Obama’s Pot Problem

Dec 7, 2012

When vot­ers in Col­orado and Wash­ing­ton state legal­ized recre­ational mar­i­juana in Novem­ber, they thought they were declar­ing a cease-fire in the War on Drugs. Thanks to bal­lot ini­tia­tives that passed by wide mar­gins on Elec­tion Day, adults 21 or older in both states can now legally pos­sess up to an ounce of mar­i­juana. The new laws also com­pel Col­orado and Wash­ing­ton to license pri­vate busi­nesses to cul­ti­vate and sell pot, and to levy taxes on the pro­ceeds. Together, the two states expect to reap some $600 mil­lion annu­ally in mar­i­juana rev­enues for schools, roads and other projects. The only losers, in fact, will be the Mex­i­can drug lords, who cur­rently sup­ply as much as two-thirds of America’s pot. Drug reform­ers can scarcely believe their land­slide vic­to­ries at the polls. “Peo­ple expected this day would come, but most didn’t expect it to come this soon,” says Norm Stam­per, a for­mer Seat­tle police chief who cam­paigned for legal­iza­tion. “This is the begin­ning of the end of pro­hi­bi­tion.” But the war over pot may be far from over. Legal­iza­tion has set Col­orado and Wash­ing­ton on a col­li­sion course with the Obama admin­is­tra­tion, which has shown no sign of back­ing down on its full-scale assault on pot grow­ers and dis­trib­u­tors. Although the pres­i­dent pledged to go easy on med­ical mar­i­juana – now legal in 18 states – he has actu­ally launched more raids on state-sanctioned pot dis­pen­saries than George W. Bush, and has threat­ened to pros­e­cute state offi­cials who over­see med­ical mar­i­juana as if they were drug lords. And while the admin­is­tra­tion has yet to issue a defin­i­tive response to the two new laws, the Jus­tice Depart­ment was quick to sig­nal that it has no plans to heed the will of vot­ers. “Enforce­ment of the Con­trolled Sub­stances Act,” the depart­ment announced in Novem­ber, “remains unchanged.” A big rea­son for the get-tough stance, say White House insid­ers, is that fed­eral agen­cies like the Drug Enforce­ment Admin­is­tra­tion are staffed with hard-liners who have built their careers on going after pot. Michele Leon­hart, a holdover from the Bush admin­is­tra­tion whom Obama has appointed to head the DEA, con­tin­ues to main­tain that pot is as dan­ger­ous as heroin – a posi­tion unsup­ported by either sci­ence or expe­ri­ence. When pressed on the point at a con­gres­sional hear­ing, Leon­hart refused to con­cede any dis­tinc­tion between the two sub­stances, lamely insist­ing that “all ille­gal drugs are bad.” “There are not many friends to legal­iza­tion in this admin­is­tra­tion,” says Kevin Sabet, direc­tor of the Drug Pol­icy Insti­tute at the Uni­ver­sity of Florida who served the White House as a top adviser on mar­i­juana pol­icy. In fact, the politi­cian who coined the term “drug czar” – Joe Biden – con­tin­ues to guide the administration’s hard-line drug pol­icy. “The vice pres­i­dent has a spe­cial inter­est in this issue,” Sabet says. “As long as he is vice pres­i­dent, we’re very far off from legal­iza­tion being a real­ity.” There’s no ques­tion that the votes in Col­orado and Wash­ing­ton rep­re­sent a his­toric shift in the War on Drugs. “This is a water­shed moment,” says Ethan Nadel­mann, exec­u­tive direc­tor of the Drug Pol­icy Alliance. “Peo­ple are stand­ing up and say­ing that the drug war has gone too far.” And drug reform­ers achieved the land­mark vic­tory with a cre­ative new mar­ket­ing blitz – one that sold legal­iza­tion not to ston­ers, but to soc­cer moms. The man behind Colorado’s legal­iza­tion cam­paign was Mason Tvert, a Den­ver activist who was rad­i­cal­ized against the drug war by two expe­ri­ences as a teenager. First, in high school, a bout of binge drink­ing landed him in the hos­pi­tal. Then, as a col­lege fresh­man, he made what he believed was a health­ier choice to smoke pot – only to get sub­poe­naed by a grand jury and grilled by cam­pus police about his drug use. “It was ridicu­lous,” Tvert recalls, “to be spend­ing these law-enforcement resources wor­ry­ing about whether a col­lege stu­dent might or might not be using pot in his dorm room on the week­end.” In 2005, at age 22, Tvert founded Safer Alter­na­tive for Enjoy­able Recre­ation (SAFER) to prompt a pub­lic con­ver­sa­tion about the rel­a­tive dan­gers of pot and booze. “We’re