Marijuana prohibition is coming to an end. I see it in my neighborhood, as a storefront is vacated by an architect and occupied by a purveyor of medical cannabis. I see it politically. Legalization is coming, though exactly when and how is not yet clear.
Washington, my home state, is one of 16 medical-marijuana states (and one of the five that have allowed it since the 1990s, the others being California, Oregon, Alaska, and Maine). That leaves 34 non-medical-marijuana states. Still, the list of medical-marijuana states keeps growing: Arizona in 2010, as well as the District of Columbia, and Delaware in 2011.
The opponents of medical marijuana argue that it is a step toward full legalization, and they are right. Politically it is. But the next step is a tricky one.
The problem is the federal law. When California legalized medical cannabis in 1996, it set up a conflict of federalism. Under the Constitution, particularly the Ninth and Tenth Amendments, there ought not to be any federal law about marijuana, but there is. The Controlled Substances Act exists, and the courts uphold it.
In 2005, the US Supreme Court ruled on the federal claim of power over marijuana as medicine. That was the Raich case. A prominent libertarian legal theorist, Randy Barnett, argued at the high court against the federal position, and he had a fine argument. But he lost. There were sharp dissents by justices Sandra Day O’Connor and Clarence Thomas, but the court sided with the government.
Having pushed aside the Constitution, however, the Bush administration failed to press its advantage in the field — at least, not for a decisive victory. Then, in 2009 came the Obama administration. In October of that year, the Justice Department said there would be no federal prosecutions of doctors or patients who were following their state’s medical-cannabis laws.
That was taken as more of a favorable signal than it was. In California, storefront dispensaries were opened with big images of marijuana leaves and green crosses in their windows. But the memo had not made any promises to suppliers of marijuana. By 2011 dispensaries had opened in several states, and US attorneys drew the line. They sent letters warning that any business in marijuana would not be tolerated.
I can report what happened in Washington state. It had one of the earliest medical marijuana laws, but it was a law with holes in it. Some of the holes favored the users. For example, the law allowed a provider to serve only one patient. Dispensaries had opened, some of them serving hundreds of patients, on the bold assertion that they were serving one patient at a time. The state law was just vague enough to make this plausible.
No matter what the Obama people privately believe about marijuana, their priority is his reelection, which means not being branded as the Dope Smokers’ President.
The law had another hole that was dangerous for users. It allowed them to raise a medical defense at trial but said nothing about protection from arrest. There was a case about this: State v.Fry. In Colville, a small town in the state’s rural northeastern corner, the cops had come to the door of one Jason Fry, a man who had been kicked in the head three times by a horse. Fry had anxiety attacks and smoked marijuana to calm himself. The cops had heard about it, and at his doorstep they could smell it. Fry showed them his doctor’s letter giving him permission to use it, but they phoned a judge, got a warrant, searched his home, and busted him for having more plants than the state Department of Health allowed.
At the Washington Supreme Court, the question was whether the judge had probable cause to issue the warrant. Only one justice — libertarian Richard Sanders — sided with Fry, arguing that arrest protection was implicit in the measure passed by voters. The other eight sided with the state.
Under the regime of the past few years, in the liberal parts of Washington, particularly around Seattle, medical users have been mostly OK, and in rural counties they have had to take their chances.
The state senator from my Seattle district, one of the most liberal districts in the state, offered a bill to make sense of all this. It would have set up state licensing and regulation of growers, processors, and dispensers of medical marijuana, bringing them into the open. It also called for a voluntary state registry for medical users, to give them protection from arrest. The Democrat-controlled legislature passed the bill and sent to Democratic Gov. Christine Gregoire. Then the US attorneys in Seattle and Spokane, both of them long-time Democrats, wrote to the governor, warning that under federal law any state employee who licensed a marijuana business would be liable to federal prosecution.
Nowhere had the federal government prosecuted state employees for following state medical-marijuana law. It was possible, but it would be a direct federal-state confrontation. Was the Obama administration ready for that? The press noted that the governor, who previously was the state’s attorney general, might have a personal motive to comply with the Justice Department’s request: she is in her second term, is set to leave office at the end of 2012, and might like a law-related job in a second Obama administration. Whatever her motive, she cited the threat and vetoed the parts of the bill for licensing of marijuana suppliers.
After her veto, the US attorney in Spokane ordered all dispensaries closed, and joined with Spokane Police to raid the ones that defied him. As I write, he has not yet charged anyone with a crime. In liberal Seattle, where voters in 2003 had made simple possession of marijuana the lowest priority for police, the US attorney has so far stood aside while the Democratic city attorney and the Republican county prosecutor — both of them elected officials — work to keep the dispensaries open.
Parallel to the push for medical cannabis has been a drive for general legalization. It has begun in the early medical-marijuana states, and using the same tool as was used in those states: the voter initiative.
