With Two States Legalizing Marijuana, Are Drug Warriors In Washington Freaking Out?

Voters in Colorado and Washington made history Tuesday night. The states’ marijuana legalization initiatives, I-502 in Washington and Amendment 64 in Colorado, brought what many marijuana advocates are calling the beginning of the end of marijuana prohibition in America. But the power of the people -- and the states -- have one big hurdle to clear before the ban on pot is lifted: The feds. Only this time, the people may have built more than drug warriors' boots can stomp out. 

On Tuesday night, Colorado Governor John Hickenlooper, who opposed Amendment 64, warned constituents of a long road ahead. “The voters have spoken and we have to respect their will. 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.” Unnecessary stoner stereotype jab -- but, moving on....

With more busts for medical pot than the Bush administration, President Barack Obama has proven to be the marijuana warrior he promised not to become in 2008. Now, the Obama administration’s policies regarding medical pot have prompted speculation that full legalization may face tough opposition from the feds. Still, with Colorado’s Amendment 64 garnering 50,000 more votes in the state than Obama did, others say this election sends a message to politicians that attacking marijuana policy reform is politically toxic. But the Controlled Substances Act still holds marijuana in the most restricted class of drugs, Schedule I, defined as dangerous, addicting and medically irrelevant.

“The Drug Enforcement Administration’s enforcement of the Controlled Substances Act remains unchanged," a DEA spokesperson told Reason.com. "In enacting  the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. The Department of Justice is reviewing the ballot initiatives and we have no additional comment at this time."

State prosecutors have led the way in the medical marijuana crackdown, and may continue to bust some -- but not all -- participants in the legal marijuana trade. Colorado US attorney spokesman Jeff Dorschner hinted that, while legalization in Colorado would create a much more expansive marijuana industry in the state, prosecutors’ approach to marijuana would remain the same. "[Legalization] will not change our enforcement approach," he told the Denver Post on Tuesday. So far, that has meant threatening medical marijuana dispensaries near schools with closure, and raiding and prosecuting medical marijuana distributors. But while the Washington Post explained that the Justice Department can file suit to block state laws violating federal statutes, marijuana policy reformers are optimistic that victory will remain on their side.

Deputy director of the National Organization for the Reform of Marijuana Laws (NORML) Paul Armentano says there is simply not that much the feds can do right now. He wrote in the Daily Caller Wednesday, “[I]t is possible that the federal government ... will try to use its limited resources in these states to prosecute marijuana possession offenses under federal law” but lack of “manpower, political will, and public support to engage in such behavior” may instead make legalization “the impetus for the eventual dismantling of federal pot prohibition.”

“States are not mandated to criminalize marijuana or arrest adult marijuana consumers," Armentano explained to AlterNet. He cautioned, however, that the feds could eventually try and challenge separate provisions regarding the state-licensed production and sale of weed. "Theoretically the federal government could try and interfere with these aspects of the law," Armentano said, "But neither of these [states’] regulations go into effect until 2014. So, for now, all the Department of Justice and the DEA can do is sit back, scratch their collective heads, and speculate why cannabis is more popular in Colorado and Washington than either Barack Obama or Mitt Romney.”

Tom Angell, director of media relations for Law Enforcement Against Prohibition (LEAP), notes differences between the federal government’s response to legalization initiatives this year compared to 2008. This September, the feds did not comply with highly publicized requests from former DEA heads to oppose legalization initiatives like they did in 2008. In fact, they had no response at all. That change, he says, may suggest a lesson learned. “It's becoming politically toxic, at least in some places, to stand in the way of marijuana reform,” Angell told AlterNet.

Still, Kevin Sabet,  senior adviser for policy to White House Office of National Drug Control Policy director R. Gil Kerlikowske from 2009-2011, suggested strong-handed opposition to marijuana legalization may be looming. He told NBC News on Sunday, "Once these states actually try to implement these laws, we will see an effort by the feds to shut it down...We can only guess now what exactly that would look like. But the recent U.S. attorney actions against medical marijuana portends an aggressive effort to stop state-sponsored growing and selling at the outset."

One possibility is that, rather than coming down on any and all implementations of marijuana legalization, the feds may come down on the big guys. Deputy Attorney General James Cole said last month in a "60 Minutes" interview that “each case is going to rise and fall on its own unique facts ... Any of that is still in violation of the Controlled Substances Act of the federal law. We're not interested in bothering people who are sick and are using it in the recommendation of a doctor. We are concerned with people who are using it as a pretext to become large-scale drug dealers."

If there’s anything we learned from federal prosecutors’ threats to Harborside Health Center, the nation’s largest medical marijuana dispensary, big is bad in the mind of the feds. Full legalization, however, may just be too big for them to overcome.  

Martin Lee, author of the new book, Smoke Signals: A Social History Of Marijuana—Medical, Recreational, And Scientific, says the size of the operation and will behind it are exactly why local forces could be the biggest threat to legalization. “There are various ways that the federal government could punish these states for straying from the drug war party line, but it may not come to that. Federal law enforcement can't impose it's will that easily, given the limited number of DEA agents on the ground,” Lee told AlterNet. “The biggest obstacle in Washington state might be local law enforcement officers intent on targeting drivers under 21. The way Amendment 64 was written, it may allow, if not encourage, anti-marijuana law enforcement in Washington to harass young drivers and have them tested to determine if THC metabolites are in their body, indicating prior use of marijuana. If the past with respect to medical marijuana in California is a reliable prologue, police, when given an inch, are apt to take a mile.”

Still, Lee has hope that popular opinion may overcome government will. “[I]t's also possible that the federal government may throw in the towel on this one and allow this laboratory experiment in democracy to proceed without interference. One way or another, marijuana is here to stay,” Lee said.

Even anti-legalization Governor Hickenlooper appears to believe freeing the weed is inevitable. "My sense is that it is unlikely the federal government is going to allow states one by one to unilaterally decriminalize marijuana," Hickenlooper told the Denver Post on Wednesday. But he did add that "you can't argue with the will of the voters." Noting the importance of understanding the federal response before moving forward with regulations, which must be established in one legislative session before January 2014, he said, "If the attorney general of the United States is willing to allow that to happen, and I would certainly point out the reasons why that makes sense, certainly then we have a longer discussion. Then we get back to looking at what are the details, how would we tax this, how would we create a regulatory environment that was robust and really held people accountable?"

Regardless of the outcome, the next two years will be paramount for redefining and understanding America’s relationship with pot and the outdated policies that surround it. Recent history makes it clear that no matter the reversals handed down in courts or by the DEA, the marijuana reform train keeps picking up speed.

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