Colorado Lawmakers Approve First-In-The-Nation Regulations Governing Retail Marijuana Production And SalesMay 9, 2013
Colorado lawmakers made history Wednesday by approving first-in-the nation regulations governing the retail production and sale of cannabis to those age 21 and older.
The Huffington Post has the story here:
On the final day of the legislative session, Colorado lawmakers finally passed two historic bills to implement recreational marijuana legalization in the state — making Colorado the first state in the U.S. to take such steps toward the legal sale, regulation and tax of marijuana for recreational use.
House Bill 1317, which proposes the regulatory framework for legal marijuana, passed the Senate on a 29-6 vote and passed the House on a 37-28 vote, on Wednesday.
House Bill 1318, which proposes the tax rates which will fund the regulatory framework for legal marijuana sales and will ultimately need Colorado voter approval, passed the Senate 25-10 and passed the House 37-28, Wednesday.
Both the regulatory framework bill and the tax bill head to Gov. John Hickenlooper’s desk and appear poised to become law.
The two measures do not impact the state’s existing medical marijuana laws, nor do they interfere with existing legal protections legalizing the personal possession (up to one ounce) and cultivation (up to six plants) for non-commercial purposes.
Further details about the newly approved regulatory bills is available here.
Lawmakers’ proposed tax scheme on the commercial production and retail sale of cannabis must be approved by a majority of state voters before being implemented. Proposed taxes do not apply to those engaged in the personal cultivation or not-for-profit transfers of cannabis.
Lawmakers’ proposals come six months after 55 percent of state voters approved Amendment 64, which legalizes the adults possession and cultivation of limited quantities of marijuana, and tasked the state with establishing regulations for the retail production and sale of cannabis to the public.
It has been nearly seven weeks since voters in Colorado and Washington made history, enacting at the ballot box unprecedented measures legalizing the adult possession on cannabis. Yet during this time, federal officials have largely remained silent.
One week ago, US Attorney General Eric Holder cryptically told Bloomberg News that the administration will formally announce its intentions “relatively soon,” but added no further details. Most recently, on Friday, President Obama told ABC News’ Barbara Walters: “It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal. … We’ve got bigger fish to fry.” Of course, federal officials do not target minor marijuana offenders now — so the President’s statement provides little clarity as to what actions the Administration may take going forward as Colorado and Washington begin implementing broader regulatory reforms, including measures to license proprietors to commercially produce and sell cannabis to adults.
Today, in Alternet.org, I speculate as to what actions the Administration may take — and what actions they may not take — in the coming weeks as state lawmakers work toward the full implementation of Colorado and Washington’s newly enacted marijuana laws. An excerpt from this commentary appears below.
Will Obama Go After Legal Pot in Washington and Colorado?
With public opinion firmly behind the will of the voters, is it realistic to think that the Obama Justice Department will take action to try and nullify Colorado and Washington’s legalization laws? It’s possible, but it may not be as likely as some think.
For starters, states are not mandated under the US Controlled Substances Act to criminalize marijuana or to arrest and prosecute adult cannabis consumers and the federal government cannot compel prosecutors in Colorado or Washington to do so. The Justice Department and the US Drug Enforcement Administration could, theoretically, choose to selectively prosecute those individuals in Colorado and Washington who possess or grow quantities of plant that are compliant with state law. But such a scenario is hardly plausible. The federal government lacks the manpower and the public support – and therefore the political will – to engage in such behavior and this reality is unlikely to change any time soon. As acknowledged by former congressman and ex-DEA director Asa Hutchinson at a recent CATO Institute forum on the subject, the federal government never has prosecuted people for possessing an ounce of marijuana and it is not about to start doing so now.
By contrast, the Obama administration may attempt to actively prohibit states from allowing for the above-ground, licensed production and sale of cannabis by authorized proprietors. Justice Department officials could theoretically do so by either bringing a legal challenge against the states, by threatening local officials, or by proposing to withhold federal funding. But none of these actions are assured. Here’s why.
To date, the Obama administration has done little to interfere with the state-approved production and licensed distribution of medical marijuana in those states that explicitly license and regulate this activity — specifically in Arizona, Colorado, Maine, New Jersey, and New Mexico. (In recent days, some of the first state-approved dispensaries opened for business in Arizona and New Jersey. In coming months, licensed dispensaries are also anticipated to open their doors to the public in Vermont as well as the District of Columbia. **AUTHOR’S NOTE: By contrast, the Justice Department has taken actions to aggressively close operations in California, Oregon, Montana, and Washington — though none of these states explicitly license dispensaries.**) In Colorado – where the state has licensed several hundreds of cannabis dispensaries and oversees “seed to sale” regulations governing the plant’s production and distribution – federal officials have yet to either file suit or threaten any of the state regulators who oversee the program. In response to a lawsuit filed in 2011 by Arizona Gov. Jan Brewer, who sought to invalidate the state’s 2010 medical cannabis law, lawyers for the federal government affirmed that the administration had never engaged in such strong-arm tactics and did not intend to.
