Washington state voters want to legalize marijuana. And this November, they'll get the chance to vote to do so with Initiative 502. But while the legalization of cannabis can and must be passed in Washington state, this initiative, even if passed, likely won't do it.
The law, if passed, will legalize marijuana to anyone over 21 years of age and put the state in charge of licensing and regulating it. The law would accomplish this by removing most state-level prohibitions against cannabis and by creating a tax structure around the pot industry.
In the initiative's own words:
This measure would remove state-law prohibitions against producing, processing, and selling marijuana, subject to licensing and regulation by the liquor control board; allow limited possession of marijuana by persons aged twenty-one and over; and impose 25% excise taxes on wholesale and retail sales of marijuana, earmarking revenue for purposes that include substance-abuse prevention, research, education, and healthcare. Laws prohibiting driving under the influence would be amended to include maximum thresholds for THC blood concentration.
On the surface, I-502 is exactly what Washingtonians who are interested in personal liberty, increased revenues and better health care should vote for. But upon closer look, the initiative also presents some rather unavoidable pitfalls that stand a good chance of making the effort all for naught.
The main problem with I-502 is that it does nothing to counter the federal government's ability to say "screw your law, pot's illegal, end of story." The law would simply rewrite how Washington deals with marijuana, removing certain penalties, creating new laws around it and treating it as just another restricted commodity.
Unfortunately, that's what states including Washington are already doing with regard to medical marijuana, and what's happening in result are increased federal raids and crackdowns on providers and patients far and wide.
The sad truth is that writing more laws that further decriminalize (in this case, legalize) marijuana will likely only lead to an even heavier hand by Uncle Sam in saying that those laws mean squat. To put it bluntly, any state that tries to regulate a federally-banned substance will face a swift preemption and injunction by the Department of Justice.
So how does one legalize a substance that the federal government doesn't want legalized?
The answer is to follow the path that's already laid out--that is, to do what the folks who ended alcohol prohibition did when individual states began repealing all penalties against alcohol. Without a specific law legalizing booze, the feds had nothing to preempt, and therefore had to rely solely on federal agents to enforce the increasingly-unpopular prohibition laws.
This method eventually ended with the 21st Amendment to the Constitution, and today we drink ourselves silly.
The same method can be used with marijuana. In fact, an effort (albeit, a thus far wildly-unsuccessful one) to repeal Washington state cannabis prohibitions is going on in tandem with the 502 legalize-and-regulate approach.
This effort, pushed perhaps most publicly by longtime pot activist and attorney Doug Hiatt and the folks at Sensible Washington, is still trying to gain support in Washington, but is behind by leaps and bounds to the well-moneyed I-502 plan.
Hiatt recently told me that he still thinks his group will have a repeal option on the November ballot. I certainly hope so.
The 502 backers will argue that passing their bill is necessary regardless of whether its immediately killed by the feds or not. They'll say that forcing the federal government to stop an individual state from carrying out the will of its voters will be too poor a public spectacle to bear and that, at the very least, the effort will make future attempts to legalize that much easier.
This is true. But only to an extent and not quite in the way the 502 folks mean.
The I-502 law passing is indeed better than nothing passing at all (a statement that Hiatt and other repeal backers will argue strongly against). But the only major reason it should pass is to prove how quickly it's preempted and in turn to steel voters to do what's necessary the next go round, and move to repeal.
The federal government currently has no qualms with ignoring state marijuana laws--something that dispensaries all over the state can attest to. And if the states go as far as to legalize and regulate pot, one need not wait until the ink is dry on the law before an Assistant U.S. Attorney General files a federal injunction to stop it.
At that point a lot of money will have been spent and a lot of time used up. But if it finally leads to a proper repeal bill being voted on in the next election, it will have been worth it.
Of course, Washington has an opportunity to repeal cannabis prohibition now. Voters simply have to realize it.