PotBust

Tipping the Scales for Lady Justice

            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

 

 

Sensible Washington

Information Provided by: (*DISCLAIMER*)

The Law Office of Jeffrey Steinborn
3161 Elliott Avenue., Suite 340
Seattle, WA 98121
(206) 622-5117