Election 2012

Colorado and Washington Have Legalized Marijuana. What Now?


As Mike Riggs noted earlier tonight, voters have approved marijuana legalization measures in Colorado and Washington—an unprecedented change that could help lead our country away from the unjust, cruel, and disastrous policy of using force to impose politicians' pharmacological tastes on the populace. The latest numbers show Colorado's Amendment 64 winning 53 percent of the vote, while an even larger majority, 56 percent, favored Washington's Initiative 502. What happens now?

The elimination of penalties for possessing up to an ounce of marijuana (if you are 21 or older) takes effect right away in both states (once the governor proclaims/certifies the results, within 30 days of the election). But the provisions allowing commercial production and sale of cannabis for recreational use require regulations that will be written during the next year. The Washington Liquor Control Board has until December 1, 2013, to adopt regulations for marijuana growers, wholesalers, processors, and retailers. The deadline in Colorado, where cannabis businesses will be overseen by the state Department of Revenue, is July 1, 2013. Colorado's law, unlike Washington's, also allows home cultivation of up to six plants and nonprofit transfers of up to an ounce, so Colorado pot smokers will have an immediate state-legal source of marijuana.

How will the federal government react? Allow me to regurgitate some of what I said last week:

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.

During the next few years the feds will confront the practical limits on their powers, even as they continue to defy the constititional limits (with help from the Supreme Court). The experiments on which Colorado and Washington are embarking will be instructive for the entire country, not just in terms of drug policy, where new approaches are sorely needed, but also in terms of defining the boundary between state and federal power. No one would ever mistake Barack Obama, who broke his promise to respect state laws allowing the medical use of marijuana, for a federalist. But during his second term circumstances may compel him to step back and let a few states try a little tolerance for a change.

NEXT: Food Labeling Bill Failing in California

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  1. Those same statist fuckers just gave us Obama and several more socialist senators. I hope that they cant afford the pot they just legalized.

  2. what a wonderful day for freedom here in WA (and over there is CO too apparently!)

    thanks, WA for doing the right thing vis a vis MJ.

    1. what a wonderful day for freedom here in WA

      Inslee won.

      How you feel about that?

      1. badly.

        but WA state – no permit needed to carry openly.

        shall issue right to carry

        STRONG protection of privacy, severely restricted law enforcement search and seizure power.

        legalized MJ

        i’m telling you, there are great freedoms here in the state of WA. we are doing damn fine!

        the level of privacy we recognize when compared to the federal standard is AMAZING. we place much greater limitations on law enforcement and govt. agencies. it’s a wonderful place in this regards.

        but inslee sucks ! 🙂

  3. Sooo…

    What is Washington state police going to do if they find a pot grower with only a few plants?

    “Oh yeah you have an ounce of pot you are OK”

    “OMG!?!?! you have an ounce of pot growing on plants in your closet!!! We re going to use the full force of the old laws on you now!!!”

    Anyway i have no idea what is going to happen…but i think it is not going to be as good as i wanted to be.

    1. Probably nothing, they really want to remove the police resources from it entirely unless it’s pulling people over who are dumb enough to drive stoned.

      1. You mean the people who are so dumb, that they’ve been proven to be safer than sober drivers?
        More than one study has been done – assigning a Risk Factor of 1 to sober drivers. . . where drunk drivers are at a 3-8, and stoned drivers are 0.3-1.2.

        Meaning, drunk drivers are 3-8 times as likely to be involved in an accident as a sober driver, and stoned drivers range from 1/3 as likely, to barely over *as* likely, as a sober driver.

        Remember, next time you see some doofus out on the highway, driving way faster than everyone else and dodging in and out of traffic – he’s not stoned. The stoned guy is the one in the slow lane, doing the speed limit and not causing a ruckus.

  4. Looks like people can gay marry in Washington State as well:


    I am almost not completely repelled by the politics of my state right now.

    Probably won’t last…I am sure next year Washington voters will pass an initiative that outlaws electricity.

    1. imo, law in WA state passed by initiative has been almost 100% good stuff

      LEGISLATIVE acts otoh. not so much.

      remember, this is the state that made online poker a C felony. !!

      1. WA state passed by initiative has been almost 100% good stuff

        Smoking ban in bars was an initiative as was the initiative that made hydroelectric power “dirty energy”.

        1. wow. smoking ban was initiative?

          i did not know that.

          thanx for the info. and grrrr

  5. In the past Obama has been timid at best about certain politically sensitive issues, moving only when there was plenty of political cover, as with gay rights. Maybe now that he need not seek reelection, the threat of being labeled soft on drugs will recede, the popular vote will provide the cover and he can back the federal agencies off enough to let the states have their experiment. If so look for more “Dept of Agriculture” checkpoints coming soon to a border crossing near you.

    Or, the drug warriors will prevail and the feds will litigate and threaten to withhold federal funds from states that don’t enforce our era’s Prohibition.

    1. the feds will litigate and threaten to withhold federal funds from states that don’t enforce our era’s Prohibition.

      That is exactly what is going to happen.

      1. So now the question becomes: Will the CO & WA state governments stand their ground against these threats, or will they fold like an origami book?

        I keep hoping a state without a lot of federal highways (like Delaware or Vermont) would start thumbing their noses at these mandates and then say “fuck you and your highway money, we’ll just pass some more tax laws to make up for it”.

      2. The feds can’t do that without legislation. And the gain for the other states would be evanescent from such legislation and the political cost considerable, so they’re not going to do that.

      3. They can try, but the amount of money they will be making off it will offset it easily.

        There will be no way to do anything about it.

