HB 1317 creates the backbone for most the new regulations by expanding the medical marijuana enforcement division to control all legal marijuana. Current medical marijuana dispensaries would have the first chance to apply to become recreational marijuana retailers. Among the many regulations are a requirement that all marijuana business owner be residents of the state, also all marijuana sold must be placed in sealed nontransparent packages and it prohibits marijuana retailers from also selling alcohol. Residents will be able to buy up to the full limit of one ounce of marijuana, but non-residents will only be allowed to buy a quarter ounce at a time.

HB 1318 would establish new marijuana taxes. It would impose a 10 percent sales tax on retail marijuana and 15 percent excise tax on wholesale marijuana. Under Colorado law these tax increases must first go on the ballot to be approved by the voters of the state.

The legislature also approved a bill governing industrial hemp and a new marijuana DUI bill that sets a limit 5 nanograms THC per milliliter in blood.

All of the newly approved bills now go to Gov. John Hickenlooper (D) for his signature.

This is the first big step in what will be an ever evolving process. Like all other regulations, expect these to be continuously modified by the legislature in the coming years to adjust to what is and is not working in the new system. It is likely these laws will also serve as a blueprint for other states when they eventually legalize marijuana.

Photo by boodoo under Creative Commons license.

It is 4/20 again and time for my annual review of the progress the marijuana reform movement has made in the past 365 days. Without a doubt this was the best year for the movement so far, in the future it may be looked back on as the single most significant year in the long process of ending marijuana prohibition.

Legalization in Colorado and Washington State – Obviously the big accomplishment was voters in not one, but two states deciding to legalize marijuana. In Colorado, Amendment 64 was approved with 55.3 percent of the vote, and in Washington State Initiative 502 won with 55.7 percent of the vote. In both states now marijuana is legal for adults over 21 and in the near future retail marijuana stores should soon open.

The victories where huge on multiple levels. They proved voters are ready to support legalization and both states will serve as laboratories of democracy. They will show the rest of the country that legalization is a smart policy and how it should be done.

Public Opinion – The other big development this year is that two of the biggest national pollsters found for the first time more than half the country thinks marijuana should be legal. In December Quinnipiac found 51 percent think marijuana should be legal, and earlier this month Pew Research found 52 percent support for legalization. Combined with the recent victories at the ballot box there is a growing sense that the tipping point has been reached.

Medical Marijuana – In addition to the the big victories, there have been numerous smaller advances. The Maryland legislature approved a very tightly regulate medical marijuana law, and last November Massachusetts voters overwhelmingly approved a medical marijuana initiative. Given how well marijuana reform has done on the ballot in the state, it is likely to be a top target for a full legalization initiative in 2014 or 2016.

Decriminalization – Since the last 4/20 the Connecticut legislature has decriminalize  possession of up to an ounce of marijuana.

The Bad News – The most significant setback for the movement over the past 365 days was the narrow failure of Measure 80, which would have legalized marijuana in Oregon. It lost 46.6 percent yes to 53.4 percent no. Even though it suffered from real concerns about how it was drafted and an underfunded campaign, it still did surprisingly well. The silver lining is that the relatively close election results spurred the Oregon legislature to take a more serious look at legalizing marijuana.

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soon?

The Congressional Research Service, which not surprisingly provides research for members of Congress, has put together an extremely comprehensive analysis of possible responses from the federal government and the legal issues surrounding them. It is a long but worthwhile read if you want get into the weeds on the issue.

In summary, while marijuana is legal under state law it is still illegal under the Federal Controlled Substances Act. The federal government could decide to mostly leave the states alone, but if Obama wants to interfere the report looks at the three main tools at his disposal.

1. Federal Prosecution – The federal government can arrest people in these states for violating federal anti-marijuana laws. Going after regular smokers, while theoretically possible, would not be practical because it would require a massive new federal expenditure. The report points out 99% of drug offenses are dealt with under state law.

