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Citing Marijuana Legalization Vote, Latin Leaders Call for Policy Review

Five conservative Latin American heads of state said in a joint declaration Monday that the votes by two US states to legalize marijuana would have important ramifications on regional efforts to suppress the drug trade. While the declaration did not say the leaders were considering relaxing their efforts against marijuana, it suggested that the votes in Colorado and Washington could make their enforcement of laws against marijuana more difficult.

Outgoing Mexican President Felipe Calderon was joined by Honduran President Porfirio Lobo, Costa Rican President Laura Chinchilla and Prime Minister Dean Barrow of Belize in Mexico City for a meeting before issuing the declaration. Guatemalan President Oscar Perez Molina, who also signed the declaration, was not present at the meeting because he was overseeing recovery efforts from last Wednesday's deadly earthquake there.

Mexico and Central America have in recent years seen unprecedented levels of prohibition-related violence, with more than 60,000 killed in Mexico during Calderon's tenure and with rising levels of violence in Central America as Mexican enforcement efforts push the so-called cartels into the isthmus.

In addition to several paragraphs of boilerplate language reiterating their country's continuing commitment to fighting criminal drug trafficking organizations, the declaration also "underlines that it is necessary to deeply analyze the social, political, and public health implications for our nations of the processes in action at the state and local level of some countries of our continent to permit the production, consumption, and legal distribution of marijuana, which constitutes a paradigmatic change in respect to the current international regime on the part of such entities."

The declaration asks the secretary general of the Organization of American States, who was mandated at the Summit of the Americas in April with completing a hemispheric study of drugs, "to incorporate an analysis of the impact of the new policies referred to [above] on our countries." It also calls on the UN General Assembly to hold a special session on drug policy no later than 2015.

The Mexico City declaration comes just days after a key advisor to incoming Mexican President Enrique Pena Nieto questioned how Mexico will enforce marijuana prohibition there when it is legal in some US states. The Obama administration has yet to formally respond to the decision by voters in Colorado and Washington to legalize marijuana.

Last Tuesday's legalization votes are reverberating not just across the country, but across the hemisphere.

Mexico City
Mexico

Washington DAs Begin Dropping Marijuana Possession Cases

Some Washington state prosecutors have begun dismissing pending marijuana possession cases in the wake of last week's vote to legalize marijuana in the state. King County (Seattle) prosecutors have dismissed 175 cases involving adults 21 or over, while Pierce County (Tacoma) prosecutors have dropped about 50 more.On Tuesday, Clark County (Vancouver) prosecutors announced they, too, were dropping possession cases.

King County Prosecuting Attorney Dan Satterberg is no longer prosecuting small-time marijuana possession cases. (kingcounty.gov)
I-502 makes the possession of up to an ounce legal under state law and directs the state to come up with a system of state-owned marijuana stores. The possession provision doesn't come into effect until December 6, but some prosecutors have decided to apply the new law retroactively.

"Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month," King County Prosecuting Attorney Dan Satterberg said in a statement last Friday.

Satterberg has jurisdiction over unincorporated King County, as well as cases on state highways and at the University of Washington. In Seattle itself, which has had a lowest law enforcement priority police in place for nearly a decade, City Attorney Pete Holmes has had a policy of refusing to prosecute simple possession cases.

Satterberg had 40 cases in which criminal charges had already been filed. Those charges will be dismissed. Another 135 cases awaiting charging decisions will be sent back to the arresting police agency.

Pierce County Prosecutor Mark Lindquist told the Seattle Times he was dropping "about four dozen" cases where pot possession was the only offense. "The people have spoken through this initiative," said Lindquist. "And as a practical matter, I don't think you could sell a simple marijuana case to a jury after this initiative passed."

In an interview with the Times, Satterberg said his office would continue to prosecute marijuana possession above one ounce, but would have "a buffer for those whose scales are less than accurate." His office will also charge felony possession for people holding more than 40 grams, but Satterberg said his office routinely allows such defendants to plead down to a misdemeanor.

More than 241,000 people have been arrested for small-time pot possession in Washington in the past 25 years, including more than 67,000 in the last five years. That will end as of December 6, but at least some Washington prosecutors aren't waiting.

WA
United States

Feds Unsure What to Do About State Legalization

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.
 

Dept. of Justice headquarters, Washington, DC (gsa.gov)
Attorney General Eric Holder had ignored a letter signed by all the past DEA chiefs last September urging him to speak out against the ballot initiatives. That may have been a political decision to avoid losing Democratic support in Colorado, the article suggests:

"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.

Seattle Police Legal Marijuana Guide Features Gandalf and Bilbo

Embedded video from "The Lord of the Rings," appearing on Seattle Police Blotter legal marijuana guide page.
The SPD Blotter yesterday published "Marijwhatnow? A Guide to Legal Marijuana Use in Seattle." It includes a guide for citizens as well as a heads-up on what police and the mayor are working on. Some highlights from the document, paraphrased:

  • 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."

