Washington Lawyer

Marijuana: Will It Ever Be Legal?

From Washington Lawyer, June 2013

By Kathryn Alfisi

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November 6, 2012, marked a historic shift for the marijuana reform movement, and indeed the whole nation, when Colorado and Washington passed voter initiatives legalizing marijuana. The idea of marijuana reform suddenly went from being marginalized and treated as joke fodder to becoming a reality.

To some the election results may have come as a surprise, but there were clues along the way. Recent polls have reflected a shift in attitude about marijuana legalization, a shift that could also have been detected by looking at the number of states that have enacted medical marijuana laws, or the municipalities that have decriminalized possession of the drug. In 2010 a marijuana legalization initiative, Proposition 19, was narrowly defeated in California. In the last election Oregon almost became the third state to legalize marijuana.

However, public opinion and voter initiatives aside, the drug is still considered illegal by the federal government, and the future of marijuana reform relies largely on how the government decides to proceed.

“One reason I think this is so interesting is that this is an issue that’s on a tipping point, the razor’s edge, and the whole country can go in very different directions depending on how we react in the course of months, and maybe the next year,” says Jonathan Rauch, guest scholar in governance studies at the Brookings Institution and contributing editor at the National Journal and The Atlantic.

Uncharted Territory
Colorado and Washington entered an uncharted territory when state leaders decided to take what has been an underground system since marijuana was declared illegal 75 years ago and turn it into a regulated and taxed commercial enterprise. No other places in the world have such liberal marijuana laws.

Colorado is seen to have something of an advantage in that the state has been regulating its medical marijuana program for 13 years. On December 10, 2012, despite his opposition to Amendment 64, Colorado Gov. John Hickenlooper formally declared adult marijuana use legal in his state and signed an executive order creating the 24–member Amendment 64 Implementation Task Force. In March the task force forwarded to the governor, the general assembly, and to Attorney General John Suthers its recommendations on a variety of issues surrounding the creation of a marijuana production and distribution system in the state.

One of the major issues the task force took on was the creation of a regulatory business model for recreational marijuana. It ultimately recommended a “vertical integration” model for Colorado’s marijuana business industry where “a seller has to grow what he sells and sell what he grows,” according to Sam Kamin, a member of the task force and professor at the University of Denver Sturm College of Law. Marijuana distribution will be subject to strict inventory control, surveillance requirements, and “seed to sale” tracking.

There was also the question of whether non-Colorado residents would be allowed to use marijuana while visiting the state, leading to headlines about so–called “marijuana tourism.” It’s a term that Kamin thinks does not accurately describe the issue. “I think in Nevada that’s just called tourism. The idea that people can come and enjoy something that’s legal in the state and then leave is an idea that we’ve seen work elsewhere,” he says.

The task force also attempted to reconcile Amendment 64 with federal law to avoid subjecting state and local government, as well as government employees, to federal prosecution. While working in the task force, Kamin tried to strike a balance between delivering what the residents of Colorado voted for and creating rules and regulations that were not so inconsistent with federal law that would cause potential problems.

“We have legalized that which is illegal at the federal level … The best thing to do is minimize clashes that give the federal government the opportunity to come to the conclusion that we’re not doing a good job of regulating this by ourselves,” Kamin says. “The real problem is that we are authorizing something that the federal government prohibits; we have built this industry in Colorado that’s really built on sand.”

“As of right now the entire industry operates under prosecutorial grace. The federal government could close down anyone who is selling marijuana, could sentence anyone found with large amounts marijuana to long terms of imprisonment, and yet it’s a multimillion–dollar industry and could, with the full implementation of a recreational marijuana law, become a billion–dollar industry, and we live with uncertainty on that point and that makes the business side of this complicated,” Kamin adds.