The federal judge in the case agreed. She rejected Gov. Brewer’s legal arguments that the operation of state-approved medical marijuana dispensaries was preempted by federal law or put state employees at risk for federal prosecution, determining “[T]he Complaint does not detail any history of prosecution of state employees for participation in state medical marijuana licensing schemes [and] fails to establish that Plaintiffs are subject to a genuine threat of imminent prosecution and consequently, the Complaint does not meet the constitutional requirements for ripeness.”
A Maricopa County (AZ) Superior Court ruling from earlier this month further affirms that states possess the legal authority to regulate the legal distribution of cannabis, at least in some specific instances, without running afoul of federal anti-drug laws. In the case before the Court, White Mountain Health Center, Inc. v. Maricopa County, Judge Michael Gordon determined that the federal Controlled Substances Act did not preempt Arizona’s efforts to authorize “the local cultivation, sale, and use, of medical marijuana.” Writing for the Court, Judge Gordon declared that nothing in Arizona’s law circumvents federal law since Justice Department officials could still continue to locally enforce the Controlled Substances Act. In fact, Judge Gordon suggested that the new law “affirmatively provides a roadmap for federal enforcement of the CSA, if they so wished to” since the statute requires patients and proprietors to register their activities with the state. He concluded: “The Court rejects … arguments that the [law] violates public policy simply because marijuana use and possession violate federal law. Eighteen states and the District of Columbia have passed legislation permitting the use of marijuana in whole or in part. The Court will not rule that Arizona, having sided with the ever-growing minority of States, and having limited it to medical use, has violated public policy.”
Some legal experts, including law professor Robert Mikos of Vanderbilt University Law School, suggest an additional legal theory as to why Colorado and Washington’s proposed regulatory schemes may not be subject to federal preemption. Speaking at a recent CATO Institute sponsored forum, Mikos suggested that the newly enacted state legalization laws do not violate the spirit or the intent of the Controlled Substances Act because the federal law exists for the expressed purpose of limiting the consumption of certain substances by the public, particularly young people. One can argue that the proposed statewide regulatory schemes in Colorado and Washington – which impose age restrictions for buyers and limit sellers to those authorized by the state – are intended to serve a similar purpose. Further, the proposed state programs, “do not stop federal authorities from sanctioning registrants.” Notably, Superior Court Judge Gordon specifically highlighted these arguments in his decision to uphold Arizona’s law and to reject claims that it positively conflicted with federal law.
“No one can argue that the federal government’s ability to enforce the CSA is impaired to the slightest degree [by Arizona’s medical marijuana law],” he opined. “Instead of frustrating the CSA’s purpose, it is sensible to argue that the [law] furthers the CSA’s objectives in combating drug abuse and the illegitimate trafficking of controlled substances.”
You can read the full text of my commentary here.
History was made once again today when Colorado Gov. John Hickenlooper signed an Executive Order that makes an “official declaration of the vote” related to Amendment 64. This declaration formalizes the amendment as part of the state Constitution and makes legal the personal use, possession and limited home-growing of marijuana under Colorado law for adults 21 years of age and older.
“Voters were loud and clear on Election Day,” Gov. Hickenlooper said in a prepared statement. “We will begin working immediately with the General Assembly and state agencies to implement Amendment 64.”
Colorado joins Washington as the first two states in modern history to legalize the consumption of cannabis by adults.
As of today, the following acts are no longer unlawful under Colorado state law for persons 21 years of age or older:
(a) POSSESSING, USING, DISPLAYING, PURCHASING, OR TRANSPORTING MARIJUANA ACCESSORIES OR ONE OUNCE OR LESS OF MARIJUANA.
(b) POSSESSING, GROWING, PROCESSING, OR TRANSPORTING NO MORE THAN SIX MARIJUANA PLANTS, WITH THREE OR FEWER BEING MATURE, FLOWERING PLANTS, AND POSSESSION OF THE MARIJUANA PRODUCED BY THE PLANTS ON THE PREMISES WHERE THE PLANTS WERE GROWN, PROVIDED THAT THE GROWING TAKES PLACE IN AN ENCLOSED, LOCKED SPACE, IS NOT CONDUCTED OPENLY OR PUBLICLY, AND IS NOT MADE AVAILABLE FOR SALE.
(c) TRANSFER OF ONE OUNCE OR LESS OF MARIJUANA WITHOUT REMUNERATION TO A PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER.
(d) CONSUMPTION OF MARIJUANA, PROVIDED THAT NOTHING IN THIS SECTION SHALL PERMIT CONSUMPTION THAT IS CONDUCTED OPENLY AND PUBLICLY OR IN A MANNER THAT ENDANGERS OTHERS.
(e) ASSISTING ANOTHER PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER IN ANY OF THE ACTS DESCRIBED IN PARAGRAPHS (a) THROUGH (d) OF THIS SUBSECTION.
Governor Hickelnlooper also announced today the formation of 24-member task force to oversee the implementation of the law, which ultimately mandates for the commercial production and sale of cannabis by those licensed to do so. A representative of Colorado NORML sits on this task force.