    2. This assumes that Obama is only concerned about being soft on drugs. Obama needed the support of the insurance and pharmaceutical industries in order to get the ACA passed. I wouldn’t be at all surprised if the pharmaceutical industry has said that its ongoing support is dependent upon the continued federal prohibition of marijuana so that they can create and sell cannabinoid based medicines.

      1. It’s a good point, there is a lot of money in the drug war as Mr. Sullum and others have pointed out, and powerful interests stand to lose money if this piece of the war goes away, not just big pharma. But at this point is there much they can do about what happened in WA and CO except file amicus briefs and lobby for the withholding of federal $$?

        1. The DEA raids in California were used to put fear in anyone who decided to operate a dispensary. And the threat of withholding federal dollars was enough to get all states to set their minimum drinking ages to 21. Maybe I’m being pessimistic but it seems that the Federal government does have enough leverage to trample on state rights if it so chooses.

          1. The drinking age thing came about with a popular nat’l movement in that direction. There being no popular nat’l movement toward pot prohib’n at this time, I don’t see that happening soon. Maybe in, say, 5 or 10 yrs. (or more) there’ll be popular pushback against liberaliz’n of pot laws, and then it might be time for that — just as the drinking age thing came a number of yrs. after the lowering of the age to 18 in many states.

            1. It’s true that the drinking age prohibition came about because of a popular national movement. But I’m wondering if the Obama administration could get away with coercing WA and CO with the threat of withholding federal funds even without any sort of popular movement. Obama trampled all over CA’s medical marijuana law. Yet, he’s wildly popular here even though these same people were dead set against Bush’s trampling of civil liberties.

  6. Someone in WA or CO need to go test it out and smoke a blunt in front of a cop.

    1. Can’t smoke it in public in Washington state.

      I guess you could wave a baggy full of pot at them.

      1. what about on your porch?

      2. what about on your porch?

        1. iirc, the law makes it a civil infraction if done “in view of the general public”. so, porch would probably be a violation

      3. feel free to wave away at me!

        1. Blind squirrels and all that…

  7. correction: can’t smoke pot in public.

  8. So how much is WA gonna sell a dub for?

  9. “Colorado’s law, unlike Washington’s, also allows home cultivation of up to six plants and nonprofit transfers of up to an ounce…”

    It’s like they legalized it just for hippies.

    1. That’s actually ahead of where any state is with home distilling (or is that also just a federal ban), no?

    2. Well, duh, of course hippies, who do you think primarily pushed this?

  10. This just in: Obama will send in drones to surgically remove pot smokers in CO and WA. It’s a vital issue of national security.

  11. your views are great!!!!

  12. A wonderful win for liberty, but I don’t see how this won’t increase violence. No, not in the usual baseless fear-mongering way, but in an easily expected economic way.

    Remove a source of drug dealer’s profits, and they’ll inevitably introduce potentially harsher new drugs and increase violence to maintain their bottom line. Legalization has to be wholesale to curb gang warfare, or it’ll only logically increase.

    Which would not only be bad socially, but it could more permanently give prohibitionists the false proof they need to correlate legalization with an increase in violence, thus stopping the movement completely.

    I just hope to mother Mary (juana) I’m wrong.

    1. Well, let’s consider Mexico. Let’s say that the US legalized pot (and only pot, not drugs in general). There would probably be a spike in violence as the cartels rushed to control the remaining illegal drugs, but longer-run there would be less violence because there’d be less competing cartels–some of them would even just go out of business without marijuana money.

      If there is increased violence in WA or CO then I think it will be like that, a spike followed by an overall decline.

      1. The rest of drugs should soon follow.

  13. “Remove a source of drug dealer’s profits, and they’ll inevitably introduce potentially harsher new drugs and increase violence to maintain their bottom line.”

    What harsher new drugs are you talking about?

    1. Hopeium. Worst stuff on the planet

      1. even worse when mixed with Changeium…

    2. Nothing specifically, but it follows that if a gang wants to keep its profits at the level before pot was taken from them, introducing anything more addictive would make it that much simpler to maintain their status quo.

      Granted, that’s almost a separate point which is also complete conjecture on my part.

      What does seem logical and likely (to me at least) is the violent reaction of competing gangs who just suddenly make less money. Cut off all off their drug income and they’re crippled. Cut off a minor part of it, and they’re just kicking the hornet’s nest.

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    1. What the fuck is this aborted fetus of a comment? The worst fucking spam EVER!

      1. makin’ me laugh!!!!

  15. This seems optimistic to me. I could very easily see Obama going full tilt against these measures being his most likely political move. Why not appease the DEA, prison builders, pharma, etc? No need for the veneer of hope and change at this point…

  16. As I understand it, Oregon’s marijuana ballot measure was to legalize marijuana but that it could only be sold and distributed for recreational use from government dispensaries. Whether or not I correctly understood Oregon’ ballot measure, obviously that is not the right answer but I wonder what some Reason readers think. Is it worth it to give the state a legal monopoly over marijuana if it means it can be legalized in some form? In other words, would you vote in favor of such a ballot measure to legalize with that kind of caveat? And would such an approach do anything to undermine black market sales of marijuana?

  17. Let the rest of the states follow suit.

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  21. Licensing of users/buyers of alcohol, marijuana and any specific drug would best balance public safety and freedom. A licensing test should require 95% correct answers. The questions would test knowledge of the use, effects and dangers of the licensed substance. The government must also use some license funds to provide help for abusers/addicts.


  22. Why would the government in Colorado and Washington Have Legalized Marijuana? if they are not the ones smoking it. I think this is very uncomfortable to me.

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