug czar's office; I mean the people who operate with respect to national politics and public policy."

Sterling disagreed about who is running drug policy in the Obama administration, but agreed that the feds have the chance to do the right thing.

"Given the large indifference to drugs as an issue by the Obama administration, its studious neglect of the issue, its toleration of an insipid director of ONDCP, its uncreative appointment of Bush's DEA administrator, it's clear that nobody of any seniority in the Obama White House is given this any attention. Unless Sasha and Malia come home from school and begin talking about this, it won't be on the presidential agenda, which means it will be driven by career bureaucrats in the DEA and DOJ," he argued.

That's too bad, he suggested, because the issue is an opportunity for bold action.

"They should respond in a vein of realism, which is that this is the future, the future is now," he advised. "They have an opportunity with these two different approaches to work with the states, letting them go forward in some way to see how they work and providing guidance in the establishment of regulations that would let the states do this and ideally minimize the interstate spillover of cultivation and sales."

"As part of that, they should ideally move to rewrite the Controlled Substances Act and begin working in the UN with other countries to revise the Single Convention on Narcotics. Our 100-year-old approach is now being rejected, not simply by the behavior of drug users, but by the voters, many of whom are not drug users," Sterling said. "That would be a way that a wise, forward-thinking, statesman-like public official should respond."

That would indeed be forward-thinking, but is probably more than can be reasonably expected from the Obama White House. Still, the administration has the opportunity to not pick a fight with little political upside, and it has time to decide what to do before the sky falls. Marijuana legalization has already happened in two states, and is an increasingly popular position. The federal government clearly hasn't been in the lead and it's not going to be able to effectively stop it; now, if it's not ready to follow, it can least get out of the way.

Marijuana Legalization Victories Are Already Ripping the Drug War Apart

http://stopthedrugwar.com/files/marijuanaleaf1.jpg

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. 

WA Governor Meets with DOJ on Marijuana Legalization

Gov. Chris Gregoire (D) met Tuesday with Deputy Attorney General James Cole to discuss her state's passage last week of an initiative that legalizes and taxes the sale of marijuana for adults 21 and over. Federal law continues to consider marijuana possession, cultivation, and distribution to be criminal offenses.

Gov. Christine Gregoire (governor.wa.gov)
Gregoire spokesman Cory Curtis told the Associated Press Monday that Gregoire had added the meeting to a previously scheduled trip to Washington, DC, to seek clarity from the Justice Department.

"We want direction from them," said Curtis. "Our goal is to respect the will of the voters, but give us some clarity."

They didn't get it Tuesday. Gregoire told the Associated Press the Justice Department had yet to make a decision on whether it would move to block the laws in Washington and Colorado. They needed to make a decision "sooner rather than later," she said.

"I told them, 'Make no mistake, that absent an injunction of some sort, it's our intent to implement decriminalization,'" Gregoire said. "I don't want to spend a lot of money implementing this if you are going to attempt to block it."

Under I-502, possession of up to an ounce of marijuana is legal beginning December 6, but the state has a year to come up with rules for a state-licensed cultivation, processing, and distribution scheme. Home grows remain illegal, except for medical marijuana patients.

Colorado also passed a legalization measure last week, Amendment 80. The state governor and attorney general spoke by phone with Attorney General Eric Holder last Friday, but got no clear indications of what the Justice Department will do.

Colorado also passed a measure legalizing the drug. Colorado's governor and attorney general spoke by phone Friday with US Attorney General Eric Holder, with no signal whether the US Justice Department would sue to block the marijuana measure.

Possession of up to an ounce and cultivation of up to six plants will be legal in Colorado by January 5 at the latest. That's the last day for the governor to add the amendment to the state constitution. Colorado legislators have about a year to write rules for state-regulated commercial cultivation, processing, and sales.

In both states, state officials worry that the federal government will sue to block them from implementing regulations.

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