Why you should/or shouldn’t vote for I-502.
Washington’s current marijuana laws bring to mind one of the few practical things I learned at the Yale Law School. It’s best not to try to make things clearer than they really are.
RECENT AMENDMENTS TO WASHINGTON’S MEDICAL MARIJUANA LAW:Last year the Washington legislature passed Engrossed Second Substitute Senate Bill 5073. It legalized the manufacture and distribution and possession of medical cannabis, changing these acts from a crime for which there might be an “affirmative defense” to not a crime. Our Governor asked the United States Attorney General what would be the Government’s policy should such a law pass. The Attorney General responded that anyone who participated, including state employees, could be subject to the full spectrum of criminal and civil (forfeiture) sanctions.
The Governor vetoed all of the parts of the bill that might have exposed state employees to liability. The law, as originally enacted, called for state regulation of manufacture and distribution of medical cannabis. It provided for registration of patients and providers. One who was listed on the registry would not be arrested if in compliance with the state law. The catch: the governor vetoed the registration parts of the law, so there is no registry. Most law enforcement are now considering the “no arrest” provisions to be orphaned, that is, they have no affect absent registration.
One federal judge in Spokane, however, doesn’t read it that way. Judge William Nielsen recently held that since the part of the law that was not vetoed specifically states that legitimate patients and providers shall not be arrested, law enforcement officers applying for search warrants for marijuana must now first establish that the marijuana is not medically authorized.
This ruling is not binding on any other judges, state or federal, but it is certainly compelling authority that this is indeed the state of the law. I wish I could agree, but I fear that state judges will rule simply that in vetoing the registration aspects of the new law, the governor essentially vetoed the rest of the amendments as well. It’s a defense worth raising, but don’t pass up any great offers in reliance on prevailing with this one.
DISPENSARIESWhat does remain of the new law is some confusion, and the apparent authorization of “collective gardens” of up to 45 plants and up to 10 members. The law does not make it clear how many of these gardens can be on the same piece of real estate. Nor does it make clear whether one can join the collective garden at its administrative center, do one’s collective gardening participation, collect one’s share of the crop, and then leave, signing out of the collective as one leaves, less than an hour later. This is the model used by a number of the existing dispensaries. Simply put, some counties accept this model and some don’t. My advice: don’t bank your future on this model surviving or spreading.
So, how can there be so many dispensaries, many of them with their own “cannabusiness” lawyers? The answer: think speakeasies. This is how change takes place in a free society. The people want cannabis. Too many of them want cannabis for the government to effectively prohibit it. This is where the change starts.
As to their lawyers, if ever there was an area where the law is not clear, this is it. My own feeling is that, given the fact that virtually all cannabusinesses are illegal under federal and state law, a lawyer who goes too far in counseling these businesses risks indictment for conspiracy, a word whose roots are in the Latin verb “to breathe together.” I believe that any lawyer who advises a cannabusiness about how to break the law (how to conduct their illegal business) gives bad advice. Every form filled out, every business license that is applied for, and every tax payment on sales (aka donations) is an exhibit for the prosecution should they choose to carry out their threats. Pot isn’t legal yet, and cannabusinesses are just the speakeasies of the 21st century. If your lawyer tell you s/he can set you up in a cannabis-related business so that you can comply with all state laws, consider getting a second opinion. In this lawyer's opinion, it's not possible.
I-502This is the issue that has split the Hempfest family. They voted to be neutral on this law, meaning that Vivian and others who might oppose it are muzzled. NORML voted to endorse it with some caveats that have been buried. NORML's primary concern is that it won't work and that it will leave us with an unacceptable green DUI law. My personal opposition has caused some confusion, since I’m on the NORML board that voted to endorse. My feeling then, and now, is that NORML had no choice but to endorse it with reservations. I am not so bound and I must speak out about what I see. To me, the drawbacks of I-502 outweigh any of the possible positive effects it might generate. My position hasn't changed in decades: the only way to deal with federal prohibition is to completely decriminalize cannabis under state law, and economically force the feds to adopt a more sensible approach. State revenue through taxes can wait.
In the past I’ve been quoted disparaging I-502. I've said it won't work, it's a government sting, a Machiavellian masterpiece, and possibly even a circle jerk. Now that I’ve read it carefully, maybe I like it. It’s guaranteed to bring me lots of work. But do I like it as public policy? Should you? Here are some bullet points to help you make that decision. You should vote for I-502 if you believe it will work. This means you must believe that:
That's a lot of believing. I'm pretty gullible, but I can't do it. I see I-502 as a disaster that will fail to lure participants into the legal market in numbers sufficient to satisfy the demand, fail to sneak past federal prohibition, leave us having exhausted the resources for reform, and stuck with a terrible DUI law that has been rejected by every state legislature that has considered it. This law cannot be vetoed, changed, or amended for two years.
Now if you believe all that, then come sit down here beside me. I have a few other things I'd like to sell you.