pun­ish­ing adults for mak­ing the ratio­nal, safer deci­sion to use mar­i­juana rather than alco­hol, if that’s what they pre­fer,” says Tvert. “We’re dri­ving peo­ple to drink.” That same year, fueled by sup­port on col­lege cam­puses, SAFER launched a bal­lot ini­tia­tive to make Den­ver the world’s first city to remove all crim­i­nal penal­ties for pos­ses­sion of mar­i­juana by adults. Tvert cheek­ily branded then-mayor and now Col­orado gov­er­nor John Hick­en­looper a “drug dealer” for own­ing a brew pub. The shoe­string cam­paign, Tvert says, was only intended to raise aware­ness. “We just hap­pened to win.” This year, Tvert and other drug reform­ers drew an even more explicit link between the two recre­ational drugs, nam­ing their bal­lot ini­tia­tive the “Reg­u­late Mar­i­juana Like Alco­hol Act of 2012.” Instead of sim­ply urg­ing peo­ple to vote against pro­hi­bi­tion, the mea­sure gave Col­oradans a con­crete rea­son to vote for legal­iza­tion: Tax­ing pot would pro­vide more money for schools, while free­ing up cops from sense­less pot busts would enable them to go after real crim­i­nals. “The pub­lic does not like mar­i­juana,” explains Brian Vicente, a Den­ver attor­ney who co-wrote the law. “What they like is com­mu­nity safety, tax rev­enue and bet­ter use of law enforce­ment.” Equally impor­tant to win­ning over main­stream vot­ers was the plan to treat pot like alco­hol. While the feds con­tinue to view mar­i­juana as con­tra­band to be fer­reted out by drug dogs and SWAT teams, Col­orado and Wash­ing­ton will now entrust pot to the same reg­u­la­tors who keep tabs on Jame­son and Jäger­meis­ter. The new laws charge the Wash­ing­ton State Liquor Con­trol Board and the Col­orado Depart­ment of Rev­enue – which already over­sees med­ical mar­i­juana – with issu­ing licenses for recre­ational mar­i­juana to be sold in pri­vate, stand-alone stores. The Col­orado law also gives local com­mu­ni­ties the right to pro­hibit com­mer­cial pot sales, much like a few “dry” coun­ties across the coun­try still ban liquor sales. “These will be specif­i­cally licensed mar­i­juana retail stores,” says Tvert. “It’s not going to be pop­ping up at Wal­mart. This is not going to force a mar­i­juana store into a com­mu­nity that does not want it.” The legal­iza­tion cam­paign in Col­orado was a grass­roots, low-budget affair that tri­umphed in the face of strong oppo­si­tion from Gov. Hick­en­looper and the Den­ver Cham­ber of Com­merce. The reform effort in Wash­ing­ton, by con­trast, received more than half its $6.2 mil­lion in fund­ing from bil­lion­aire drug reform­ers Peter Lewis and George Soros – and enjoyed main­stream sup­port. The pub­lic face for legal­iza­tion was Rick Steves, the avun­cu­lar PBS travel jour­nal­ist – and ded­i­cated pot­head – who chipped in $450,000 to the cause. In Seat­tle, the mayor, city attor­ney and every mem­ber of the city coun­cil sup­ported the mea­sure. Unlike past efforts to turn back pot pro­hi­bi­tion at the bal­lot box, which saw pub­lic sup­port crater at the 11th hour, sup­port for the mea­sures in Col­orado and Wash­ing­ton actu­ally increased through Elec­tion Day: Both laws passed by at least 10 points. In Col­orado, mar­i­juana proved more pop­u­lar than the pres­i­dent, trump­ing Obama’s win­ning tally by more than 50,000 votes. Regard­less of how the fed­eral gov­ern­ment responds to the ini­tia­tives, many of their great­est ben­e­fits have already taken hold. In Novem­ber, more than 200 Wash­ing­ton res­i­dents who had been charged with pot pos­ses­sion saw their cases dropped even before the new law went into effect. “There is no point in con­tin­u­ing to seek crim­i­nal penal­ties for con­duct that will be legal next month,” said Seat­tle pros­e­cu­tor Dan Sat­ter­berg. Local police are now free to focus their resources on crimes of vio­lence, and cops can no longer use the pre­text of smelling dope as a license for unwar­ranted searches. “That gets us into so many cars and pock­ets and homes – ille­gally, inap­pro­pri­ately,” says Neill Franklin, a retired nar­cotics offi­cer who now directs Law Enforce­ment Against Pro­hi­bi­tion. “That ends in Col­orado and Wash­ing­ton – it ends.” A hilar­i­ous FAQ called “Mar­i­jwhat­now?” – issued by the Seat­tle police depart­ment – under­scores the offi­cial shift in tac­tics: Q: What hap­pens if