The federal government could go after the newly authorized commercial businesses to dissuade anyone from taking part. Or as they do with medical marijuana, only go after ones that violate some vague criteria.

2. Forfeiture – The CSA allows for the government to take property involved in drug crimes. Civil forfeiture doesn’t require criminal charges against the owner, just proof the property was involved in criminal activity. From the report: “Forfeiture proceedings are generally less resource intensive than a criminal prosecution and have been used in the past against medical marijuana dispensaries. In practice, the DOJ would be able to seize and liquidate property, both real and personal, associated with marijuana production distribution and retail sale facilities operating in Colorado and Washington without bringing any criminal action.”

This could be used in addition to prosecution or instead of it. If used aggressively this would make it nearly impossible for anyone to run a legal marijuana business in these states.

3. Preempt Lawsuit – The government could file a lawsuit in federal court claiming the new legalization laws are preempted by federal law. This is a tricky legal question and there is no guarantee the federal government would win. The personal possession provision in both laws are almost assured to be found Constitutional under the 10th Amendment. The main issue would likely be if the provisions licensing growers and retailers are preempted.

These possible actions are not mutually exclusive. The Obama administration could decide to use none of them by taking the hands-off approach Americans overwhelmingly would prefer, or they could use all three.

Attorney General Eric Holder claimed the administration would announce a decision on these new state marijuana laws “relatively soon,” but he said that almost two months ago.

Official White House photo by Pete Souza

We now have our first really good preview of how the legal market for marijuana will likely work in Colorado. The task force created by Gov. John Hickenlooper (D) to come up with recommendations on how to implement the newly approved Amendment 64 has finally released its official report. While the state government will probably not adopt every suggestion of the task force, this document should serve as the basic road map for implementation.

In addition to helping to shape the new marijuana rules in Colorado, it is likely this report will end up having national implications. It will probably directly or indirectly influence future marijuana legalization laws/regulation in other states.

The report is 165 pages and contains a total of 58 individual policy recommendations. The recommendations cover everything from how marijuana growers should be regulated to how products should be labeled and packaged. Here are just a few of the recommendations most likely to be of interest to an average consumer.

• Only Colorado residents should be allowed to attain licenses to run a marijuana business.
• Both residents and visitors should be permitted to buy marijuana for personal use, but the state could adopt a lower per-transaction purchase limit for non-residents. The highest possible limit would be one ounce per purchases because legally that is the most an adult is allowed to possess under the new law.
• Allow marijuana stores to only sell marijuana or related products.
• Require all marijuana products to label the THC content, list of non-organic pesticides used to in growing, and the point of origin.
• All marijuana products sold should be in child-proof packaging with a warning label.
• Limit THC per serving in marijuana infused products.
• Don’t allow marijuana products to also contain nicotine or alcohol.

These recommendations are non-binding but it is likely that many of them will be adopted in some form by the state.

This is the beginning of a very important transition in marijuana policy. The big political issue is no longer just whether or not marijuana should be legal but how it should be regulated and taxed.

What your states accomplished made headlines around the world. The policy experiment taking place in your two states will be closely monitored, both nationally and internationally. If legalization goes well in your states, that will serve as an example which other states and countries will follow in the near future. If this experiment goes poorly, it would not only hinder the broader reform movement, but also even risk reversing the gains made recently by increasing the chances of federal intervention, or even causing the state legislature to impose new restrictions.

All I’m asking is if you are an adult planning to smoke pot in Washington or Colorado for you to be conscientious, be safe and use common sense.

Be Conscientious – Even though most people don’t use marijuana, your neighbors and fellow citizens voted to allow you to without fear of prosecution. The best way to thank them is to be conscientious of the fact that most of your fellow citizens don’t smoke. Some people don’t like the smell, have health problems that can be irritated by any type of smoke, or don’t want their children to see marijuana being used. Just try to be respectful. Try to keep smoking private and away from people it might bother. Not only is it polite, but smoking in public is technically illegal.

