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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.org/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.

Washington, DC
United States

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.

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