With Marijuana Legalized, Colorado Enters Into Drug-Policy Uncharted Territory

Marijuana's Legal In Colorado -- Now What?

America’s war on drugs got a lot more interesting Tuesday night when Colorado and Washington voted to legalize marijuana. Legalization advocates were quick to call the two measures “the beginning of the end” of marijuana prohibition in the United States.

“The beginning of the end has begun,” Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML), wrote at his blog.

Yesterday’s elections have forever changed the playing field regarding cannabis prohibition laws in America (and probably in large parts of the world too),” he went on.

Reached by phone, St. Pierre said the entire landscape of drug policy shifted overnight thanks to voters in Colorado and Washington.

“The drug reform movement has moved from agitation to the legalization epoch,” he said Wednesday.

St. Pierre noted that while his organization has been fighting prohibition on numerous fronts for 40 years, the power to overturn decades of law ultimately came down to a vote of the people.

As for what happens next, he said he expects the Department of Justice to throw its weight around a little before finally standing down.

“If past is prologue, the feds will initially try to interfere with the will of the voters. They will try to find some way to interfere, maybe go to court to seek a permanent injunction,” St. Pierre said.

He noted, though, that President Obama “tried to find some middle ground” on marijuana during his first term. He also said that, in previous elections to legalize pot, the DOJ made public statements prior to Election Day, but didn’t this time. “They have used the bully pulpit to sully public opinion in the past, but they didn’t do that this time.”

Ultimately, St. Pierre said he expects the feds to be OK with Colorado eliminating all penalties for personal possession and personal growing of marijuana, but he also expects they will try to stop the state from establishing a system of legal retail stores and legal mass grow operations.

The feds aren’t yet talking, except in a very cursory fashion.

“The Department of Justice’s enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiative and have no additional comment at this time,” said Jeff Dorschner, spokesman for the U.S. Attorney’s Office, in a prepared statement emailed to The Colorado Independent.

Paul Roach, regional spokesperson for the DEA, told the Independent prior to the election that the DEA does not–and will not–focus on individual users. He said the DEA will continue to “go after significant drug trafficking organizations.” Just as that sometimes includes people and businesses involved in medical marijuana, he said it could also include businesses licensed to grow or sell under Amendment 64.

Norm Stamper, former Seattle police chief, had this to say, in a statement posted on the Law Enforcement Against Prohibition website: “I cannot tell you how happy I am that after forty years of the racist, destructive exercise in futility that is the war on drugs, my home state of Washington has now put us on a different path. There are people who have lost today: drug cartels, street gangs, those who profit from keeping American incarceration rates the highest in the world. For the rest of us, however, this is a win. It’s a win for taxpayers. It’s a win for police. It’s a win for all those who care about social justice. This is indeed a wonderful day.”

In Colorado, the constitutional amendment gives the state a little more than a year to figure out how to regulate retail stores and wholesale growing/distribution operations.

Both Governor John Hickenlooper and Attorney General John Suthers vocally opposed Amendment 64, but both have said they will respect the will of voters and will work to see legalization implemented.

Suthers released this statement:

“Despite my strongly held belief that the ‘legalization’ of marijuana on a state level is very bad public policy, voters can be assured that the Attorney General’s Office will move forward in assisting the pertinent executive branch agencies to implement this new provision in the Colorado Constitution.

Coloradans should be cognizant of two caveats, however. First the ability of the federal government to criminally sanction possession, use and distribution of marijuana, even if grown, distributed and used in a single state, was recognized by the U.S. Supreme Court in Gonzales v. Raich (545 US.1,2005). Therefore, absent action by Congress, Coloradans should not expect to see successful legal challenges to the ability of the federal government to enforce its marijuana laws in Colorado. Accordingly, I call upon the United States Department of Justice to make known its intentions regarding prosecution of activities sanctioned by Amendment 64 (particularly large wholesale grow operations) as soon as possible in order to assist state regulators and the citizens of Colorado in making decisions about the implementation of Amendment 64.