Under the Colorado law any person age 21 or older can purchase up to one ounce of marijuana from state–licensed marijuana dispensaries and, unlike in Washington, Colorado residents are allowed to grow up to six marijuana plants and give away as much as an ounce at a time to others “without remuneration.” The Colorado Department of Revenue is scheduled to issue regulations for marijuana retailers by July, begin processing license applications by October, and start issuing licenses by January 2014.

Washington allows anyone age 21 or older to possess one ounce or less of marijuana for personal use, up to 16 ounces of solid cannabis–infused products, and up to 72 ounces of marijuana–infused liquids. The Washington State Liquor Control Board is responsible for creating a system for regulating and taxing marijuana producers, processors, and retailers. The state’s Liquor Control Board, Department of Agriculture, and Department of Health were given until December 1, 2013, to complete their work, but, according to the Liquor Control Board’s implementation timeline, licenses may be issued by that date.

One person who is happy with the way the Liquor Control Board has been handling its job is Alison Holcomb, drug policy director of ACLU of Washington, which was the primary coordinator for the state’s Initiative 502. “It’s exciting because you can see that there’s a lot of energy across the state and across the nation for helping do this right. I think everyone is coming to the table with a very healthy perspective, we know that this has never been done anywhere in the world, but we’re going to do the best that we can. However, we also know that this is likely going to need to be adjusted over time as we gain experience. But it’s just been energizing to see our state embrace this change,” she says.

Both states may also be embracing the potential revenue boost from recreational marijuana sales. In Washington marijuana will be subjected to a 25 percent tax during cultivation, processing, and sale, while in Colorado marijuana will be subject to a 10 percent statewide sales tax and a 15 percent excise tax.

A 2012 study conducted by the Colorado Center on Law and Policy put the state’s potential revenue from marijuana legalization between $40 million and $60 million annually. Washington’s Liquor Control Board has estimated that full implementation of the marijuana law could generate up to half a billion dollars every year for the state. Whether the states’ marijuana laws will last long enough to see that revenue remains to be seen.

Washington Gov. Jay Inslee and State Attorney General Bob Ferguson met with U.S. Attorney General Eric Holder Jr. in January about the state’s intention to move forward with implementing the law. “They laid out for Attorney General Holder what the timeline was that the board was pursuing, and signaled to him that we’re moving ahead and, apparently, according to what the governor shared with the press, they received no signals that indicated that they needed to stop with implementation at this time,” Holcomb says.

From Fringe to Mainstream
Several recent polls show that Colorado and Washington voters are not alone in their support of marijuana legalization.

“To some extent there seems to be a kind of attitudinal shift going on. You saw the votes in Colorado and Washington reflecting that,” says Edward Jurith, a professor at American University Washington College of Law and senior counsel at the White House Office of National Drug Control Policy.

According to a Public Policy Polling national survey taken weeks after the general election, 58 percent of 1,325 registered voters sampled were in favor of legalizing marijuana and 47 percent believed that the federal government should allow Colorado and Washington to establish the ballot measures approved by voters. Half of respondents said they think marijuana will be legalized under federal law within the next 10 years.

In 2011 a Gallup survey found that a majority of Americans—50 percent—supported the legalization of marijuana, a first since the polling firm started monitoring attitudes on the issue in 1969 when only 12 percent of the public supported legalization.[1]

A Pew Research Center poll released in April revealed similar results—52 percent of respondents said marijuana should be legalized. The poll also broke down the results on a generational level and found that 65 percent of Millennials (those born between 1980 and 2000), 54 percent of Generation X (those born between 1965 and 1980), and 50 percent of Baby Boomers said marijuana use should be legalized.

“I think there is beginning to be recognition among policymakers and pundits that we are at a tipping point when it comes to the public’s desire for alternatives to marijuana prohibition, and I think there is now finally recognition that advocating for the legalization and regulation of adult marijuana consumption is not only a fringe issue, it’s in fact the majority opinion. I don’t think that realization really hit home until the results on Election Day,” says Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML). “Clearly a seismic shift occurred on November 6th and we are now riding that wave; we have the wind at our backs.”

