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The Future of Pot: Is Legalization Around the Corner In Colorado and Washington?

While Americans are becoming increasingly aware of prohibition's consequences, the legalization movement still has many obstacles to overcome.
 
 
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In a sharp challenge to federal drug laws, Washington and probably Colorado will vote this year to let state-licensed farmers and stores grow and sell marijuana. Legalization initiatives will probably make the ballot in both states.

In Washington, the State Elections Division announced January 27 that Initiative 502 had qualified for the November ballot, with supporters handing in well over the 241,153 signatures needed. The state legislature could enact it into law before then, but campaign manager Alison Holcomb says that is unlikely, as the taxes included would require a two-thirds majority.

In Colorado, Initiative 30 supporters handed in 159,000 signatures in early January, well over the 86,105 needed. The Secretary of State’s office said January 19 that it had found enough invalid signatures to warrant a line-by-line review. It will announce whether the measure made the ballot by February 3. If the initiative falls short, supporters will have 15 days to gather more signatures.

Both measures would legalize marijuana under regulations similar to those for alcohol, but somewhat stricter. They would set the smoking age at 21, allowing adults to possess up to one ounce and grow up to six plants. State-licensed farmers would grow it commercially, and state-licensed stores would sell it. However, public consumption would be prohibited, so there wouldn’t be any Amsterdam-style cannabis coffeeshops in Denver or Seattle.

“Adults would no longer be punished for using a substance less harmful than alcohol,” says Mason Tvert, co-chair of the Colorado coalition, the Campaign to Regulate Marijuana Like Alcohol.

The two measures would also impose an excise tax on wholesaled cannabis, of 25 percent in Washington and up to 15 percent in Colorado, where the first $40 million in revenue would go to school construction. Colorado’s Initiative 30 would let farmers grow industrial hemp, and local jurisdictions could decide if they wanted to be “dry.” Washington’s Initiative 502 would set up a three-tier system of growers, processors and retailers, with growers and processors not allowed to sell it. More controversially, it would define having a minimum concentration of THC in the blood—5 nanograms per milliliter—as proof of driving while under the influence.

Colorado voters rejected a legalization initiative in 2006, but a December poll showed voters favoring I-30 by 49-40 percent. In Washington, organizers haven’t done a poll on Initiative 502, says Alison Holcomb, but 57 percent of people polled in November supported legalizing possession of an ounce with a 25 percent tax.

“We need to continue demonstrating that ending marijuana prohibition is a mainstream issue,” says Tvert. 

New Approach, the group behind I-502, definitely has mainstream credentials. Its sponsors include Seattle City Attorney Pete Holmes, who announced upon taking office in 2009 that he would not prosecute marijuana-possession cases; state Rep. Mary Lou Dickerson, D-Seattle; former federal prosecutor John McKay, one of the eight U.S. attorneys fired by the Bush administration for political reasons in 2007; and travel writer Rick Steves, a member of the National Organization for the Reform of Marijuana Laws’ advisory board. Campaign manager Holcomb is former drug policy director of the state’s American Civil Liberties Union chapter.

However, the initiative has drawn some opposition from the Washington cannabis community, mainly because of objections to the 5-nanogram DUI standard. That provision “trades one kind of arrest for a worse kind of arrest,” says Jeffrey Steinborn, a longtime Seattle pot-defense lawyer and NORML board member. He argues that dangers of driving while buzzed are exaggerated, so the I-502 campaign is “pandering to the fear of stoned drivers.” Instead, he contends, police should use “objective evidence of impairment,” such as weaving or speeding.

“If we don’t address this issue, it’s going to haunt us,” responds Holcomb. She says that based on the science that’s currently available, there is an increased correlation between that level of THC and increased risk of accidents. The federal National Highway Transportation Safety Administration uses the 5 ng/ml standard as well.

Resolving this issue is crucial for winning nonusers’ support for legalization. Some studies have suggested that driving under the influence of marijuana is less dangerous than driving drunk. A 2000 British driving-simulator experiment found that the stoned subjects drove better than people who had been drinking, because they knew their reaction time was impaired and they compensated by driving slower.