Secondly, the proponents of Amendment 64 told voters that it imposed a surtax of up to 15 percent on marijuana sale that would result in up to $40 million each year going to K-12 schools in the state. In fact Amendment 64 did not comply with required language under the Taxpayers Bill of Rights and no such tax will be imposed. Instead it will be up to the Colorado Legislature whether to refer such a tax to the voters and up to the voters of Colorado whether to actually impose the tax. Therefore, such revenue is speculative and will not be forthcoming when Amendment 64 begins to be implemented.”

Supporters of Amendment 64 say they look forward to working with Suthers to implement the law, but Brian Vicente, an attorney who was one of the leaders of the campaign, took exception to the tone of some of Suthers’ statement.

“What John Suthers needs to remember is who he works for, which is the people of Colorado, who approved this measure by a wide margin. John Suthers needs to work to implement this law and not to fight it.”

Vicente and Mason Tvert, co-directors of the legalization campaign, said people who minimize the tax benefits of Amendment 64 are delusional.

“The legislature will undoubtedly come on board with the tax component. John Suthers just needs to get out of the way,” Vicente said.

He said it is likely that the legislature will pass a measure to place a tax before the people in next November’s election, which could mean that the tax is approved before the first legal retail sale takes place, probably in early 2014.

“We don’t see any reason why the Colorado legislature would ignore the will of the voters and not put this excise tax in front of the voters to fund public school construction,” Tvert said by email.

The governor had this to say:

“The voters have spoken and we have to respect their will. This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug so don’t break out the Cheetos or gold fish too quickly.”

As to the idea that the federal government will fight the will of voters in Colorado and Washington, Vicente acknowledges that the feds may try to stop the retail storefront model that has been approved by voters, but notes that the feds have raised only minimal objections to the same model in place for medical marijuana, which in Colorado also includes storefronts and commercial grow operations.

Vicente says the feds will absolutely stand aside on the parts of the law that say individual adults in Colorado can possess up to one ounce of marijuana and may also grow up to six plants at a time and may possess all of the product from those plants.

“That is the piece that 100 percent cannot be stopped. Colorado has complete control of its criminal laws. The Colorado constitution now says you can possess and grow marijuana for your own use and the federal government can’t do anything about that.”

Vicente told the Independent that even if the feds decided to come into Colorado and Washington with a scorched earth policy of stopping state-legalized marijuana operations, it may be too late. He says the whole drug war has changed overnight and the feds need to realize that outright prohibition is a thing of the past.

“It would certainly be a travesty if the Obama administration used its power to impose marijuana prohibition upon a state whose people have declared, through the democratic process, that they want it to end,” Vicente said in a prepared statement issued the night of the election.

“It is now more obvious than ever that marijuana prohibition is a failed policy, and the voters in Colorado and Washington have sent a message to their elected leaders and the nation that they have had enough,” said Rob Kampia, executive director of the Marijuana Policy Project.

“It is costly, harmful, and dangerously misguided to continue arresting adults for using something that is safer than alcohol, particularly the seriously ill who could benefit from using marijuana. A majority of Americans are sick of this nightmare and support treating marijuana in a rational manner. Unfortunately, most lawmakers continue to ignore this fact and turn a blind eye to the harms caused by prohibition. The residents of Colorado and Washington have taken the matter into their own hands and done something about it today,” he said in a press release issued Nov. 6. “They should be congratulated for taking the first step toward sensible laws. The end of marijuana prohibition is at hand.

“Tonight marks the end of this campaign, but only the beginning of a process through which Colorado will show the world what a properly regulated marijuana system looks like. It will serve as a model for other states and, in fact, the rest of the world. It is impossible to overstate the significance of this victory,” Kampia said.

Colorado’s legislature has the option of creating the rules and regulations that will govern the sale of marijuana. The legislature could opt not to address the issue, in which case the Colorado Department of Revenue would be tasked with setting up the regulatory framework. In either case, the state is required to license marijuana businesses by 2014.

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