While they may not be part of the seismic shift, other states have established lesser marijuana reform laws over the past year. In June 2012 Connecticut Gov. Dannel Malloy signed into law a bill authorizing the use of marijuana for patients with certain debilitating diseases or medical conditions. In November 2012 Massachusetts voters approved a referendum legalizing medical marijuana use, while a similar initiative almost passed in Arkansas with 49 percent of the vote. This April Rhode Island became the 15th state to decriminalize marijuana use.

Rauch, who published a book in 2004 about same-sex marriage, sees striking similarities between that issue and marijuana reform, one of which is the way these contentious social issues have moved from the fringe to the mainstream. “Gay marriage was snickered at for years and you couldn’t get a bill introduced in the legislature; it was either a joke or contemptible. Things change very quickly once you get political traction and once the voters go, ‘We kind of like this.’ Then things become very mainstream very quickly, and that’s what happened with marijuana. This is now a mainstream issue just as gay marriage is. Like it or hate it, it’s going to be a controversy that’s going to go on for a number of years; the snickering is over,” he says.

Debating the Options
Like same–sex marriage, one need not be a beneficiary of legislative efforts on marijuana reform to support the issue. In other words, it’s not just marijuana users who want to see U.S. drug laws reformed—the country’s expensive, drawn-out war on drugs has soured many. Marijuana reform supporters point to wasted resources, overcrowded jails, and drug-related violence at home and abroad as signs that the war has failed.

“Even those people who don’t like [marijuana] recognize that arresting, prosecuting, and jailing people for it doesn’t make sense,” Holcomb says.

Before joining the ACLU, Holcomb was a defense attorney who represented many clients accused of marijuana offenses in both state and federal court. “The hypocrisy really started to bother me that I was somebody who could enjoy alcohol if I chose to do so, even when I was young and maybe drinking underage, and I didn’t face any of the consequences that these people were facing,” she says. “All of the long-term collateral consequences that come with being involved in the criminal justice system were very distressing to me because there are lost opportunities and it just really seemed unfair that people who were using marijuana instead of alcohol were facing these kinds of consequences.”

All that trouble for a drug that reformers like NORML’s Armentano and Steve Fox, director of government relations at the Marijuana Policy Project (MPP), view as safer and less harmful than alcohol and tobacco. And yet marijuana is listed as a Schedule I drug (alongside heroin) in the Controlled Substances Act of 1970, with a “high potential for abuse” and “no currently accepted medical use” in the United States.

“There is no science supporting the notion that cannabis should be classified by federal law as a substance equally dangerous to the user and society as heroin and less than meth and cocaine, but that’s the law,” Armentano says. He also argues that it’s clear marijuana prohibition has not been a successful policy in its 75-year history, so why continue with it?

Fox expressed similar sentiments. “When it comes right down to it, people know that alcohol prohibition was a failed policy. You just can’t take a popular substance and make it illegal and have everything turn out well; people will find a way to get it, and all you’re going to do is make people who are doing illegal things wealthy. And marijuana prohibition makes less sense than alcohol prohibition given the fact that marijuana is far less harmful than alcohol,” he says.

While polls show a shifting view on marijuana legalization, many are still opposed to the idea and share a concern that legalization will cause marijuana prices to plummet, thereby increasing use and possible dependency.

One opponent of legalization is Kevin Sabet, cofounder of Smart Approaches to Marijuana (SAM) who previously served as a senior advisor to the director of the Office of National Drug Control Policy.

SAM was created shortly after the Washington and Colorado marijuana laws were passed. Former U.S. Rep. Patrick Kennedy (D–R.I.) called Sabet to voice his displeasure at the passage of the laws, saying it was not going to be a gain for public health. The two men talked about the limited debate on marijuana reform, where the only two choices being presented to the public appeared to be legalization or a war–on–drugs style policy.

