What Happens if Washington or Colorado Legalizes Marijuana Next Week?

The latest Washington Poll, conducted from October 18 through October 31, suggests that state's marijuana legalization initiative probably will pass on Tuesday: 55.4 percent of likely voters favored Initiative 502, while just 37.6 percent were against it. That level of support is consistent with other polls taken this month and last. Colorado's marijuana legalization initiative, Amendment 64, may also pass. A Public Policy Polling survey conducted from October 23 through October 25 put support among likely voters at 53 percent, with 43 percent against. What happens if voters approve these measures?

Under Washington's I-502, penalties for possession of up to an ounce of marijuana by anyone 21 or older will be immediately repealed. Public consumption will be a Class 3 civil infraction, subject to a $50 fiine. Criminal penalties for selling marijuana paraphernalia also will be eliminated. The initiative creates a new legal standard for "driving under the influence of marijuana": five or more nanograms of THC per milliliter of blood for drivers 21 or older and any amount for drivers younger than 21. (These rules, intended to reassure voters worried about the traffic-safety implications of legalizing marijuana, have been controversial among drug policy activists because they may expose unimpaired pot smokers to the risk of license suspension and criminal penalties.) The Washington State Liquor Control Board has until December 1, 2013, to adopt regulations for marijuana growers, wholesalers, processors, and retailers. The state-licensed pot shops will be unobtrusive, with a single sign "identifying the retail outlet by the licensee's business or trade name," no cannabis products visible from the street, and no on-site consumption (which means Washington's legal, state-licensed pot shops will be more discreet than Amsterdam's technically illegal but tolerated cannabis cafés). The marijuana stores must be more than 1,000 feet from "any elementary or secondary school, playground, recreation center or facility, child care center, public park, public transit center, or library."

Unlike in Washington, pot smokers in Colorado will have an immediate state-legal source of marijuana. Amendment 64 legalizes not only possession of up to an ounce but also nonprofit transfers of that amount and home cultivation of up to six plants. As in Washington, "consumption that is conducted openly and publicly" would remain illegal. The Colorado Department of Revenue has until July 1, 2013, to adopt regulations for commercial marijuana producers and sellers. Amendment 64 allows local governments to ban pot stores within their jurisdictions, the same leeway they have under Colorado's law governing medical marijuana dispensaries. The initiative also requires the state legislature to "enact legislation governing the cultivation, processing, and sale of industrial hemp" by July 1, 2014.

Marijuana will still be prohibited under federal law. But contrary to an argument made by opponents of Proposition 19, the California legalization initiative that lost by five percentage points in 2010, that does not mean the Supremacy Clause makes these measures unconstitutional. As Jonathan Caulkins and three other drug policy scholars note in their new book Marijuana Legalization: What Everyone Needs to Know, "The Constitution does not allow the federal government either to order state governments to create any particular criminal law or to require state and local police to enforce federal criminal laws."

Even under national alcohol prohibition, which unlike the federal ban on marijuana was authorized by a constitutional amendment, states were free to go their own way. They could decline to pass their own versions of the Volstead Act (as Maryland did), repeal them (as a dozen states, including Colorado and Washington, did while the 18th Amendment was still in force), or simply refrain from prosecuting people under them (which was common in the wetter districts of the country). "The question is not whether a state could change its own laws," Caulkins et al. write. "Rather, the question is how the conflict with the continued federal prohibition would play out."

While the feds certainly can make trouble for any state that dares to legalize pot, there is a practical limit to what they can accomplish on their own. According to the FBI, there were about 750,000 marijuana arrests nationwide last year, the vast majority for possession. State and local police departments were responsible for something like 99 percent of those arrests. It simply is not feasible for the Drug Enforcement Administration (DEA)—which has about 5,500 special agents nationwide, compared to about 765,000 sworn personnel employed by state and local law enforcement agencies—to bust a significant percentage of people who grow pot for themselves and their friends (as Colorado’s initiative allows), let alone people who possess it for recreational use.

The DEA can raid state-legal pot shops, as it has done with medical marijuana dispensaries, but the number of potential targets will be considerably larger once the market officially expands to include recreational users. The Justice Department can use asset forfeiture as an intimidation tactic against landlords and threaten banks that accept deposits from pot businesses with money laundering charges. The Internal Revenue Service can make life difficult for pot sellers by disallowing their business expenses (but not, thanks to a tax law wrinkle, their "cost of goods sold," which includes the cost of buying marijuana). The feds could even threaten state regulators with prosecution for handling marijuana or facilitating the trade, although that seems less likely, since it would provoke a direct confrontation with state officials. (Washington's initiative seeks to minimize this risk by assigning the task of testing marijuana for regulatory purposes to private, state-approved laboratories.) The one thing federal drug warriors cannot do, judging from their track record even when they have the full cooperation of state and local law enforcement agencies, is suppress the business entirely.

