Colorado Amendment 64

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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.

Boulder DA Stops Marijuana Possession Prosecutions

The district attorney in Colorado's Boulder County announced Wednesday he will dismiss all pending small-time marijuana and paraphernalia possession cases, saying that given overwhelming support for Amendment 64 in Boulder County he would be hard pressed to find a jury to convict.

Boulder County DA Stan Garnett (bouldercounty.da.gov)
"You've seen an end to mere possession cases in Boulder County under my office," DA Stan Garnett told the University of Colorado student newspaper the Daily Camera. "It was an ethical decision," Garnett said. "The standard for beginning or continuing criminal prosecution is whether a prosecutor has reasonable belief they can get a unanimous conviction by a jury. Given Amendment 64 passed by a more than 2-to-1 margin (in Boulder County), we concluded that it would be inappropriate for us to continue to prosecute simple possession of marijuana less than an ounce and paraphernalia for those over 21."

While Amendment 64 will not go into effect most likely until sometime in January, Garnett said the high level of support for the measure in the county convinced him to begin dropping cases.

"We were already having trouble sitting a jury anyway," Garnett said. "That overwhelming vote total, that's where we get our juries from."

Boulder police Chief Mark Beckner told the Daily Camera that his department would now stop issuing tickets or making arrests for mere marijuana possession of less than an ounce and paraphernalia.

"We will not be issuing any summonses for the offenses cited by the Boulder DA," Beckner said. "We had already told our officers it was a waste of time to issue summonses for those offenses anyway, given the passage of the amendment. We are in a wait and see mode on how the state will regulate sales and possibly use in public places."

Garnett's stance came the same day Amendment 64 proponents called on other prosecutors, particularly Denver DA Mitch Morrisey, to follow his lead.

"A strong majority of Coloradans made it clear that they do not believe adults should be made criminals for possessing small amounts of marijuana," said Mason Tvert, a proponent of Amendment 64. "Colorado prosecutors can follow the will of the voters by dropping these cases today and announcing they are no longer taking on new ones. We applaud District Attorney Garnett for respecting the will of the voters, and we hope his colleagues across the state will follow his lead," Tvert said. "We do not see why District Attorney Morrissey or any other prosecutor would want to continue seeking criminal penalties for conduct that will be legal in the next month or so."

Prosecutors in some Washington counties, where marijuana legalization also passed, have also dropped pending pot possession prosecutions.

Boulder, CO
United States

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. 

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

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.

Colorado Dems to Seek Federal Exemption from Marijuana Prohibition

All three Democratic members of Colorado's Congressional delegation are planning legislation for next year that would exempt states enacting legalization systems for marijuana from the Controlled Substances Act. According to the Colorado Independent:

Congressional staffers told the Independent that Colorado Reps Diana DeGette (CD1), Ed Perlmutter (CD7) and Jared Polis (CD2) are working independently and together on bills that would exempt states where pot has been legalized from the Controlled Substances Act.
 

DeGette Chief of Staff Lisa Cohen told the Independent that proposals the representatives are working on would alter section 903 of the act to allow states to establish their own marijuana laws free from federal preemption.

Winning has consequences. Of the three of them, it was only Polis from Colorado who had previously signed on to H.R. 2306, the Ending Federal Marijuana Prohibition Act. DeGette and Perlmutter did cosponsor legislation to protect medical marijuana dispensaries' ability to do banking. But now all three of them seem not only willing to take on prohibition, but eager.

H.R. 2306 has garnered 21 cosponsors, including 19 Democrats and two Republicans. Some of those are leaving Congress at the end of their current terms -- Ron Paul (R-TX) is retiring, as is the legislation's sponsor, Barney Frank (D-MA). Pete Stark (D-CA) and Dennis Kucinich (D-OH) lost their seats after redistricting forced them to run against other Democrats.

Paul and Frank in particular were particularly active champions of drug reform, but Stark and Kucinich were among our champions too. Polis is certainly eager to take the lead on these issues; another H.R. 2306, Earl Blumenauer (D-OR) posted on his Facebook page last Thursday, "We must be rational about its medical use, then move to legalize it." Hopefully we'll find enough support in the new Congress to move reform forward

A final note on H.R. 2306: One of the things we heard from activists was that they were too discouraged to work on passing the bill, because it wasn't going anywhere -- hardline Judiciary chair Lamar Smith (R-TX) wasn't going to allow hearings, and passing it after hearings didn't seem likely. I hope that people will reconsider that. Think about how long people worked before it became possible to pass these initiatives on the ballot. It just takes awhile to move legislation in Congress too, but that doesn't mean that progress isn't being made.

