Wash. Effort To Legalize Pot Faces Legal Pitfalls

Nov 20, 2011

An effort to decrim­i­nal­ize and tax recre­ational mar­i­juana sales for adults in Wash­ing­ton state has won some high-profile endorse­ments – includ­ing from two for­mer Seat­tle U.S. attor­neys and the for­mer head of the FBI here – and its spon­sors are well on their way to col­lect­ing enough sig­na­tures to place the mea­sure before the Leg­is­la­ture. Sup­port­ers say it would boost fund­ing for edu­ca­tion and pub­lic health, and polls show a slight major­ity of Wash­ing­ton vot­ers approve. But Ini­tia­tive 502 faces seri­ous legal pit­falls. Not only could the fed­eral agents raid and shut down the state-licensed pot grows and retail stores, they could ask a judge to sim­ply throw out the entire sys­tem on the grounds that it con­flicts with fed­eral law. And that new tax rev­enue, con­ser­v­a­tively esti­mated at $215 mil­lion a year? The feds can almost cer­tainly just take it, as pro­ceeds of drug deals that remain ille­gal under fed­eral law. Whether the fed­eral gov­ern­ment would actu­ally take such steps is anybody’s guess – and it’s what makes the effort, which is being closely watched by legal­iza­tion advo­cates around the coun­try, a gam­ble. “This is an evolv­ing area of the law,” says Ali­son Hol­comb, the initiative’s cam­paign direc­tor. “We’d be fool­hardy to say we think we know what’s going to hap­pen.” Ini­tia­tive 502 would cre­ate a sys­tem of state-licensed grow­ers, proces­sors and stores, and would impose a 25 per­cent excise tax at each stage. Adults 21 and over could buy up to an ounce of dried mar­i­juana; one pound of marijuana-infused prod­uct in solid form, such as brown­ies; or 72 ounces of marijuana-infused liq­uids. It would be ille­gal to drive with more than 5 nanograms of THC, the active ingre­di­ent of cannabis, per mil­li­liter of blood. Holcomb’s group, New Approach Wash­ing­ton, is push­ing the mea­sure at a time of seri­ous upheaval in the mar­i­juana world, with the Obama admin­is­tra­tion pres­sur­ing states and cities that attempt to reg­u­late the med­ical mar­i­juana indus­try. Fed­eral pros­e­cu­tors in Cal­i­for­nia have announced a con­certed effort to warn prop­erty own­ers that they could face sanc­tions if they rent to mar­i­juana grows or dis­pen­saries, and the DOJ has made clear that pros­e­cut­ing com­mer­cial mar­i­juana busi­nesses remains a pri­or­ity. Rhode Island Gov. Lin­coln Chafee announced last month that he was sus­pend­ing a sys­tem to license non­profit “com­pas­sion cen­ters” where peo­ple could get med­ical pot, out of con­cerns it would vio­late fed­eral law. And the raids on 19 med­ical mar­i­juana dis­pen­saries by Drug Enforce­ment Admin­is­tra­tion agents and sher­iffs’ deputies in West­ern Wash­ing­ton last week served as a wake-up call about how much the feds will tol­er­ate here. At the same time, Wash­ing­ton isn’t alone in con­sid­er­ing legal­iz­ing the fun use of mar­i­juana. Col­orado will vote next year if a sim­i­lar mea­sure there makes the bal­lot. Sup­port­ers say that treat­ing mar­i­juana use as a crime has failed, and now is the time to decrim­i­nal­ize, tax and reg­u­late the drug. Whether states can get away with enact­ing such sys­tems – whether they can reg­u­late a sub­stance that is ille­gal under fed­eral law – isn’t clear. No one dis­putes that fed­eral author­i­ties have the power to enforce fed­eral law, and thus could shut down state-licensed mar­i­juana gar­dens or stores at whim, arrest­ing the pro­pri­etors and pros­e­cut­ing them in fed­eral court. Nor do many dis­pute that states have the power to decrim­i­nal­ize mar­i­juana under their own laws. That’s why states can “legal­ize” med­ical mar­i­juana – they sim­ply decide to stop pros­e­cut­ing peo­ple for cer­tain offenses. Fed­eral author­i­ties can’t make state offi­cials enforce fed­eral law, and there aren’t nearly enough DEA agents or assis­tant U.S. attor­neys to keep up with all the mar­i­juana gar­dens, dis­pen­saries or patients. The stick­ier issue is whether states can go beyond sim­ple decrim­i­nal­iza­tion by set­ting up licens­ing or other reg­u­la­tory schemes. In such cases, rather than doing noth­ing in the face of fed­eral mar­i­juana pro­hi­bi­tion – i.e., not pros­e­cut­ing peo­ple under state law – a state would be doing some­thing, and that some­thing could arguably con­flict with fed­eral law. When state and fed­eral laws con­flict, the fed­eral law wins out; it “pre­empts” the state law. “Can the feds bring a chal­lenge on pre­emp­tion grounds? Yes. Will they pre­vail? We don’t know,” Hol­comb says. She says I-502 is drafted