“[SAM] was started because a lot of people working in public health and politics were frustrated with the current dialogue on marijuana, which really presents the American public with what we think is a false dichotomy. Our choices for marijuana are zero tolerance—lock everybody up—[or] legalization. We reject that dichotomy and understand that there are a lot of interesting policies in between that don’t fit either of those two baskets. So we’re really trying to shake up the marijuana debate,” he says.

Sabet also rejects claims that marijuana is no more harmful than alcohol and tobacco because the marijuana available today “is not your weed of the 1960s.” According to Sabet, marijuana can be especially harmful to the adolescent brain and that one in six kids will become addicted to the drug.

Professor Jurith has similar concerns about the safety of marijuana use, saying the average potency of marijuana seized and tested by federal authorities between 1998 and 2008 has more than doubled. “I think what’s been lost in a lot of this debate is the health consequences of marijuana. This is not a safe drug. Looking at the science, I think there is general consensus that while it may be ‘safer’ than alcohol or tobacco, that kind of a moral relativity argument doesn’t make any sense. This is a drug that has some serious health ramifications, and I think that needs to be factored into this discussion more seriously than it has up to now,” he says.

“If you look at the history of drug control, particularly with cocaine, there was a real belief that it was a safe drug to use. Half a decade later we wake up with a massive cocaine problem in our country that we’re finally getting out of. I’m not arguing for harsh criminal sanctions, I don’t think they have worked particularly well, but I think this requires a much more sophisticated and enlightened approach rather than just making the thing available and let’s see what happens,” Jurith adds.

While Washington intends to put some of the marijuana tax revenue aside for public health education and treatment, some addiction experts worry that there will not be enough money available to deal with what they think will be the inevitable increase in the number of people needing treatment.

“My opinion and the opinion of many addiction professionals is that it doesn’t seem as if states are considering all of the ramifications, in terms of the cost of addiction and the threat to public health, of the increase in marijuana addiction,” said Denise Perme, manager of the D.C. Bar Lawyer Assistance Program.

Still Unsettled Science
Colorado and Washington may be the only states that have legalized recreational marijuana use, but 18 states and the District of Columbia have allowed marijuana for medical purposes since California passed Proposition 215 in 1996.

“I think medical use was sort of the awkward adolescence of legalization, it was toe in the water, it was showing people that the wheels wouldn’t come off if marijuana was made available publicly and legally. And in many ways that cleared the path for full legalization,” Kamin says.

However, there has been some pushback on medical marijuana laws in some states. After Delaware passed a bill in 2011 allowing medical marijuana use, Gov. Jack Markell halted its implementation when the federal government indicated that people involved in the cultivation and distribution of the drug could be subject to prosecution.

Arizona’s medical marijuana program, created by a 2010 voter initiative, has had its share of high–profile opponents, including Maricopa County Attorney Bill Montgomery, who tried unsuccessfully to get the state courts to shut down the program.

Most prominently there’s been the federal crackdown in California that has led to hundreds of marijuana shops being put out of business and a man who ran three dispensaries being sentenced to 10 years in prison. In 2011 California’s four U.S. attorneys held a press conference to state that they were going to target large–scale growers and dispensary owners who, according to them, were collecting for-profit sales, which is prohibited by state law.

While federal authorities may have seen themselves as going after businesses that were openly flouting the law, marijuana reform advocates saw the property seizures, prosecutions, and raids going on in California as aggressive and unfair targeting of medical marijuana providers.

The U.S. Department of Justice has issued two memorandums, the “Ogden Memo” in 2009 (after then U.S. Deputy Attorney General David W. Ogden) and the 2011 “Cole Memo” (after current Deputy Attorney General James M. Cole), concerning medical marijuana. The first memo declared that it was an inefficient use of federal funds to prosecute those involved in medical marijuana who were following their state’s rules, while the second memo took the harsher stance that those involved in cultivating, selling, or distributing marijuana are violating the Controlled Substances Act, regardless of state law.