The problem, however, is that there is no standard for marijuana that indicates impairment as clearly as blood-alcohol concentration does. In occasional users, blood THC falls below 5 ng/ml about three hours after smoking, and there is some data that indicates an increased accident risk above that level, says Paul Armentano of NORML, but it’s “hardly definitive.” There is also limited data that chronic users can have more THC in their blood for longer periods without being impaired, he adds.

Colorado’s initiative has been less controversial among the state’s pot-smokers, although a Boulder group, Legalize2012, has denounced it as “fake legalization,” because of the one-ounce limit and because it would tax marijuana and regulate it like alcohol instead of like “grapes or tomatoes.” However, Legalize 2012 has not yet begun collecting signatures for its own initiative.

Such tensions between grassroots ganja activists and pot political professionals have been around for years, says Dominic Holden, a longtime legalization activist who is now news editor of The Stranger alternative weekly in Seattle. “The people who’ve been on the ground for a long time tend to resent it” when the “big boys” take over, he explains, but the professionals are the only ones who’ve won statewide campaigns. That pattern, he says, has reoccurred consistently since California’s 1996 Proposition 215 initiative, when consultants affiliated with the Drug Policy Alliance who were invited in to help with the campaign superseded locals like Dennis Peron, the San Francisco activist who spearheaded the city’s pioneering 1991 medical-marijuana initiative.  

Most of the cannabis-community opposition to I-502, Holden says, comes from medical-dispensary owners who fear losing money, and medical users who are protecting “their temporary comfort” at the expense of the freedom of Washington’s adult marijuana users. The choice, he adds, is that “we can have 10,000 arrests a year until 2016, or we can face the risk that a few people who have THC in their systems will be pulled over and convicted.”

Federal Obstacles

These initiatives would eliminate state marijuana prosecutions, but federal law will be a titanic obstacle to practical legalization, to the cannabis versions of vineyards, breweries and liquor stores operating freely and openly. Under the Controlled Substances Act of 1970, any sale or cultivation of marijuana, regardless of whether it’s for getting high, medical use, industrial hemp, floral arrangements, or unsterilized birdseed, is a felony. For medical marijuana, both federal law and policy make no distinction between a meticulously administered nonprofit program that provides cannabis to prevent cancer patients from vomiting after chemotherapy, and a pot-selling dispensary that advertises “420 specials” and “free joint to new patients!” They are both felonies.

The Obama administration has attacked medical-marijuana providers more indirectly than the Bush administration did. It hasn’t abandoned SWAT-team raids, but has more often relied on threatening letters: Federal prosecutors notify dispensaries’ landlords that if they do not cease and desist from renting to drug dealers, their property will be subject to forfeiture and they may face federal drug charges. That tactic has worked in shutting down dispensaries in California and Washington. In January, Colorado’s U.S. attorney, John Walsh, sent out 23 such letters, demanding that the dispensaries close by the end of February.

Last April, the two U.S. attorneys in Washington informed Gov. Christine Gregoire that if the state licensed dispensaries, its employees would not be immune from federal prosecution. In October, a California appeals court said that the city of Long Beach was violating federal law by issuing permits for dispensaries. On January 24, San Francisco officials announced that they would no longer issue new permits.

Anyone who thinks the federal government wouldn’t go after state-licensed marijuana growers and retailers is “delusional,” says Jeffrey Steinborn. “Your registration and your tax return will be Exhibit I in a federal prosecution.”

The odds of this changing in the near future look extremely slim. Last June, Rep. Barney Frank (D-MA) introduced H.R. 2306, the Ending Federal Marijuana Prohibition Act of 2011. It would remove marijuana from the Controlled Substances Act, including moving it out of Schedule I, which declares that it has no valid medical use, and limit federal prosecution to cases of transporting it into states where it remained illegal. Frank was joined by Ron Paul (R-TX), John Conyers (D-MI), Barbara Lee (D-CA), Jared Polis (D-CO), and Steve Cohen (D-TN). The bill now has 19 cosponsors, mostly Californians, urban Democrats, and libertarian Republicans, but it has been sitting in the House Subcommittee on Crime, Terrorism, and Homeland Security since last August.