I get pulled over and I’m sober, but an offi­cer or his K-9 buddy smells the ounce of Super Skunk I’ve got in my trunk? A: Each case stands on its own, but the smell of pot alone will not be rea­son to search a vehi­cle. Despite the imme­di­ate ben­e­fits of the new laws, the ques­tion remains: What will the fed­eral gov­ern­ment do in response? Advo­cates of legal­iza­tion are hop­ing the Obama admin­is­tra­tion will rec­og­nize that it’s on the wrong side of his­tory. “Everybody’s pre­dict­ing there’s going to be a back­lash, and that’s a good bet,” con­cedes Nadel­mann. “But there’s some rea­son to be opti­mistic that the feds won’t jump – at least not right away.” The admin­is­tra­tion, he points out, has yet to make its inten­tions clear – and that, by itself, is a sign of progress. In 2010, Attor­ney Gen­eral Eric Holder strongly denounced California’s bid to reg­u­late and tax mar­i­juana before vot­ers even had a chance to weigh in at the polls. This year, by con­trast, the admin­is­tra­tion said noth­ing about the legal­iza­tion bids in Col­orado and Wash­ing­ton – even after nine for­mer heads of the DEA issued a pub­lic let­ter decry­ing the administration’s silence as “a tacit accep­tance of these dan­ger­ous ini­tia­tives.” In addi­tion, the pro­vi­sions that directly flout the fed­eral government’s author­ity to reg­u­late mar­i­juana don’t take effect right away – leav­ing time for state and fed­eral author­i­ties to nego­ti­ate a truce. In Col­orado, the state isn’t required to begin reg­u­lat­ing and tax­ing pot until next July, while offi­cials in Wash­ing­ton have until next Decem­ber to unveil a reg­u­la­tory plan. “There’s no inher­ent need for a knee-jerk fed­eral response,” says Nadel­mann. Most impor­tant, the gov­er­nors of both Col­orado and Wash­ing­ton have vowed to respect the will of the vot­ers – even though they per­son­ally opposed the new laws. Gov. Hick­en­looper pledged that “we intend to fol­low through” with reg­u­lat­ing and tax­ing mar­i­juana. But he also sounded a note of cau­tion to pot­heads. “Fed­eral law still says mar­i­juana is an ille­gal drug,” he warned, “so don’t break out the Chee­tos or Gold­fish too quickly.” If Obama were com­mit­ted to drug reform – or sim­ply to states’ rights – he could imme­di­ately end DEA raids on those who grow and sell pot accord­ing to state law, and imme­di­ately order the Jus­tice Depart­ment to make enforce­ment of fed­eral mar­i­juana laws the low­est pri­or­ity of U.S. attor­neys in states that choose to tax and reg­u­late pot. He could also cham­pion a bipar­ti­san bill intro­duced by Rep. Diana DeGette, a Demo­c­rat from Col­orado, that would give state mar­i­juana reg­u­la­tion prece­dence over fed­eral law – an approach that even anti-marijuana hard-liners have endorsed. As George W. Bush’s for­mer U.S. attor­ney for Col­orado wrote in a post-election op-ed in the Den­ver Post: “Let­ting states ‘opt out’ of the Con­trolled Sub­stances Act’s pro­hi­bi­tion against mar­i­juana ought to be seri­ously con­sid­ered.” When it comes to pot, the fed­eral gov­ern­ment is both impo­tent and omnipo­tent. What the feds can­not do is force either Col­orado or Wash­ing­ton to impose crim­i­nal sanc­tions on pot pos­ses­sion. “They can­not say to states: You must keep arrest­ing or throw­ing peo­ple in jail for sim­ple use,” says Sabet, the for­mer White House adviser. “And they can­not com­pel the states to impose penal­ties on use.” Indi­vid­ual pot smok­ers in Col­orado and Wash­ing­ton will tech­ni­cally be in vio­la­tion of fed­eral law, but as a prac­ti­cal mat­ter the DEA only has the resources to pur­sue high-level traf­fick­ers. Where the fed­eral gov­ern­ment has great power to act is in shut­ting down state tax­a­tion and reg­u­la­tion of mar­i­juana. Pri­vately, both drug reform­ers and drug war­riors believe the Obama admin­is­tra­tion is likely to take Col­orado and Wash­ing­ton to court to keep them out of the pot busi­ness. “I would put money on it,” says Sabet. Unfor­tu­nately for drug reform­ers, the admin­is­tra­tion appears to have an open-and-shut case: Fed­eral law trumps state law when the two con­tra­dict. What’s more, the Supreme Court has spo­ken on mar­i­juana law: In the 2005 case Gon­za­les v. Raich con­test­ing med­ical mar­i­juana in Cal­i­for­nia, the court ruled that the fed­eral gov­ern­ment