Washington and Colorado voters approve marijuana legalization

On Nov. 6, 2012, roughly 55 percent of voters in both Washington State and Colorado passed initiatives to legalize marijuana for social use. Washington's Initiative 502 is described here and Colorado's Amendment 64 here.



UPDATE (Nov 13, 2012): The Washington Post published my LTE urging the Justice Department to take a "wait and see" approach to the new laws.

UPDATE (Nov. 28, 2012): Washington’s measure (I-502) received 55.7 percent to 44.3 percent. Colorado’s measure (Amendment 64) passed 55.32% to 44.68%. These are overwhelming margins, and politicians know it! The combined votes in those two states resulted in more votes for marijuana than for Barack Obama! Oregon’s Measure 80 lost, but by a much smaller margin (46.89% to 53.11%) than pollsters predicted.

It will cease to be an offense in Washington to possess an ounce of marijuana or less after Dec. 6, 2012. Authorities in Washington will have a year to develop regulations for the production and sale of marijuana in licensed premises. The initiative does not provide for individual home cultivation, although the medical marijuana law does provide for patients to cultivate.
Here is a useful FAQ.

The Colorado law takes effect on the day that the vote is "proclaimed" by the Governor pursuant to the Colorado Constitution. Persons over 21 years of age may possess and use marijuana, and they may grow no more than 3 mature plants (6 plants total) and retain the harvest, but may not distribute it other than to give no more than one ounce to a person over 21 for no remuneration. By July 21, 2013, the state shall adopt regulations to govern the large scale cultivation, production and distribution of marijuana for remuneration. Local governments are authorized to write time, place, manner related regulations for marijuana distribution facilities.

Obviously there are a lot of local details to work out in each state.

On Nov. 7, 2012 the U.S. Department of Justice issued a statement that marijuana possession, cultivation and distribution still violated federal law and that law will be enforced. Clearly this is not the last word on the federal government's response.

Indeed, no one can predict exactly how the federal government will respond. While the legal route is probably clear, the politics are not. Legally, the state laws violate the Single Convention on Narcotics to which the U.S. is a signatory. Thus the U.S. has a treaty obligation to enjoin the states from carrying out their laws. However, there is no authority in the United Nations to force the U.S. to do this. While Article VI of the Constitution provides that treaties (like federal laws) are "supreme Law of the Land," we know that the Supreme Court has held Acts of Congress to be unconstitutional. The Supreme Court may be asked to weigh the powers reserved to the States under the 10th Amendment to the Constitution against the treaty obligations at some point. Of course, counsel in the Justice Department could conclude that the restrictions of the treaties intrude to far into our domestic law, and not defend the treaty against state claims, but that would be an unlikely outcome, both legally and politically.

I think it is probable that the federal government will bring suit to enjoin Washington and Colorado from carrying out the licensing provisions of their new laws, and I think it is likely that the lower federal courts will rule for the federal government. If legal cultivation and sales get underway in CO and WA, they will supply distributors throughout the nation because their costs are likely to undercut illegal growers elsewhere, and the price of marijuana across the nation will go down, perhaps quite dramatically. This is the prediction of Jonathan Caulkin, Mark Kleiman and Beu Kilmer, three of the co-authors of the excellent book, Marijuana Legalization: What Everyone Needs to Know, (Oxford Univ. Press, 2012).

Is there likely to be an increase in illegal marijuana cultivation in these states for distribution elsewhere in the U.S. by those hoping to escape state prosecution and anticipating that federal prosecution can't meet the extent of the law breaking?

Will either of these states start collecting sales tax, excise tax and other revenues? Not if the feds can block their programs, which gives the state authorities a powerful incentive to resist the federal suits.

A very important question is how the rest of the world will react. Mexico in particular may quickly conclude that they could reduce if not eliminate the bloody conflict among their criminal organizations and against the society if they were no longer being fueled to a significant degree by illegal marijuana sales, according to a Christian Science Monitor report. Alesandro Madrazo, a Mexico City law professor, predicted at a conference at The Brookings Institution on Oct. 3, 2012, that Mexico would fairly quickly legalize  marijuana in response to U.S. marijuana legalization.

UPDATE:

The Washington Post reports that  Luis Videgaray, the head of transition for the incoming President of Mexico, Enrique Pena Nieto, said “These important modifications change somewhat the rules of the game in the relationship with the United States.”  “I think that we have to carry out a review of our joint policies in regards to drug trafficking and security in general.

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