In fact it's the opposite -- when members of Congress see their constituents working for something, lobby them, building coalitions and so forth, and when they see other members of Congress supporting them, over time more of them become willing to sign on to bills or to expend political capital moving them forward. Eventually a bill moves, or more likely, its language or something like it gets included in a larger piece of legislation, when it's introduced or through an amendment. In the meanwhile, we have to do as much as we can to build that support and awareness on the part of members of Congress, so they'll think of us and our issues when there's a new chairman or some other window of opportunity is opened.

One small way to do that is to use our web site to email your representatives in Congress asking them to support H.R. 2306. Some of them will not be returning to Congress in January, when a new version of the bill will have to be offered, but many of them will be. Of course sending an email is just the bare beginning -- we will be organizing a second teleconference in the near future to talk about more.

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.

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.

Expect Federal Fast Talking About CO and WA to Start Soon

Every drug reformer got to go to Denver except Dave Borden :) (SSDP leaders celebrate victory -- photo by Troy Dayton)
Not a day has passed since legalization initiatives passed in two states, and ominous words have already been spoken. According to CBS, "[d]rug laws remain unchanged following passage of marijuana ballot initiatives":

"The department's enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiatives and have no additional comment at this time."
 

I haven't seen the statement on the DOJ web site yet. Perhaps it's only been sent to media outlets. Colorado's governor, meanwhile, hopes to talk to US Attorney General Eric Holder as soon as this week, according to the Denver Post.

Gov. Hickenlooper and CO Atty. General John Suthers both have said they intend to respect the will of the voters. But if the feds tell them that Colorado can't do this, that would be a convenient answer for these officials who probably don't want the trouble, especially when a little time has gone by and the spotlight on them over the amendment is a little less intense. So far DOJ's statements as well as Hickenlooper's sound accurate to me, to the extent that I've studied them. But it's important to be prepared to communicate a factual understanding of how the law works, in the event that federal or even state officials attempt to obfuscate.

As a CNN legal analyst this morning commented (email or post if you know his name), federal law toward marijuana, and state law in Colorado and Washington (as well as all medical marijuana states) are different. But that doesn't necessarily mean that they "conflict." Specifically, it doesn't mean that they have a "positive conflict." If the state itself were to sell or traffic in marijuana, that would be a "positive conflict" with federal law. But Colorado and Washington have no obligation to enforce federal drug laws. The legal question as far as federal preemption is whether they can issue licenses to marijuana sellers that protect the sellers under state law.

My understanding of the law as well as that of colleagues I've spoken with is that this is not a positive conflict, as it does nothing to prevent the feds from making a drug bust if they choose to do so. It may well get tested in court. But it's worth noting that in 16 years of state medical marijuana laws, no federal prosecutor in the country has ever tried to preempt state medical marijuana laws -- they've busted dispensaries, but they have not tested the laws themselves in court. The same law is at stake with these legalization initiatives, with the difference being the scope of what they legalize and regulate.

My guess is that DOJ will face greater pressure to try to lawfully preempt one of these laws (as opposed to squashing them by force) than they have felt with state medical marijuana laws, even if they are doubtful of their chances for success. But time will tell. For us, the thing to remember -- and to point out whenever it comes up -- is that federal law and state law are "different" -- they conflict politically, but that doesn't mean they conflict legally. The feds don't have a lot of incentive to acknowledge this, and as the statement shows, they can can be factual but still leave out that important point.

Several Initiatives' Margins Have Improved

When I first noted last night that Colorado's Amendment 64, marijuana legalization, was ahead, partial results had it leading with a little over 52% of the vote, with exit polling reportedly at 57%. When the Denver Post called the measure as passing, it was over 53%. The official Colorado election results now have Amendment 64 at 54.82% voting yes -- almost as high as Washington I-502's 55.44%.

The Arkansas medical marijuana initiative went down to defeat, unfortunately, but only 49-51 -- up from the 48-52 split we first noted, and pretty darn close -- not bad for a southern state, though frustrating for the same reasons.

When I first noted that Montana's medical marijuana initiative wasn't doing well, I linked to the state election results page but didn't write out the percentage split, 58-42. Maybe I didn't want to. It was still at that level later in the night. But as of right now (with still a bit of counting to go), I-124 was up to 43.45. (As we noted before, our side was hoping for a "no" vote on the initiative -- the "no" referring to a bill passed by the legislature that weakened the initiative passed by voters.)

California's three-strikes reform measure is up to 68.6%, having been closer to 68% when I looked last night.

Every little bit counts, and some of thes increases mean more than a little bit. Of the three defeats (Oregon, Arkansas and Montana), Montana's worries me the most, as it is a tough situation right now for the state's medical marijuana community, with both the state and the feds. But maybe our national momentum for marijuana law reform will make more things possible soon, maybe even in Montana. Phil wrote a feature story on the legalization initiatives last night -- live from Amendment 64 campaign headquarters -- and will be coming out with another on the rest of the election story later today.

Drug War Issues

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