Medical Marijuana

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.

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.

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.

Every drug reformer got to go to Denver except Dave Borden :) (SSDP leaders celebrate victory -- photo by Troy Dayton)

"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.

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%.

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.