WASHINGTON: Last fall, a prominent Seattle pot lawyer named Jeffrey Steinborn predicted doom for Initiative 502, the ballot measure that legalized marijuana in Washington State: “I truly believe that when this law passes, a legal challenge by the Feds will pretty much void all of it,” he said. Steinborn’s point was that, even though he supported legalizing marijuana, the measure would overstep Washington State’s authority by attempting to license pot farms and pot stores.Not only would federal prosecutors sue our state, he believed, the initiative would be “a law enforcement sting in plain sight” for anyone who tried to open a pot business.
That argument made for bizarre bedfellows. Other pot activists picked up Steinborn’s rallying cry, with one organization calling the initiative a “house of cards in a windstorm.” A passel of former federal anti-drug officials made this argument their primary talking point in a conference call with reporters last fall, in which they urged the president to oppose the initiative in Washington and a similar measure in Colorado. “Federal law, the US Constitution, and the US Supreme Court decisions say that this cannot be done because federal law preempts state law,” said former DEA administrator Peter Bensinger at the time.
In addition to legalizing personal possession of marijuana, the initiatives were written in a way that would replace the illicit pot market with a legal one—thereby ending the need to arrest dealers and growers (which pot activists like), while also cutting off cash to gangs that profit from illegal pot sales (which anti-drug officials like). But these ambitious initiatives could clash with the federal Controlled Substances Act, meaning that the greatest strength of a fully fledged replacement for the drug war—a regulatory model that cuts crime, raises taxes, and gets dealers off the street—would also be its greatest weakness in federal court.
So what happened when voters in Washington State and Colorado handily passed both initiatives last November? How did the Feds actually respond when state officials began a rule-making process this year to license pot farms, certify distributors, and let pot stores open? We finally got the answer last Thursday, when President Obama and Attorney General Eric Holder announced that they would let the initiatives stand. That alone was stunning news, and before we move on, let’s just pause to appreciate it: Entrepreneurs in Washington and Colorado will be growing large-scale recreational marijuana farms by next year, and adults will be buying pot in stores.
This is a real thing that is happening.
Under presidents Nixon, Carter, Reagan, Clinton, Bush, and Bush junior, pot busts more than doubled and then doubled again. The FBI reported 853,000 pot busts nationwide in the year 2010 alone—a year when pot arrests accounted for 52 percent of all drug arrests. That is, most of the drug war on US soil was about busting people for pot (disproportionately racial minorities). The White House drug czar’s office has also spent years fighting attempts to legalize marijuana, most recently opposing initiatives in California and Nevada, with a deluge of threats that federal law would preempt any state reforms. But now, President Obama has grabbed the steering wheel and taken America on a hairpin turn.
By standing back and letting Washington and Colorado implement these new laws, Obama has declared that the US drug war is not mandatory. If a state can present a comprehensive legal framework as an alternative—an alternative to the abstinence-only model—the president is saying, in essence, he’ll let the states try it.
States can opt out of the drug war, in other words.
This is radical.
The federal government has espoused only one message for decades when it comes to recreational drugs: You can never use them. And for decades, every state was required to fall in line.
But at least for this administration, the president will formally defer to the states on drug policy, much the way the federal government now defers to states on marriage equality. So last week’s news is about more than just two states and two pot initiatives. Defying the expectations of lawyers and antidrug hawks, this president will now let the states replace the drug war with something entirely new.
“If you step back, we’re talking about ending the war on drugs, and the federal government has given a green light to the states to try different approaches,” says Alison Holcomb, a lawyer who works for the ACLU of Washington and drafted Initiative 502, which contained exactly that strict framework for marijuana that the Feds have tacitly endorsed. “That is much bigger than legalizing marijuana in Washington and Colorado.”