Hundreds of Marijuana Cases Were Dismissed in Washington This Week

Two county prosecutors in Washington State have dismissed 220 pending marijuana possession cases, in response to the passage of I-502, according to the Seattle Times.

"Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month," [King County Prosecutor Dan] Satterberg said in a statement.
 

Satterberg dismissed 175 possession cases involving persons age 21 or over possession one ounce or less. In neighboring Pierce County, Mark Lindquist said he was dismissing about four dozen marijuana cases, but was continuing to prosecute them if they were secondary to more serious offenses such as DUI.

"The people have spoken through this initiative," said Lindquist. "And as a practical matter, I don't think you could sell a simple marijuana case to a jury after this initiative passed."
 

As I noted Wednesday, Tuesday really happened.

These 220 people are lucky. Drug convictions including marijuana can trigger a range of collateral consequences, including loss of college aid, difficulty qualifying for public housing and other penalties, in Washington including the ability to trigger a firearm. According to marijuana-arrests.com:

Employers, landlords, credit agencies, licensing boards for nurses and beauticians, schools, and banks now routinely search these databases for background checks on applicants. A simple arrest for marijuana possession can show up on criminal databases as "a drug arrest" without specifying the substance, the charge, or even if the person was convicted. Employers and landlords, faced with an abundance of applicants, often eliminate those with criminal arrest records, especially for drugs. Nurses, security guards, and others licensed by the state can lose their licenses and their jobs from just one misdemeanor marijuana arrest.

What Legal Marijuana Will Look Like in Washington State

Jacob Sullum has a detailed discussion in Reason's "Hit & Run" blog of "What Legal Pot in Washington Will Look Like." Jacob compares Washington's I-502 with Colorado's Amendment 64 and notes that while both initiatives legalize marijuana for adults 21 or over, and authorize state-licensed marijuana stories, in other (but not all) ways Washington's law is more restrictive than Colorado's.

The main differences are that Washington doesn't allow home growing; there is a Driving Under the Influence provision that is tied to a specific THC level (the provision that prompted some objections within reform circles); stores are more regulated; and the tax rate is higher.

Conversely, Washington's law does not allow local jurisdictions to ban marijuana stories within their borders, an option that cities in Colorado will have. If you've followed the Medical Marijuana Update series that Phil has been writing in our newsletter, you'll probably agree that that is a big benefit.

Unlike Colorado's law, which can only be changed by constitutional amendment, I-502 can be amended by the legislature at any time -- with a 2/3 vote for the next two years, or by majority vote after that. Our friend Roger Goodman, election this week for a fourth term in Washington's House of Representatives, told the Seattle Weekly last month that he and Sen. Jeanne Kohl-Welles hope to address the DUI issue, and improve the state's medical marijuana system, perhaps through requiring that impairment be determined by independent experts rather than the per se DUI standard or other means.

Hopefully other changes or expansions to the law will become possible over time too, as voters and legislatures become accustomed to marijuana being legal and are satisfied that things are working. Unlike with medical marijuana, non-patients (over 21) obtaining marijuana will not be an issue anymore in Washington or Colorado.

Mexico Reacts to US Marijuana Legalization Votes

Mexican officials are reacting with a mixture of bemusement and frustration after residents in two US states, Colorado and Washington, voted to legalize marijuana. Some are calling for the legalization of Mexican marijuana exports, while others, including key advisors to incoming President Enrique Pena Nieto, are saying that Mexico will have to "rethink" its drug policies in the wake of the vote.

Incoming Mexican President Pena Nieto will have marijuana on his mind when he meets President Obama later this month (wikimedia)
Mexico has seen as many as 60,000 people killed in the last six years as the government of outgoing President Felipe Calderon declared war on the so-called cartels, which traffic large quantities of Mexican marijuana to the US, as well as methamphetamine, heroin, and cocaine. The Mexican government has grown increasingly frustrated with what it sees as US laxity when it comes to fighting the drug war north of the border, especially with the broad acceptance of medical marijuana in states where it is legal.

And now, two states have moved to okay outright legalization.

In an interview the day after the elections reported by the Associated Press, key Pena Nieto advisor Luis Videgaray, who is heading the new president's transition team, said that his government remains opposed to drug legalization, but that the votes in Colorado and Washington complicated its efforts to prosecute the drug war.

"Obviously we can't handle a product that is illegal in Mexico, trying to stop its transfer to the United States, when in the United States, at least in part of the United States, it now has a different status," Videgaray said. "I believe this obliges us to think the relationship in regards to security. This is an unforeseen element. These important modifications change somewhat the rules of the game in the relationship with the United States. I think that we have to carry out a review of our joint policies in regards to drug trafficking and security in general."

Videgraray's remarks come just three weeks before Pena Nieto is scheduled to meet with President Obama in Washington.