Although support for legalization in national polls has neared 50 percent, and Proposition 19, California’s legalization initiative, won 46 percent of the vote in 2010, there remains a huge gap between public sentiment and legislative support. The 20 cosponsors of H.R. 2036 represent a dramatic increase in the number of House members who have openly endorsed legalization—but they are still outnumbered by congressmembers who have openly questioned whether President Obama was really born in Hawaii.

The main presidential candidates are distinguished mainly by their gross hypocrisy. Barack Obama smoked herb regularly as a college student, and wrote a there-but-for-the-grace-of-God-go-I lament in his autobiography about a friend who got busted, but his administration’s oft-stated stance is that “legalization is not in the president’s vocabulary.”

Among the Republican hopefuls, Newt Gingrich once declared that his getting high in the early ‘70s was “a sign we were alive and in graduate school,” but as House speaker in 1995, he sponsored a bill that would have allowed the death penalty for people smuggling more than 100 joints’ worth. Mitt Romney has repeatedly said he is opposed to medical marijuana, but has ducked specific questions about it, such as whether he would send an emaciated muscular-dystrophy patient to jail for using it.

The one major presidential candidate who supports legalization is Ron Paul, the Republican libertarian. That, coupled with his opposition to the Iraq war and criticisms of the Wall Street bailout, has likely been the main source of his support among younger voters and cannabis-world people. However, voting for him because he wants to legalize pot also means voting for his overall ideology, in which minimum-wage laws violate the sanctity of the free market and the Civil Rights Act of 1964 interfered with restaurant owners’ right to choose their customers by race if they wanted to. 

“Bubble-Up Strategy”

Against these odds, Colorado and Washington activists say the only way to change federal law is to have the states challenge it. “It’s about opening up the debate,” says Alison Holcomb. Because marijuana, like gay marriage, is a “third-rail issue,” change has to start with the states.

Brian Vicente, the other codirector of the Initiative 30 campaign in Colorado, calls this a “bubble-up strategy.” Marijuana and gay marriage are two issues where the public is leading, he says. “We need to send a message that we’re ready for a more common-sense approach.” Also, he adds, the movement is more professional and sophisticated than it was in the past. 

“As Americans realize that their fears are based on myths, they will support a more rational policy,” says Mason Tvert. Colorado’s experience with medical marijuana has demonstrated that cannabis can be regulated in a responsible fashion, he contends. That gives the federal government a choice when states legalize it: “They can allow the state to regulate and control it, or they can ensure that it remains in the underground market.”

Jeffrey Steinborn strongly doubts that the federal government will ever legalize marijuana, given “the lock” that the pharmaceutical and law-enforcement lobbies have on Congress. The best solution, he believes, would be for the states simply to repeal any criminal penalties for marijuana—and “then we can talk about regulation.”

There is a historical precedent, he notes: In 1932, Washington voters overwhelmingly approved Initiative 61, repealing the state’s alcohol-prohibition law. A little more than a year later, the 21st Amendment repealed national Prohibition.

Holcomb sees “an acceleration toward change.” Most Americans have a negative view of marijuana, she says, but they are becoming increasingly aware of the consequences of the laws against it: the 47,000 Mexicans killed in the last five years as drug gangs battle for control of the smuggling market, the huge numbers of people sent to prison, and the racial disparities in drug arrests. Seattle is only 8% black, she notes, but more than half the people arrested for marijuana there in the first half of 2010 were

If there’s no confrontation, nothing changes, opines Dominic Holden. “It demands a fight,” he says. “We need to challenge it by passing laws that fly in the face of prohibition. We need to win the argument in the court of public opinion. As long as we have the fight, we’re changing people’s minds.”

People need to believe that legalization is possible, he says, “and once you put a proposal on a state ballot, it doesn’t seem so quixotic any more.”

Steven Wishnia is a New York-based journalist and musician. The author of Exit 25 Utopia and The Cannabis Companion, he has won two New York City Independent Press Association awards for his coverage of housing issues.