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  • anon||

    Unfortunately, those in favor of the proposed legislation will forget that they have to vote to actually legalize pot. Damn stoners, get your shit together just for a week!

  • Certified Public Asskicker||

    What Happens if Washington or Colorado Legalizes Marijuana Next Week?

    The Feds sweep in?

  • Libertymike||

    What happens?

    ROAD TRIP!

  • anon||

    If only they had a dog to shoot instead.

  • Ken Shultz||

    It's hard to believe this might really happen.

  • juris imprudent||

    It does almost make me wish Obama remains President just to deal this as an issue of Federalism. He might just destroy the Dem party in doing so.

  • fish||

    He might just destroy the Dem party in doing so.

    From your lips to gods ear! Maybe he can destroy the Repukes while he as it!

  • ||

    It's hard to believe this might really happen.

    Yeah this is going to be weird.

    I remember when i first heard of reason. It was on C-span and they had Dorhety and Nick pushing the "choice" and Burning man" books.

    They talked about some sort of drug domino effect. Like if one gets legal then the whole prescription drug war on drug falls apart.

    I wonder what ever happened to that theory? Is it still operable? or did they abandon it?

    I think this is the video:

    http://www.c-spanvideo.org/program/184495-1

  • sarcasmic||

    "The Constitution does not allow the federal government either to order state governments to create any particular criminal law or to require state and local police to enforce federal criminal laws."

    "Them's some perty federal highway funds you got there. Be a shame if something happened to them."

  • Libertymike||

    "Mr. Federale, you have yourself a right perty wife. Wouldn't it be a durned shame if somehting happened to her?"

  • anon||

    At some point maybe the state will decide that jumping through federal hoops for highway funding/etc just isn't worth it, like South Carolina.

  • ||

    At some point maybe the state will decide that jumping through federal hoops for highway funding/etc just isn't worth it

    I don't know about Colorado, but Washington state would never give up its federal highway dollars.

  • R C Dean||

    Bingo. A new condition will be added to highway funding.

    Don't know: once these referenda pass, what happens next? Is it automatically the law? Does the legislature have to do anything? Can the legislature just go ahead and pass a new law making pot illegal again?

  • anon||

    I don't know about Colorado and Washington, but generally the politicians vote to put the issue to the voters as a way to evade liability for the vote; no "Senator Dipshit voted to legalize POT TO KILL UR CHILDRUNZ!!!11" ads this way.

    So I would assume that the ballot measures would become law in a time frame that was allocated in the bill that put the measure to a ballot proposal.

  • ¿Ex Nihilo?||

    Can the legislature just go ahead and pass a new law making pot illegal again?

    I CO it is an amendment to the state constitution. They cannot override that.

  • sarcasmic||

    True. But they can ignore it.

  • ¿Ex Nihilo?||

    True, but I would think any conviction would be thrown out on appeal.

  • juris imprudent||

    Not if brought in Federal court.

  • ¿Ex Nihilo?||

    Not if brought in Federal court.

    Which is why I don't think this will change much. The Feds are not going to back down on it, they may even ramp it up in these two states; just so the rest don't get any ideas about who is really in charge.

  • ||

    You think local prosecutors are going to be bring Federal cases?

  • sarcasmic||

    You have more hope that I.

  • sarcasmic||

    *than*

  • R C Dean||

    The Colorado Department of Revenue has until July 1, 2013, to adopt regulations for commercial marijuana producers and sellers.

    The Washington State Liquor Control Board has until December 1, 2013, to adopt regulations for marijuana growers, wholesalers, processors, and retailers.

    And what happens if they don't?

  • NeonCat||

    Lawsuits?

  • anon||

    They get the "full load?"

  • Paul.||

    What happens if a state doesn't set up an insurance exchange?

    You have your Iron Lorez, I gots mine: Never underestimate the government's ability to regulate or ban something through sheer force of will.

  • R C Dean||

    Yeah, that's kind of what I'm getting at. I suspect that these referenda could pass, and a year from now we will be reading furrowed-brow posts on H&R on how pot just doesn't seem to be actually, you know, legal yet. What with the pressure from the feds and the WOD-Industrial Complex, foot-dragging by agencies, and legal challenges.

  • anon||

    Wait, you mean even though the people vote for change, power hungry politicians find it in their own personal interest to maintain the status quo!?

    Say it ain't so!

  • fish||

    I think that we have probably crossed the WOD Rubicon at this point. They will need the revenue source at some point.

  • Almanian's Evil Twin||

    Bongwater bath?

  • Scarcity||

    And what happens if their regulations are in opposition to the spirit of the law?

  • anon||

    Then SCOTUS declares it a tax?

  • Robert||

    If they don't adopt regs, then any operation will be presumptively legal.

  • Scarcity||

    All skepiticism about implementation aside, this is on the verge of being amazing from a mostly nonsmoker's perspective on freedom.

  • anon||

    The irony being that the people of Colorado and Washington voted to put a man in office guilty of restricting more liberties than can be listed.