Conversely, Cesar Duarte, governor of the violence-plagued state of Chihuahua, said Wednesday that the legalization votes north of the border offered a "very clear" hint on what Mexico should do: legalize marijuana exports.

"It seems to me that we should move to authorize exports," Duarte told Reuters in an interview. "We would therefore propose organizing production for export, and with it no longer being illegal, we would have control over a business which today is run by criminals, and which finances criminals."

If the US doesn't want to prosecute the drug war -- as evidenced by the votes in Colorado and Washington -- asked Duarte, why should Mexico?

"We can't go on suffering for the effects of America's vices," he said.

I-502 Fact Sheets from WA State and ACLU of WA

The Washington State Liquor Control Board and the ACLU of Washington have both issued facts sheets on the implementation of I-502. The state's Office of Financial Management projects prices will average about $12 per gram, based on current dispensary prices (via Sirens and Gavels).

Though the law goes into effect on December 6, it is December of next year when the licensing system for sellers is scheduled for. (If you think that's a long time, don't ask me how long we've waited for Washington, DC to get its medical marijuana law moving.) An evaluation is to be published in September 2015. (Which is as long as DC is taking to just get started.)

502 does not provide for home growing. But patients maintain their home growing rights under the state's medical marijuana law.

And the Fast Talking Has Started...

I posited yesterday that federal fast talking about the Colorado and Washington initiatives would start soon. It turns out that federal fast talking hasn't even needed feds to get started, a "Network Media Fail" analysis by Peter Guither demonstrates:

Some of the network media have been trying to cover the legalization of marijuana in Colorado and Washington and clearly are in catch-up mode, not really knowing how to talk about it. And they're completely thrown by the fact that the DOJ, for the most part, isn't coming right out and commenting. So they're all forced to turn to… Kevin Sabet.
 

Kevin is a former Office of National Drug Control Policy staffer -- Phil faced off with him in The Fix on Tuesday. He had a respectable level position at the agency, from what I understand, but he was not the drug czar or near it, and he doesn't work at ONDCP now. Pete questions why media would think he knows what's going on behind the scenes or why we should think he does.

I'll just comment on two things from the ABC article by Christina Ng that Pete highlighted:

"When you have the governors of both states [opposing it] as well as the president and Congress, who has already determined that marijuana is illegal, this is not going to be a walk in the park for marijuana enthusiasts," Sabet said. [...]
 

That is an inaccurate characterization by Kevin of the positions of the governors. Colorado Gov. John Hickenlooper opposed the initiative, and according to the Denver Post is speaking with federal officials to assess their intentions -- Eric Holder, head of all DOJ, not ONDCP. But Hickenlooper also told the Post that "[y]ou can't argue with the will of the voters" and they plan to move forward with it. Washington governor-elect Jay Inslee has also said that he'll respect the will of the voters.

The second is a paragraph that was not presented as a quote, so I don't know precisely what Kevin told Ms. Ng, but here it is:

In 2005, the Supreme Court by an 8-0 margin struck down a California law that legalized medical marijuana in the state. The Court said Congress had the power to criminalize marijuana under the Commerce Clause.
 

Raich v. Gonzales was actually 6-3, but more importantly, the court did not strike down California's medical marijuana law! What the court did was decline to limit the reach of federal law. There's a difference.

As I discussed yesterday, state and federal law can be different, but that doesn't mean they're in conflict. And not every type of conflict is legally impermissible. California's medical marijuana law is very much in effect -- the trouble there is to providers, not directly to patients, and it's from federal raids and other actions, and local zoning restrictions. Tellingly, no federal prosecutor in 16 years of state medical marijuana laws has ever tried to undo one of them in court.

Perhaps they'll try now with one of the legalization initiatives, but their prospects for success on that route are unclear. What seems most unlikely is that states would be forced to reverse not only their licensing provisions, but their elimination of penalties for users and some sellers; much less that federal agents, more limited in number than state and local police, would conduct the massive numbers of possession busts (or in Colorado home growing busts) needed to keep prohibition going at that level. That's why the medical marijuana laws work.

In the meanwhile, police and prosecutors in Washington have more or less confirmed the walk in the park beginning December 6th.

Washington Police and Prosecutors Winding Down Marijuana Possession Cases

Dominic Holden reports for The Stranger:

Prosecutors won't charge marijuana possession cases anymore, starting December 6th:

Ian Goodhew, deputy chief of staff for the King County Prosecuting Attorney, says his office is trying to figure out how if they will charge the marijuana possession cases are pending. "We haven't figured out how we will handle all of those cases," he says. But assuming the possession portion of the law is not federally challenged -- and no credible lawyer thinks the possession portion can be -- Goodhew says that in future cases, "we cannot charge someone under state statute."
 

...and police won't make possession arrests:

Sergeant Sean Whitcomb, a spokesman for the Seattle Police Department, says this: "For us, the law has changed, and people can expect no enforcement for possession."
 

Or to put it another way: Yesterday Really Happened.

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