Three Shots at Marijuana Legalization This Fall

The Drug War Chronicle has a helpful run-down of the drug policy initiatives that will appear on state and local ballots in November. The highlight: Voters in three states—Colorado, Oregon, and Washington—will decide whether to legalize the cultivation and sale of marijuana. All three states already allow medical use of the plant, but the new initiatives would go further, allowing production and distribution for recreational use. Under Colorado's initiative, Amendment 64, the state would license growers and retailers, and adults 21 or older also could grow their own (up to six plants at a time) as well as possess up to an ounce of usable marijuana. Oregon's initiative, Measure 80, would establish a seven-member Oregon Cannabis Commission to license and regulate producers of marijuana, which would be sold in stores run by the commission. The initiative is called the Oregon Cannabis Tax Act, which seems not strictly speaking accurate, since the revenue it generates would come not from taxes but from growers' licensing fees and pot smokers' purchases at state-run stores. But the name is (perhaps intentionally) ironic, since the 1937 law that effectively banned cannabis at the federal level was called the Marihuana Tax Act. Washington's ballot measure, Initiative 502, calls for private stores regulated by the state liquor commission, with sales subject to a 25 percent tax; it would not allow home cultivation, except by medical marijuana users. It would establish a cutoff for driving under the influence of marijuana: 5 nanograms of THC per milliliter of blood.

Four other 2012 initiatives deal with medical marijuana. Initiatives in Arkansas and Massachusetts would legalize medical use of marijuana and authorize distribution by state-licensed nonprofits. A Montana initiative would overturn restrictions enacted by the state legislature last year that effectively banned medical marijuana dispensaries. A North Dakota initiative legalizing the distribution and use of marijuana for medical purposes also may qualify for the ballot.*

Another initiative, California's Proposition 36, does not deal with drug policy directly, but it would allow the release of many people who received life sentences for minor drug offenses under that state's "three strikes" law. Proposition 36 would require that a third strike, the conviction that triggers a mandatory life sentence (with parole possible after 25 years), be a "serious or violent" crime. Under current law, only the first two strikes have to fall into that category, while the third strike can be any felony, including "wobbler" offenses that are often charged as misdemeanors. The upshot is that someone who has already served time for two different burglaries can go to prison for the rest of his life after being caught with stolen property or even a bag of marijuana. "There's a shocking number of people whose third strike is simple possession," says Stanford law professor Michael Romano, co-author of Proposition 36.

Under Romano's measure, about 3,000 inmates who are serving life terms for nonviolent offenses could be resentenced, provided a judge determines that doing so would not pose an "unreasonable risk to public safety." Prisoners who had previously been convicted of rape, murder, or child molestation would not be eligible. Those two safeguards make the initiative more politically palatable than a 2004 reform measure that lost by about five percentage points. That initiative also would have reclassified some burglaries as nonviolent crimes and modified the rules for enhanced sentences that apply after the second strike.

Romano says the narrower approach has paid off, winning "the support of some of the highest-ranking law enforcement officials in California," including Los Angeles Police Chief Charlie Beck and Los Angeles County District Attorney Steve Cooley. A July survey by the California Business Roundtable found that 72 percent of voters were inclined to vote yes on the initiative, which Romano says "would restore what was the original intent of the three-strikes law."

*Update: As an alert reader, Rob Port, pointed out, the North Dakota initiative did not make the ballot. Due to fraud allegations against paid petition circulators, 7,559 signatures were rejected, bringing the total to 12,533, which was 919 fewer than needed.