as strongly as pos­si­ble to sur­vive such a chal­lenge. The Con­trolled Sub­stances Act con­tains a pro­vi­sion say­ing that it will only pre­empt state laws that are in “pos­i­tive con­flict” with it – in other words, if the state law forces some­one to vio­late fed­eral law. I-502 doesn’t do that, Hol­comb says, because a cit­i­zen could com­ply with both laws by sim­ply not buy­ing, grow­ing or sell­ing mar­i­juana. The licens­ing scheme sim­ply helps state police deter­mine who is com­ply­ing with state law, she said. Karl Man­heim, a con­sti­tu­tional law pro­fes­sor at Loy­ola Law School in Los Ange­les, said he tended to agree with that analy­sis, and two recent opin­ions from state appeals courts in Cal­i­for­nia took the view that states can take some reg­u­la­tory steps with­out run­ning afoul of the fed­eral Con­trolled Sub­stances Act. But another Cal­i­for­nia appeals court rul­ing last month took the oppo­site view. It unan­i­mously said that in addi­tion to con­sid­er­ing whether a state law forces some­one to vio­late fed­eral law, courts must also look at whether the state law “frus­trates the pur­pose” of fed­eral laws. The court noted that there is some ques­tion as to whether state or local offi­cials could be liable for aid­ing and abet­ting fed­eral crimes. The court threw out a dis­pen­sary licens­ing scheme in Long Beach on the grounds that it autho­rized peo­ple to engage in con­duct at odds with the fed­eral law, and thus frus­trated the pur­pose of the fed­eral law. The Ore­gon Supreme Court came to the same con­clu­sion last year in deter­min­ing that that state’s med­ical mar­i­juana law could be pre­empted by fed­eral law. Under such a ratio­nale, licens­ing schemes that already exist for med­ical mar­i­juana dis­tri­b­u­tion – such as in Col­orado and New Mex­ico – would also be sub­ject to fed­eral pre­emp­tion. But the DOJ has never made any such argu­ments. Some spec­u­late it’s because the dis­tri­b­u­tion was for med­ical rea­sons, and trump­ing such laws would be more unpop­u­lar than trump­ing a scheme for dis­trib­ut­ing recre­ational mar­i­juana. In an inter­view this week, Seat­tle U.S. Attor­ney Jenny Durkan declined to dis­cuss whether she believed the Jus­tice Depart­ment could pre­empt I-502. “Every lawyer that I have talked to, includ­ing those who sup­port the ini­tia­tive, think that it will be pre­empted by fed­eral law,” Durkan said. Dou­glas Hiatt, a Seat­tle med­ical mar­i­juana attor­ney and advo­cate of legal­iza­tion, agrees. He argues that it requires those who would apply for licenses to incrim­i­nate them­selves in vio­la­tion of the Fifth Amend­ment, that the state would be laun­der­ing money when it taxes mar­i­juana trans­fers, and that the intox­i­cated dri­ving limit is so strict that it would keep med­ical mar­i­juana patients from dri­ving at all. If the parts of I-502 he con­sid­ers uncon­sti­tu­tional were struck down, the result could be that Wash­ing­ton would wind up with pos­ses­sion of up to an ounce of mar­i­juana being decrim­i­nal­ized, with no way to legally buy it, he said. Hol­comb dis­putes his crit­i­cism, but con­cedes the Jus­tice Depart­ment almost cer­tainly could seize any taxes col­lected through a “for­fei­ture” action – one that requires the dis­gorge­ment of pro­ceeds of ille­gal activ­ity. Ulti­mately, both Hol­comb and Hiatt pro­pose legal­iza­tion approaches that might be pre­empted by fed­eral law. Hiatt’s group, Sen­si­ble Wash­ing­ton, wants to first repeal all state crim­i­nal and civil penal­ties for mar­i­juana in any amount. Hav­ing done that, Hiatt argues, mar­i­juana would be totally legal under state law – and the Leg­is­la­ture could then pass reg­u­la­tions gov­ern­ing pot sales. Faced with the choice between no state pot laws and what­ever reg­u­la­tion scheme the Leg­is­la­ture comes up with, the DOJ would be less likely to seek to inval­i­date the Legislature’s scheme, Hiatt argues. That’s the strat­egy states used in knock­ing down the fed­eral pro­hi­bi­tion of alco­hol in the 1920s and ‘30s. But Sen­si­ble Washington’s ini­tia­tive has twice failed to qual­ify for the bal­lot. Hol­comb hopes the DOJ will not try to pre­empt I-502 – that the feds will ulti­mately con­sider its licens­ing and tax­ing scheme a lesser evil than the “wild West” of full decrim­i­nal­iza­tion. Source: Asso­ci­ated Press (Wire) Author: Gene John­son, The Asso­ci­ated Press Pub­lished: Novem­ber 20, 2011 Copy­right: 2011 The Asso­ci­ated Press

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Wash. Effort To Legal­ize Pot Faces Legal Pitfalls

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