Marijuana Legalization

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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.

Video: Daily Show Ribs Media Over Marijuana Jokes

John Stewart just took the media to task for all the marijuana jokes. Marijuana prohibition is a serious matter. Of course the show was funny nonetheless.  :)

Update: Video is available now, in two parts:

 

The Daily Show with Jon StewartMon - Thurs 11p / 10c
Post-Democalyptic World - Potted Up
www.thedailyshow.com
Daily Show Full EpisodesPolitical Humor & Satire BlogThe Daily Show on Facebook

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.

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.

More Drug-Related Election Results, Good and Bad [FEATURE]

We've covered the two-out-three victories for the statewide marijuana legalization initiatives and we've covered the medical marijuana initiative victory in Massachusetts, but there was more going on as well. Here's the rundown on other drug policy-related issues that were on the ballot Tuesday. The results were definitely a mixed bag.

California Three-Strikes Sentencing Reform Passes

California's Proposition 36 won easily, pulling 68.6% of the vote, according to semi-official results. (Final official results are due by December 7.) It will reform the state's three strikes law, which allows a life sentence for a third felony conviction and has resulted in people getting life sentences for drug possession, theft of a pizza, and similar trivial offenses.

The measure will allow life sentences only if the new felony conviction is "serious or violent," authorize re-sentencing for lifers if their third conviction is not "serious or violent" and if a judge determines their release would not pose an unreasonable risk to public safety, allow life sentences if the third conviction was for "certain non-serious, non-violent sex or drug offenses or involved firearm possession," and keep the life sentence for felons whose previous convictions were for rape, murder, or child molestation. Now, some 3,000 three strikes lifers could seek reductions.

Medical Marijuana -- Two Statewide Initiatives Lose

While Massachusetts voters made the Bay State the 18th medical marijuana state Tuesday, things didn't go as well in Arkansas and Montana.

Passage of Arkansas' Issue 5, the Arkansas Medical Marijuana Act, would have made it the first state in the south to embrace medical marijuana, but while it came achingly close, it was not to be. According to official figures with 64 out of 75 counties reporting Wednesday morning, Issue 5 was losing, 48.5% to 51.5%.

In Montana, medical marijuana advocates hoped to overturn the conservative legislature's gutting of the state's medical marijuana law with Initiative Referendum 124, which required voters to vote "yes" to endorse the legislature's changes. But according to official figures with about eight out of 10 precincts reporting Wednesday morning, the initiative won -- and medical marijuana lost -- by a margin of 56.5% to 43.5%.

Detroit Legalizes! And Other Michigan Local Initiatives Win

Michigan local initiatives ran the full spectrum of marijuana reform issues, with limited legalization on the ballot in Detroit and Flint, decriminalization on the ballot in Grand Rapids, making marijuana the lowest law enforcement priority on the ballot in Ypsilanti, and medical marijuana dispensary regulation on the ballot in Kalamazoo. They all won.

Detroit's Measure M, which legalizes the possession of up to an ounce on private property, won with 65% of the vote with 100% of precincts reporting, while the Flint measure was winning with 60% of the vote. Decriminalization in Grand Rapids also pulled 60%, while Kalamazoo embraced up to three dispensaries by a ratio of two-to-one, and Ypsilanti's lowest priority initiative won with a whopping 74%.

Massachusetts Local Questions Continue Perfect Record

For more than a decade, Massachusetts activists have used the tactic of the non-binding public policy question in legislative districts to demonstrate support for marijuana law reform. The questions have ranged from medical marijuana to decriminalization to legalization, and none have ever lost. This year, in districts representing one-fifth of the electorate, all the questions were about legalization, and again, they all won.

"Shall the State Senator/Representative from this district be instructed to vote in favor of legislation that would allow the state to regulate and tax marijuana in the same manner as alcohol?" -- won with 69% in the 2nd Middlesex Senate District, 71% in the Middlesex and Suffolk Senate District, and 72% in the 2nd Berkshire State Representative District.

"Shall the state Senator/Representative from this district be instructed to vote in favor of a resolution calling upon Congress to repeal the federal prohibition of marijuana so that states may regulate it as they choose?" -- won with 54% in the 22nd Middlesex State Representative District, 65% in the Essex and Middlesex Senate District, and 66% in 8th Essex State Representative District.

California -- San Diego County Towns Block Dispensary Regulation

[Editor's Note: We originally got these San Diego results backward, reporting that the initiatives had won.They didn't.]

