WELCOME TO HEMPFEST 2011 –
THE 20TH ANNIVERSARY
CANNABIS REFORM IN WASHINGTON: THE STATE OF THE LAW, AND THE STATE OF THE
MOVEMENT.
Q:
How do you start a movement?
A: Form a circle and start
shooting.
Yup. That’s how it works. In the last year a number of new
players have checked into the cannabis reform movement. It didn’t take long for the
disagreements to erupt. Here’s a
thumbnail of the current state of
things:
First, there’s Engrossed Second
Substitute Senate Bill 5073.
This was a good faith attempt involving a lot of hard work by a lot of good
folks, to make some sense of medical marijuana. It would have provided
protection from arrest for legitimate participants in the Cannabis market, as
consumers, caregivers, distributors or growers. But most of it was vetoed by the
governor for reasons that, while possibly disingenuous, are difficult to
dispute: The regulatory system
proposed by the new law would require state employees to engage in conduct that
might subject them to federal prosecution.
And that’s the problem.
Any serious attempt at reform at the state level has to deal effectively
with the clear and present danger that the federal government will do what it
has been threatening to do for some time: arrest people in the cannabis industry
who are in compliance with state law. Absent some pressure to keep the federal
government from trumping any reform made at the state level, to simply thumb our
noses at the feds and hope they won’t interfere is a lame,
deceptive and dangerous strategy. It’s most certainly not “courageous.” But I digress . . .
What’s left of the 5073 reminds me of one of the first lessons I learned
in law school: It’s best not to try
to make things clearer than they really are.
I’ll try to explain what we think the new law means. Much of it became effective July 22
of 2011. A detailed analysis will
follow. The long and the short of it is that dispensaries are now clearly
illegal. It’s also clear that a
single individual can possess a 60 day supply, which is “presumptively” 15
plants, while a “collective grow” may include up to 10 patients and up to 45
plants.
Why do the dispensaries still exist?
Because everyone knows it’s the only way to give patients safe access to
their medicine, and no one has come up with a better idea. Democracy can be remarkably flexible
when you have a few enlightened people in the right places.
For more detail, keep tuned.
Next are the new rules passed by the Seattle City Council. It’s troubling to have to take issue
with folks that we know are trying to accomplish the same thing we are, but take
issue we must. These rules are an
attempt to legitimize medical cannabis distribution and to bring it into
compliance with other city rules such as zoning, taxation, health regulations,
etc. Bringing cannabis distribution
into the mainstream is a good idea—and a bold one. The question is, can an individual
comply without confessing to all of the elements of the federal crime of
manufacture or distribution of marijuana?
It’s not clear, but it’s not likely.
In order to comply with the new rules, an individual is required to admit
in writing all of the elements of the federal crime of manufacture or
distribution of marijuana—so much for the right against self-incrimination. At 100 plants or 100 kilos the
penalty becomes a mandatory 5 years in federal prison. Unfortunately, the City’s attempt to
create rules that would allow patients safe access to cannabis is simply not
workable. Unless there is some way
to comply without admitting to a federal crime, the constitution forbids it.
So that’s the state of the law.
Though it is complex, once again, the answer to the age old question is
this: No, you can’t start a
dispensary, though there is room for community gardens of up to 45 plants. If you want to actually make any
serious money in the cannabis industry, you still have to break the
law—including the state law.
Then there is the subject of reforms.
Sensible Washington’s dedicated volunteers did prodigious duty, but
absent the funding necessary to buy signatures, we once again fell short. Our initiative will not make it on
the ballot. It’s a shame, since the formula of this initiative is the only one
with some chance of escaping preemption by the feds. The theory is simple. If the state removes all criminal
penalties for the adult use, possession, manufacture or distribution of
cannabis, while passing some reasonable civil regulations, the feds are then
left with the choice between accepting the civil regulations enacted by the
legislature, or leaving cannabis totally unregulated. The other reform strategies lack this
single element. They can all be defeated with a single action by the feds,
leaving the original state criminal penalties in place. Absent some movement on this
issue by the feds, the strategy of simply removing all state criminal penalties
is the only one that has any practical chance of success.
Which leads us to the proposal put forth by NAW, a new group headed by
Alison Holcomb, formerly of the ACLU, and including such luminaries as Rick
Steves and John McKay. They may have
the political muscle to accomplish their goal, but their proposal is tragically
flawed. NAW has let the polls tell
them what to do. Their polls tell them that if you make enough concessions to
the prohibitionists, you can get a legalization bill passed. But the concessions
are tragic. For example, under the
NAW law, any minor who drives with any trace of cannabis metabolite in his/her
blood, will be automatically guilty of driving under the influence. Zero
tolerance. When you consider the
indisputable fact that traces of cannabis metabolites may remain in the body for
weeks after all intoxication is gone, the flaw in this plan is inescapable.
For persons over 21, having more than 5 nanograms of a cannabis
metabolite in your system makes you automatically dwi.
This means patients and relatively regular
users could never drive.
Another concession is that a person can only possess one ounce of
cannabis at a time. Ms. Holcomb, the
spokesperson for NAW observed “I don’t know why anyone would need to possess
more than an ounce of pot.” Really
now? Maybe she hasn’t been to Costco
or Sam’s Club.
The proposal contains some other equally tragic flaws, but its
fundamental failing is that it won’t work. Neither consumers nor growers will
comply –it’s too complicated, and too restrictive.
This means it accomplishes none of the
goals of legalization, prominent among which are elimination of the black market
and safe access for all consumers.
So, do I have any advice?
Sure—keep working for legalization. If NAW has the muscle, lean on them to do it
right, and to abandon their cowardly concessions to the prohibitionists and push
through a law with some hope of actually making a difference.
If they don’t, turn to your elected
representatives. Both the King
County Prosecutor and the Seattle City Attorney have taken thoughtful
progressive stances on the various marijuana issues. It doesn’t seem to hurt them on
Election Day.
J