The voters of California, who were the first to approve medical marijuana by public vote, had another such vote in 2010. It was Proposition 19, a measure to allow people over 21 to cultivate, transport, and possess marijuana for personal use, and to allow cities to license commercial grows and dispensaries. Prop 19 garnered 46.5% of the vote. It failed, but not by much: a switch by fewer than 4% of the voters would have put it over the top.
What will state and local politicians do if their constituents vote for legalization and the feds oppose them?
In any complicated measure such as Prop 19, there are many arguments to convince people to vote no. There was the argument about protecting kids, though marijuana is available on the black market now and the measure wouldn’t have legalized it for them. Always there is the argument that the measure is flawed, whether the principle is right or not. In California, Mothers Against Drunk Driving opposed the measure on the ground that it didn’t define an illegal THC threshold for drivers. In California, several arguments were made by recipients of federal money. A school superintendent argued that legal marijuana would prevent the schools from meeting the requirements for federal grants. Business interests argued that they would lose federal contracts because they could no longer guarantee drug-free workplaces. Thus federal contracts and grants become weapons in political campaigns.
In any case it was close, and in the matter of social change, it is common to fail the first time. If you want to win, you try again.
Washington state was behind California, but not by much.
In 2010, two marijuana defense attorneys wrote a voter initiative that would have repealed all state marijuana law for adults over 18. The measure had no regulations in it. The organizers explained that if it had regulations in it, the federal government could challenge them in the courts under the doctrine of federal preemption, and have the regulations and the repeal thrown out. But a simple repeal would leave nothing for the feds to challenge.
One of the attorneys, Douglas Hiatt, said that was how New York and some other states had undermined liquor prohibition. It had worked, and the smart thing was to do it that way again.
The strategy made sense legally, but politically it didn’t work. The American Civil Liberties Union of Washington, which favors legalization, refused to back it because it included no regulations. The pro-legalization forces split. No prominent politicians stood up for the measure, the backers couldn’t raise any money to pay signature gatherers, and they fell short on signatures.
Also in 2010, a state representative from my district introduced a bill in the legislature to legalize and regulate marijuana. It died without a hearing.
In 2011, the two defense attorneys collected signatures for their initiative again, with the same result: they had too little money and fell short. My representative ran her bill again; this time it was endorsed by the state’s largest newspaper, the Seattle Times, which came out for full legalization. The bill failed once more, but it got a hearing, some respectable people testified in its favor, and they were covered in the press.
At the end of the legislative session, a well-connected group, including ACLU-WA, travel entrepreneur Rick Steves, and the former Republican US attorney in Seattle, John McKay, announced a legalization initiative aimed at the state ballot in November 2012. It has regulations in it, including a tight limit on THC in the bloodstream of drivers. But it is legalization for adults over 21 — and backing it are the names to attract money, and to assure wavering voters that it is OK to vote yes.
So it is in Washington state. According to NORML (National Organization for the Reform of Marijuana Laws), it appears that legalization measures will be on the ballot in 2012 in California and Colorado, and perhaps Oregon, Ohio, and Massachusetts.
These efforts are not welcomed by the Obama government. In the matter of civil liberties Obama has not led a liberal administration, and medical marijuana, or any marijuana, is not an issue he cares about. And no matter what the Obama people privately believe about marijuana, their priority is his reelection, which means not being branded as the Dope Smokers’ President.
So far, major politicians have mostly not supported legalization. California’s two Democratic senators, Dianne Feinstein and Barbara Boxer, opposed legalization, as did Republican Gov. Arnold Schwarzenegger and the Democrat who replaced him, Jerry Brown. Washington state’s two liberal Democratic senators, Maria Cantwell and Patty Murray, have given no support to legalization, nor has its Democratic governor. But what will politicians like this do if their people vote for legalization and the feds oppose them?
The smart ones will support their constituents. And that will start having an effect in Washington, D.C., where the endgame will play out.
This is now looking more and more likely. Voters in some state are going to pass a bill of legalization. And before that, the fight may come over state licensing of growers and dispensers of medical cannabis. Already the federal government is challenged by the dispensaries, and already it fights back, but cautiously and opportunistically. In the medical marijuana states it has been reluctant to haul in the proprietor of a storefront clinic, charge him with the federal crime of trafficking in forbidden drugs, and ask a jury to convict him and a judge to imprison him. If it is to win this battle, it will have to do that and make it the rule.
Generally the feds have acted where they have support from local politicians. But in some places, including where I live, they no longer have politicians’ support because they no longer have the public’s support. And where medical cannabis is legalized and used, support for prohibition erodes. It is gone among the young, and cannabis for people with cancer and back pain now erodes it among the old.
Expect fireworks ahead.