According to semi-official San Diego county results, grass roots initiatives to permit and regulate medical marijuana dispensaries were voted down. Opponents won with 56% of the vote in Del Mar, 60% in Imperial Beach and Lemon Grove, 62% in, and 63% in Solana Beach.

Colorado -- Larimer County Dispensary Battles

Last year, Fort Collins residents voted to ban medical marijuana dispensaries, prompting advocates to put the issue back on the ballot this year. According to official Larimer County results, dispensaries will be back, winning 55% to 45%.

It was a different story in the town of Berthoud, where official results had the dispensary ordinance losing, 43% to 57%.

Of course, given the victory of Amendment 64, this could all be moot now.

Colorado, Washington Legalize Marijuana! [FEATURE]

Colorado voters made history Tuesday night, passing a constitutional amendment to legalize, tax, and regulate marijuana and becoming the first state in the US to break with marijuana prohibition. Hours later, voters in Washington state followed suit, passing a legalization initiative there, but a similar effort in Oregon came up short.

Brian Vicente, Rob Kampia, and Steve Fox listen to Mason Tvert in Denver as Amendment 64 passes.
Even though marijuana legalization didn't achieve a trifecta, two states have now decisively rejected marijuana prohibition, sending an electrifying message to the rest of the country and the world. Tuesday's election also saw a medical marijuana initiative pass in Massachusetts, a sentencing reform initiative pass in California, and a limited legalization initiative pass in Detroit. Medical marijuana initiatives failed in Arkansas and Montana. [Editor's Note: Look for Chronicle news briefs soon on the election results we have yet to publish stories on.]

"The victories in Colorado and Washington are of historic significance not just for Americans but for all countries debating the future of marijuana prohibition in their own countries," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "This is now a mainstream issue, with citizens more or less divided on the issue but increasingly inclined to favor responsible regulation of marijuana over costly and ineffective prohibitionist policies."

According to the Colorado secretary of state's office, Amendment 64 was leading comfortably with 55% of the vote, compared to 45% voting "no." But an early lead was enough for Amendment 64 supporters and foes alike to call the victory. Rising excitement at Casselman's, the downtown Denver bar where campaign supporters gathered, turned to gleeful pandemonium as Colorado media began calling the result little more than two hours after the polls closed.

"Colorado voters have decided to take a more sensible approach to how we deal with marijuana in this state," said Mason Tvert, director of the Campaign to Regulate Marijuana Like Alcohol, which had brought together state marijuana reform groups such as SAFER and Sensible Colorado with national reform organizations such as the Marijuana Policy Project, Drug Policy Action, and Law Enforcement Against Prohibition in a well-organized and well-funded winning campaign.

"Today, the people of Colorado have rejected the failed policy of marijuana prohibition," said Sensible Colorado's Brian Vicente. "Thanks to their votes, we will now reap the benefits of regulation. We will create new jobs, generation million of dollars in tax revenue, and allow law enforcement to focus on serious crimes. It would certainly be a travesty if the Obama administration used its power to impose marijuana prohibition upon a state whose people have declared, through the democratic process, that they want it to end."

"I'm so happy we not only did this, we did it right," said MPP's Steve Fox, who had worked closely with Tvert, Vicente, and Yes on 64 spokesperson Betty Aldworth to bring the effort to fruition. "Now, it is legal in the state constitution to possess and grow marijuana. It can't be repealed on a whim; it is permanent. Thirty days from now, any veteran -- any person -- in this state can use marijuana."

"Colorado is the starting point, the tipping point, but it's not the end point," vowed MPP executive director Rob Kampia, who promised to take the effort to more states in the future.

Gov. John Hickenlooper (D), a staunch opponent of Amendment 64, conceded its victory as well Tuesday night. "The voters have spoken and we have to respect their will," he said in a statement. "This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug, so don't break out the Cheetos or goldfish too quickly."

According to the Washington secretary of state's office , as of 9:28pm Pacific time Tuesday, Initiative 502 was holding a comfortable lead of 55% to 45%. Sponsored by New Approach Washington, the initiative had excited opposition among segments of the pot-smoker and medical marijuana communities, but created a carefully crafted and financially well-backed campaign featuring a series of establishment endorsers.