Be safe – Don’t get high then drive or operate heavy machinery. It is not safe and it can result in a DUI arrest. Importantly, fears about a plague of “stoned drivers” is one of the most over-hyped arguments prohibitionists use to try to stop legalization efforts. If Colorado and Washington can prove that this concern is unfounded, it would be incredibly helpful for advancing the broader legalization movement.

Use common sense – Marijuana is still technically illegal under federal law. Before taking part, make sure you are not risking your job because federal rules about drug testing are still in place. While the federal government doesn’t have the resources to go after regular users, please don’t do something like bring an ounce into a secure federal courthouse. Remember also that in neighboring states marijuana possession is still considered a serious offense.

I’m convinced that legalizing marijuana is the best policy option for our society, but you have a chance to help prove it. The world is watching so show everyone that your fellow citizens made the right decision. Have fun but also be safe, smart and conscientious.

Photo by Torben Bjørn Hansen under Creative Commons license.

Yesterday, when Colorado Governor Jon Hickenlooper added Amendment 64 to the state’s constitution it became legal for adults to possess, use and even grow a limited quantity of marijuana for their personal. This historic moment was in part made possible thanks to the work of Mason Tvert, who was an official proponent of the initiative and the co-director of the campaign in support of it.

I recently had a conservation with Mr. Tvert about Amendment 64 and what he thinks it will mean for the future of marijuana legalization. This should be the first in a series of conversation over the next year with people directly or indirectly involved in all the aspects marijuana legalization now that it is officially legal Colorado and Washington State. This is an exciting time for marijuana policy reform with many political, regulator, and judicial issues soon to be address.

JON WALKER: – The polling going into Election Day showed Amendment 64 just barely passing, but it ended up getting more votes than President Obama. Did the size of Amendment 64’s victory in Colorado surprise you? Why or why not?

MASON TVERT: – I was relatively confident that a majority of Coloradans were ready to adopt a more sensible approach to marijuana, but I was surprised by how strong that majority ended up being. The turnout associated with a presidential election likely contributed to the boost in support, which has been the case every time a marijuana initiative has been on the ballot during a presidential election year. The impact might have been even more pronounced given Colorado’s status as a swing-state, in which GOTV efforts were likely more intense and better funded. Overall, though, I have little doubt that the strength of our support was the result of the groundwork we laid here in Colorado over the past eight years. Public education efforts, local and state ballot measures, and the successful establishment of a rapidly developing system of medical marijuana regulation has produced an electorate with far more knowledge of marijuana than most. And when people know more about marijuana, they are almost always more likely to support ending its prohibition.

WALKER: – What is your biggest worry for Amendment 64 moving forward, and what current signs make you most hopeful?

TVERT: – Our biggest concern is that some of our elected officials might fail to represent the voters who elected them. We are glad that our governor, attorney general, and legislature have begun to move forward with implementation by initiating the formation of a task force that will study the issue and provide recommendations to the legislature as it takes on the establishment of the regulatory system during the upcoming session. It is has also been great to see prosecutors and police across Colorado announcing they will no longer be filing new cases or making arrests for adult possession, and in some places they are dropping pending cases.

At the federal level, legislation is moving forward that would take marijuana out of the federal government’s hands, and more supporters are beginning to emerge. For example, Rep. Diana DeGette (D) and Rep. Mike Coffman (R) of Colorado, who have never been out front on the issue, have taken the lead in introducing such a bill and are being joined by other members in a reinvigorated push in Congress. A nationwide survey conducted by Public Policy Polling found that a strong plurality of Americans believe the federal government should allow Colorado and Washington to move forward with implementation, compared to just 33 percent who support interfering. It also showed that 50 percent of Americans believe marijuana will be legal at the federal level within 10 years. With two states regulating marijuana for adult use, 18 medical marijuana states (plus D.C.), legislatures nationwide taking up the issue, and public support growing, the writing is on the wall.