As I previously wrote last week, to be clear: This is not decriminalization — a policy change that amends criminal penalties for minor marijuana offenses, but that continues to define cannabis as illegal contraband under the law and subjects its consumers to civil penalties. Today in Colorado, like in Washington, cannabis — when possessed in private by an adult in specific quantities — is a legal commodity. And it is likely that there is very little that the federal government can do to stop it. States are not mandated to criminalize marijuana or arrest adult cannabis consumers and the federal government cannot compel prosecutors in Colorado or Washington to do otherwise.
The voters have spoken and change is upon us. Can you smell the freedom?
Today, for the first time in 89 years (Washington lawmakers initially outlawed cannabis in 1923, 14 years ahead of the enactment of federal prohibition.), an adult may possess up to one ounce cannabis (and/or up to 16 ounces of marijuana-infused product in solid form, and 72 ounces of marijuana-infused product in liquid form) for their own personal use in private — and they may do so without being in violation of state law.
To be clear: This is not decriminalization — a policy change that amends criminal penalties for minor marijuana offenses, but that continues to define cannabis as illegal contraband under the law and subjects its consumers to civil penalties. Today in Washington, cannabis — when possessed in private by an adult in specific quantities — is a legal commodity. (By contrast, public consumption of cannabis is a civil violation. Existing penalties regarding home cultivation for non-patients remain unchanged. Rules regarding the regulated sale of cannabis to adults are to be codified later next year.)
Nevertheless, the immediate statutory changes effective today provide unprecedented legal protections for adult cannabis consumers. Rather than presuming cannabis to be illicit, and that those who possess it are engaged in illegal activity, the enactment of I-502 mandates law enforcement and prosecutors to presume that cannabis is in fact legal, and that those who possess it in personal use quantities are engaged in legal activity, unless the state can show that there are extenuating circumstances proving otherwise. Moreover, since up to one ounce of cannabis will no longer be classified as an illicit commodity under state law, police will have no legal authority to seize it from lawful adults. Finally, police will arguably no longer be permitted to legally engage in ‘fishing expeditions’ when they encounter cannabis in ‘plain view’ –- such as in someone’s home or in their car. Since marijuana is no longer defined as contraband, state police will no longer have sufficient cause to engage in a further search of the area because, legally, no criminal activity has taken place.
Yes indeed, the dominoes are falling and more will fall imminently. (Colorado’s legalization measure will take effect in early January.) And there is very little that the federal government — which on the eve of legalization said only that it is ‘reviewing’ the new law — can do to stop it. States are not mandated to criminalize marijuana or arrest adult cannabis consumers and the Federal government cannot compel prosecutors in Colorado or Washington to do otherwise.
Like alcohol prohibition before it, the criminalization of cannabis is a failed federal policy that delegates the burden of enforcement to the state and local police. How did America’s ‘Nobel Experiment’ with alcohol prohibition come to an end? When a sufficient number of states enacted legislation repealing the state’s alcohol laws prohibition effectively discontinued. With state police and prosecutors no longer enforcing the Federal government’s unpopular law, politicians eventually had no choice but to abandon the policy altogether.
History now repeats itself.
I have an op/ed today online at The Hill.com’s influential Congress blog (“Where lawmakers come to blog”).
Read an excerpt from it below:
Voters say ‘No’ to pot prohibition
Voters in Colorado and Washington made history on Election Day. For the first time ever, a majority of voters decided at the ballot box to abolish cannabis prohibition.
… Predictably, the federal government – which continues to define cannabis as equally dangerous to heroin – is not amused. According to various media reports, the Justice Department is in the process of reviewing the nascent state laws. Meanwhile, the U.S. Drug Enforcement Administration has already affirmed that the agency’s “enforcement of the [federal] Controlled Substances Act remains unchanged.” That may be true. But in a matter of weeks, the local enforcement of marijuana laws in Colorado and Washington most definitely will change. And there is little that the federal government can do about it.
States are not mandated to criminalize marijuana or arrest adult cannabis consumers and now two states have elected not to. The federal government cannot compel them to do otherwise. State drug laws are not legally obligation to mirror the federal Controlled Substances Act and state law enforcement are not required to help the federal government enforce it. Yes, theoretically the Justice Department could choose to prosecute under federal law those individuals in Colorado and Washington who possess personal amounts of cannabis. But such a scenario is hardly plausible. Right now, the federal government lacks the manpower, political will, and public support to engage in such behavior. In fact, rather than triggering a federal backlash, it is far more likely that the passage of these two measures will be the impetus for the eventual dismantling of federal pot prohibition.
Like alcohol prohibition before it, the criminalization of cannabis is a failed federal policy that delegates the burden of enforcement to the state and local police. How did America’s ‘Nobel Experiment’ with alcohol prohibition come to an end? Simple. When a sufficient number of states – led by New York in 1923 – enacted legislation repealing the state’s alcohol prohibition laws. With state police and prosecutors no longer complying with the government’s wishes to enforce an unpopular law, federal politicians eventually had no choice but to abandon the policy altogether.
… On Election Day, voters in Colorado and Washington turned their backs on cannabis prohibition. They are the first to do so. But they will not be the last. Inevitably, when voters in the other 48 states see that the sky has not fallen, they too will demand their lawmakers follow suit. As more states lead the way, federal politicians will eventually have no choice but to follow.