  • dungbeard||

    I imagine whatever happens will involve a lot of giggling and unfinished sentences.

  • jway||

    ...what were we talking about?

  • Moe19||

    THE WORLD COMES TO AND END!!!!!!!11 ZOMG!!!1111

  • Scarcity||

    I know one thing that better happen: all the white wimminz better high-tail it out of Washington and Colorodo!

  • jway||

    hahahahahaha! I see you know your history!!

  • ||

    See all you freaks in Seattle!

    Does anyone know a good pro-legalization (or for that matter any other freedom advancing) nonprofit? It is "Community Giving" time and in addition to the Reason Foundation (disclose this, Sullum!) I wouldn't mind throwing a few bucks their way, just to confuse the mailing lists.

  • Paul.||

    Does anyone know a good pro-legalization (or for that matter any other freedom advancing) nonprofit?

    Me.

    I'm decidedly pro-freedom and pro-legaliztion. And I'm completely non-profit.

  • nicole||

    Dagny, I'm sure you know them already, but the Institute for Justice is usually at the top of my list for donations.

  • ||

    See all you freaks in Seattle!

    What makes you think Seattle will be the new pot Mecca?

    This is a state wide initiative don't you know?

  • ||

    One thing about Colorado vs Washington is that Washington has a fairly large agricultural base.

    Look at google maps. Go to central Washington near Moses Lake and Quincy.

    See all those irrigated crop circles? They are a mile in diameter....and I90 goes right through them.

    Somehow I think things are going change pot growing in Washington state from some basement operations and secret forest land thing to something completely different.

  • Malcolm Kyle||

    "With over 5 million people on probation or parole in the United States, drug use on parole or probation has become the primary basis by which thousands of people are returned to prison. These technical violations of parole or probation account for as many as 40% of new prison admissions in some jurisdictions." - page 6

    PROHIBITION IS A DIRECT THREAT TO PUBLIC SAFETY:

    "The “war on drugs” has also generated indirect costs that many researchers contend have undermined public safety. The federal government has prioritized spending and grants for drug task forces and widespread drug interdiction efforts that often target low-level drug dealing. These highly organized and coordinated efforts have been very labor intensive for local law enforcement agencies with some unanticipated consequences for investigation of other crimes. The focus on drugs is believed to have redirected law enforcement resources that have resulted in more drunk driving, and decreased investigation and enforcement of violent crime laws. In Illinois, a 47% increase in drug arrests corresponded with a 22% decrease in arrests for drunk driving. Florida researchers have similarly linked the focus on low level drug arrests with an increase in the serious crime index."

    —Drug Policy, Criminal Justice and Mass Imprisonment, by Bryan Stevenson

    http://www.globalcommissionond.....venson.pdf

  • jway||

    The one thing federal drug warriors cannot do, judging by SEVENTY YEARS of federal marijuana prohibition, is stop people buying and using marijuana.

    So what's it going to be - legal stores selling government-regulated marijuana to adults, or drug dealers on the streets selling cartel-grown weed to kids. You decide America, it's YOUR taxes that funds the prohibition!

    Paranoid old men in the federal government keep marijuana illegal and make your children LESS safe!

  • NeonCat||

    Hey! Michele Leonhart is not an old man!

  • Paul.||

    So what's it going to be - legal stores selling government-regulated marijuana to adults, or drug dealers on the streets selling cartel-grown weed to kids. You decide America, it's YOUR taxes that funds the prohibition!

    Lessee, me and all my friends make 6+ figures a year prosecuting the drug war. I have equipment, budgets, departments, and entire lifestyle built around drug prohibition. Thousands of jobs, employees, entire institutions built around the concept of illegal drugs. And I'm just going to turn all that off, resign, fire all of my employees, and get rid of all this kick ass equipment and close the doors on these institutions simply because you wanna smoke you some weed. Yeah, not going to happen.

  • Mike Parent||

    If what you said was true, instead of sarcasm, I would say you and your friends are contributing nothing to the economy and in fact are hurting it. You've manufactured Nothing while using taxpayer dollars to fund your failed enterprise. You've been involved with a form of government welfare for over 70 years and have accomplished nothing other than draining a Trillion Dollars from the coffers of this country while Jailing many tens of millions of your fellow Americans for Victimless "Crimes". Perhaps it's time for you and your cronies to get real jobs and stop being Enforcers of a morally bankrupt policy. Yep, that what I would have said.

  • jdgalt||

    Existing laws in every state say that driving with ANY measurable amount of an illegal substance in your system is automatically DUI (and combined with the fact that marijuana can show up in pee-tests more than a month after you've had any, lends itself readily to abuse by law enforcers).

    Therefore, setting a limit is good for liberty. It would be nice if some science were done, so that the limit is comparable (in effect) to the limit for alcohol, but it's still an improvement over the way it is now.

  • Mike Parent||

    It will be TWO steps in the right direction. If only Oregon could pull the upset win, it would be truly monumental

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