“I think there have been a number of confusions, in part because of the language in the Ogden and Cole memorandums about what the federal posture is. My sense is that they issued the Cole memorandum because they felt that the Ogden memorandum left too many loose practices in many states and got away from the notion that the federal policy was not to prosecute individual users who in good faith are trying to comply with their state’s medical marijuana laws,” Jurith says. “I think that a lot of that confusion still remains. When you’re talking about large-scale growing operations and distribution systems, it’s something that’s not going to escape the attention of federal jurisdiction.”

The medical marijuana program in the District of Columbia got off to a rocky start. Sixty-nine percent of District voters first approved legalizing medical marijuana through Initiative 59 in 1998, but Congress blocked its implementation with a rider on a District appropriations bill that existed until December 2009.

Councilmember David Catania then introduced the Legalization of Marijuana for Medical Treatment Initiative Amendment Act of 2010, which amended Initiative 59. Under the law, patients suffering from cancer, HIV-AIDS, multiple sclerosis, and glaucoma qualify for the program with a doctor’s prescription and will be able to purchase up to two ounces of marijuana per month. The law allows for as many as 10 cultivation centers in the city where up to 95 plants could be grown at a time and then sent to five distribution centers. In March 2012 the city selected six companies to grow or supply marijuana.

While medical marijuana programs are widespread, marijuana reform activists are still frustrated by the lack of support for the programs and for medical research from the federal government.

“We have 18 states where there are literally hundreds if not thousands of physicians in accordance with state law recommending cannabis therapy to hundreds of thousands of patients, yet the federal government is upholding the notion that cannabis lacks any accepted medical value,” Armentano says.

MPP’s Fox says that today’s medical marijuana programs are partly a result of the federal government blocking medical research for decades. “One of the first projects I worked on in 2002 was trying to help the University of Massachusetts get a license so that they could grow marijuana that could be used in research because right now the government has a monopoly on the supply and they refused to supply any,” he says.

In 2002 the Americans for Safe Access (ASA), a national medical marijuana advocacy group, tried to challenge marijuana’s classification as a Schedule I drug with a petition to the Drug Enforcement Agency (DEA). The DEA only responded to the petition in 2011 after the ASA sued for “unreasonable delay,” and then its decision was to dismiss it. The ASA filed an appeal to the U.S. Court of Appeals for the District of Columbia Circuit, which ruled in favor of the DEA and its view that there is currently no accepted medical use for marijuana. In March the ASA also filed a petition for rehearing and en banc review, but the petition was denied.

To reclassify a drug, the DEA needs “adequate and well–controlled studies” showing the drug’s medical efficacy, which the federal government says has not been done in the case of marijuana.

But Armentano argues that more is known about the effects of cannabis on humans than synthetic pharmaceuticals, and that in the last few years an average of over 2,000 peer–reviewed papers on cannabis have been published each year.

A Battle for the States
Colorado and Washington are moving ahead with their efforts to implement the will of the voters, and in doing so they will serve as a model for other states. The future of marijuana reform may very well continue to play out on the state level, another similarity the issue shares with same–sex marriage.

“I would argue, and have argued since 1996, that one of the things we’ve really gotten right in the gay marriage debate is allowing that debate to take place on the state level where it’s been almost entirely … That’s given us time to experiment and to find out what the implications are—will the sky fall as some people say? It allows you to do this without betting the whole country one way or another,” Rauch says.

David Benowitz, a criminal defense attorney in the District of Columbia, believes that there’s “such a conflict between what will eventually be the majority of states and federal law” that he doesn’t see what grounds the federal government will have in enforcing federal law.

California, Maine, and Rhode Island have been mentioned as possibly the next states to legalize marijuana, and the MPP (the group behind the Colorado initiative) plans to focus its efforts on getting legislation passed in these states as well as Alaska, Massachusetts, Nevada, and Oregon from 2013 to 2016.

Fox believes California and Oregon will likely pass initiatives in 2016 and that the federal law will eventually change once there’s a strong argument to be made that legalizing marijuana can generate revenue.