can reg­u­late even tiny quan­ti­ties of pot – includ­ing those grown and sold purely within state bor­ders – because the drug is ulti­mately con­nected to inter­state com­merce. If the courts side with the admin­is­tra­tion, a judge could issue an imme­di­ate injunc­tion block­ing Wash­ing­ton and Col­orado from reg­u­lat­ing or tax­ing the grow­ing and sell­ing of pot – actions that would be con­sid­ered traf­fick­ing under the Con­trolled Sub­stances Act. The feds could also threaten to pros­e­cute state employ­ees tasked with imple­ment­ing the new reg­u­la­tions – a hard­ball tac­tic the admin­is­tra­tion deployed last year to shut down state reg­u­la­tion of med­ical mar­i­juana in Wash­ing­ton and Rhode Island. Such dra­con­ian mea­sures would do noth­ing to curb mar­i­juana use – par­tic­u­larly in Col­orado, where the new law empow­ers cit­i­zens to grow up to six plants and share up to an ounce of their weed with other adults. “Thanks to home­grow,” says Vicente, who coau­thored the law, “we will still have legal adult access” – no mat­ter how hard the feds crack down on com­mer­cial grow­ers and retail­ers. But deny­ing states the abil­ity to reg­u­late mar­i­juana would elim­i­nate the tax rev­enues that reform­ers promised vot­ers. “If they want to act cyn­i­cally,” says Nadel­mann, “the fed­eral gam­bit would be to block reg­u­la­tion to make this as messy as pos­si­ble” – in the hopes that the pub­lic would sour on per­va­sive, unreg­u­lated weed. Iron­i­cally, if Obama suc­ceeds in gut­ting the new state laws, he will essen­tially be serv­ing the inter­ests of for­eign drug car­tels. A study by the non­par­ti­san think tank Insti­tuto Mex­i­cano Para la Com­pet­i­tivi­dad found that legal­iza­tion in Col­orado and Wash­ing­ton would deal a dev­as­tat­ing blow to the car­tels, depriv­ing them of nearly a quar­ter of their annual drug rev­enues – unless the fed­eral gov­ern­ment decides to launch a “vig­or­ous inter­ven­tion.” If that hap­pens, pot prof­its would con­tinue to flow to the car­tels instead of to hard-hit state bud­gets. “Something’s wrong,” says Stam­per, the for­mer Seat­tle police chief, “when the law­break­ers and the law enforcers are on the same side.” In the end, the best defense against fed­eral inter­ven­tion may be other states stand­ing up against pro­hi­bi­tion. While pro-pot sen­ti­ment is strongest in the West, recent polls show that legal­iza­tion is now begin­ning to enjoy major­ity sup­port nation­wide. “We’re beyond the tip­ping point,” says Stam­per. Spurred by the vic­to­ries in Col­orado and Wash­ing­ton, leg­is­la­tors are already mov­ing to legal­ize pot in Mass­a­chu­setts, Rhode Island, Ver­mont, Maine and Iowa. “It’s time for the Jus­tice Depart­ment to rec­og­nize the sov­er­eignty of the states,” Gov. Jerry Brown of Cal­i­for­nia declared. “We don’t need some fed­eral gen­darme to come and tell us what to do.” Obama, the for­mer constitutional-law pro­fes­sor, has relied on the expan­sive pow­ers of the chief exec­u­tive when it serves him polit­i­cally – pro­vid­ing amnesty to a gen­er­a­tion of Dream Act immi­grants, or refus­ing to defend the Defense of Mar­riage Act in court. A one-time pot­head who gave a shout-out to his dealer in his high school year­book, Obama could single-handedly end the insan­ity of mar­i­juana being treated like heroin under the Con­trolled Sub­stances Act with noth­ing more than an exec­u­tive order. What the pres­i­dent needs to act boldly, reform advo­cates believe, is for the ris­ing tide of pub­lic opin­ion to swamp the out­dated bureau­cracy of the War on Drugs. “The cit­i­zens have become more savvy about the drug war,” says Franklin, the for­mer nar­cotics cop. “They know this is not just a failed pol­icy – they under­stand it’s also a very destruc­tive pol­icy.” With an eye on his legacy, Franklin says, Obama should treat pot pro­hi­bi­tion like the costly mis­ad­ven­tures in Iraq and Afghanistan: “This is another war for the pres­i­dent to end.” This story is from the Decem­ber 20th, 2012 – Jan­u­ary 3rd, 2013 issue of Rolling Stone. Source: Rolling Stone (US) Author: Tim Dick­in­son Pub­lished: Decem­ber 7, 2012 Copy­right: 2012 Straight Arrow Pub­lish­ers Com­pany, L.P. Con­tact: letters@​rollingstone.​com Web­site: http://​www​.rolling​stone​.com/

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