Betty Aldsworth thanks the voters of Colorado.
I-502 legalizes the possession of up to an ounce of marijuana by adults 21 and over, but does not allow for personal cultivation, except by or for medical marijuana patients. It will license marijuana cultivation and retail and wholesale sales, with restrictions on advertising. Regulation will be the remit of the state liquor control board, which will have to come up with rules by December 2013. The measure creates a 25% excise tax on marijuana sales, with 40% of revenues dedicated to the general fund and 60% dedicated to substance abuse prevention, research, and healthcare. It also creates a per se driving under the influence standard of 5 nanograms of THC per milliliter of blood.

By contrast, Colorado's Amendment 64 allows adults 21 and over to possess up to an ounce of marijuana or six marijuana plants, three of which can be mature. It will create a system of state-licensed cultivation, manufacturing, and testing facilities and state-licensed retail stores. Local governments would have the option of regulating or prohibiting such facilities. The amendment also requires the state legislature to enact legislation governing industrial hemp cultivation, processing, and sale, and to create an excise tax on wholesale marijuana sales. The first $40 million of that annual revenue will be dedicated to building public schools.

"Marijuana policy reform remains an issue where the people lead and the politicians follow, but Washington state shows that many politicians are beginning to catch up," said Nadelmann, noting that the Obama administration had failed to denounce the initiatives. "That bodes well, both states' prospects of implementing their new laws without undue federal interference."

In Oregon, Measure 80, the Oregon Cannabis Tax Act (OCTA), didn't fare so well. As of 11:30pm Pacific time, it was losing 45% to 55%, with 69% of the vote counted.

It came late to the ballot compared to the efforts in Colorado and Washington, could not demonstrate majority support in polls, and, as a result, did not manage to attract substantial funding from outside donors, sealing its fate.

But despite the loss in Oregon, when it comes to passing groundbreaking marijuana legalization initiatives in the United States, two out of three ain't bad.

Colorado Is Ahead So Far...

As of 8:12pm mountain time, the Colorado secretary of state site shows Amendment 64 leading 671,027 to 610,202, over 52% in favor. The site says that Colorado has 3,647.082 registered voters, with 31.41% of them having had votes counted so far. Assuming Colorado doesn't get 100% voter turnout, does this mean half the vote counted so far? Very promising.

Update (8:24pm mountain time): MPP says exit polling is at 57%.

The Latest Polling on the Marijuana Legalization Initiatives

Today is the big day! Marijuana legalization is on the ballot in Washington, Oregon and Colorado. Medical marijuana is getting votes in Massachusetts, Arkansas and Montana. And California is voting on a much-needed reform to the states draconian "three strikes you're out" law -- not solely drug policy reform, but includes drug offenses within it. There are also some measures on local ballots. See Phil's report last week for an overview.

Phil and I will be posting late into the night tonight on all of the initiatives as well as candidate races of interest, here on the Speakeasy and in Drug War Chronicle. Phil is a few hours out from Denver, and so his reporting will be done live from where the Colorado action is. Check all of it out here at StoptheDrugWar.org.

In the meanwhile, what does the latest polling say? In Washington, polls conducted last month through early this month show I-502 leading by margins ranging from 4 to 19 points, with support ranging from 47 to 56 percent in favor and 36 to 44 percent opposed.

Polls in Colorado taken during the same timeframe show Amendment 64 in the lead with margins ranging from 10 points on the upper end down to just one end on the lower. Support ranges from 46 to 53 percent and opposition ranging from 40 to 45 percent.

According to the Denver Post (via Jacob Sullum), half of people who have already voted in say they voted yes on Amendment 64, but more than half of those planning to vote today plan to vote yes:

"Passage would be driven largely by the support of younger voters, who sometimes are less reliable, turnout-wise, than are older voters," the polling firm SurveyUSA, which conducted the survey for The Post, wrote in a memo explaining the results. "Older voters oppose Amendment 64, and if the amendment should go down to defeat, it will be because younger Coloradans talked the talk but did not walk the voting-booth walk."
 

No pressure or anything, young voters, says SSDP's Aaron Houston.

Only three polls have tested Oregon's Measure 80, one in late September and two in October. Support and opposition have both risen (not surprisingly, as undecided voters make up their minds), and the last one has the measure losing 49-42. Oregon reformers should still turn out to the polls, though -- margin matters, even in a defeat -- plus a poll is only a prediction -- the only poll that counts is the big one happening taken today.

See you online tonight!

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