“I think the federal law will change once a strong argument can be made that they will actually generate revenue from it. I think when they realize it is being sold legally in some states and the federal government is not getting any tax revenue from it, they’ll say, why are we wasting money on law enforcement when we can save that money and get $50 for every ounce of marijuana sold and take in billions of dollars annually?” he says.

While the federal law is unlikely to change anytime soon, some members of Congress have recently introduced marijuana reform bills. U.S. Reps. Earl Blumenauer (D–Ore.) and Jared Polis (D–Colo.) introduced bills in February that would provide a system of taxation and regulation for marijuana in states where it’s legal. They also coauthored the report “The Path Forward: Rethinking Federal Marijuana Policy,” released the same month.

Blumenauer’s bill would create a federal marijuana excise tax of 50 percent on the “first sale” of marijuana, which is typically from the grower to a processor or retailer. It would also tax producers or importers of the drug $1,000 annually and tax other marijuana businesses $500.

Polis’ bill would regulate marijuana in the same way the federal government handles alcohol. In states that allow marijuana, the bill would require growers to obtain a federal permit. Oversight of the drug would be taken away from the DEA and handed over to a renamed Bureau of Alcohol, Tobacco, Marijuana, Firearms and Explosives. It would also be illegal to bring marijuana from a state where it’s legal to one where it’s not.

In April Republican Rep. Dana Rohrabacher of California introduced a bill that would amend the Controlled Substances Act “to make clear that individuals and businesses, including marijuana dispensaries, [that] comply with state marijuana laws are immune from federal prosecution,” reported The Washington Post. The bill had three Republican and three Democratic sponsors. While Rohrabacher’s bill may be able to ease the conflict between Colorado and Washington laws and federal prohibition, it’s too early to tell. As of April the Obama administration had given no indication as to how it would proceed with the situation. It could allow the states to experiment with legalization, or it could stop the experiment before it even begins.

“The law doesn’t settle this. There’s no easy way to do this that makes it legally non–contentious. If the federal government weighs in and cuts down what the states are doing, the states will sue and we’ll have a court case saying the federal government pushed too far, but if the federal government reaches an accommodation, there will probably be another kind of court case with people saying, ‘No, you can’t do that, you’re violating federal law.’ It’s not cut and dry, so the Obama administration is sitting there wondering how do they handle this,” Rauch says.

Attorney General Holder has not publicly commented on the issue, but he did tell members of the U.S. Senate Committee on the Judiciary in March that the administration was considering its response and would announce its policy soon.

President Obama also has not publicly commented on marijuana reform efforts, but during a televised interview with Barbara Walters last December, he said that it “would not make sense” for the federal government to be “going after recreational users in states that have determined it’s legal.”

Armentano believes that looking to the past may give us a glimpse of the future. “If we want to have an idea of how this will play out, we’ll have to go back and look at our history and at the history of alcohol prohibition,” he says.

Alcohol prohibition was a federal policy implemented by the individual states, similar to today’s situation with marijuana. When New York decided not to enforce alcohol prohibition anymore, it set the tone for what was to come as other states followed suit. Eventually the federal government decided that it was not going to commit the resources needed to enforce the law.

“I believe that in the next four to eight years we will probably see at least four or five additional states bow out of marijuana prohibition at the state level. Will that be enough for the federal government to throw up its hands in a manner similar to what it did with alcohol prohibition? I don’t know, cannabis prohibition has existed for a far longer period of time and I would argue there’s much more interest in keeping it illegal, but with that said I think that if the federal law exists but the government doesn’t have the manpower, resources, or political will to enforce it, and a growing number of states opt out, at some point I do believe you will see a similar situation,” Armentano says.

Note
[1] The 2011 Gallup survey showed that 50 percent of Americans were in support of the legalization of marijuana, 46 percent were against it, and 3 percent had no opinion.

Reach Kathryn Alfisi at kalfisi@dcbar.org.