WALKER: – It seems the federal government could adopt one of three basic responses: It could sue Colorado to try to stop the amendment, it could wait until the commercial sector starts developing and then raid businesses, or it could take a mostly hands-off approach. Do you currently have any indication about what response seems likely?

TVERT: – The Department of Justice has continued to say it is reviewing the initiative, and it has yet to indicate what its approach will be.

WALKER: – As one of the first ballot measures passed to legalize marijuana, Amendment 64 will likely be seen as a model for other states moving forward. What aspects of your new law do you think are likely be adopted more widely?

TVERT: – Passage of Amendment 64 demonstrated that voters are becoming increasingly comfortable with the idea of allowing adults to privately use and grow limited amounts of marijuana. They recognize that law enforcement could be doing more productive things than arresting and prosecuting individuals for such activities. As other states begin to take on this issue, they will also look to the economic benefits of a Amendment 64 and the amount of revenue and savings produced by such a measure. Since industrial hemp is such a no-brainer, I think it will be included in these types of laws whenever possible.

Gov. John Hickenlooper today signed an Executive Order that makes an “official declaration of the vote” related to Amendment 64. That 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.

It is still illegal under state law to buy or sell marijuana in any quantity and to consume marijuana in public or in a way that endangers others.

“Voters were loud and clear on Election Day,” Hickenlooper said. “We will begin working immediately with the General Assembly and state agencies to implement Amendment 64.”

It is now legal for adults over the age of 21 to possess up to an ounce of marijuana. It is also legal for adults to grow a limited amount of marijuana for their personal use.

Amendment 64 will even allow the for the highly regulated production and retail sale of marijuana, but it will be over a year before those changes are implemented. The state will need to write new regulations first before such a system can be put in place.

Colorado has now become the second state where it is legal for adults to smoke marijuana. Last week Initiative 502 took effect in Washington State.

The federal government has impeded and harassed the marijuana industry but clearly hasn't eliminated it

It has been two weeks since the voters in Colorado and Washington State chose to legalize marijuana, yet there still hasn’t been any solid response from the Obama administration. How the federal government will deal with the conflict between state and federal laws on marijuana remains the big unanswered question.

Given this void of solid information, one can only speculate.  But it seem likely that the federal government’s behavior toward medical marijuana could serve as an example for how it will deal with the legalization of recreational marijuana.

Under federal law marijuana is still classified as a Schedule I substance, meaning that it has “no currently accepted medical use in the United States.” The federal government does not believe there is such as thing as “medical marijuana.” That is why even in the 18 states that have legalized medical marijuana the federal government still considers it illegal. What this means is that on a legal level the federal/state conflict that will be created by the new marijuana legalization initiatives is basically no different than the ongoing federal/state conflict over medical marijuana.

What we do know from our decades of experience with medical marijuana is that the federal government has neither the resources, the desire nor the ability to go after regular users. We can safely assume that in Colorado and Washington State the federal government will not be arresting adults for having or using small amounts of marijuana. The personal possession parts of both laws are secure.

When it comes to the production and retail sale of medical marijuana, however, the federal government has been cryptically inconsistent in the past few years. They have raided and tried to shut down many dispensaries. The primary target seems to be the largest dispensaries and those in states with looser regulations, but that is not always the case. Federal agencies have also made it difficult for all dispensaries to operate as businesses by doing things  like cutting off the use of credit cards and access to banking.

That said, there are still thousand of dispensaries operating in multiple states. The federal government has impeded and harassed the medical marijuana industry but clearly hasn’t eliminated it.

In the short- to medium-term a very similar response to the recently approved marijuana legalization initiatives seems the most likely of several possible outcomes. The federal government will harass and delay a legal marijuana retail system, but won’t completely stop one from existing. Of course we won’t know for sure until the rubber really meets the road when the states begin implementation.

Photo by Dank Depot under Creative Commons license

Boulder District Attorney Stan Garnett

Even though last week the voters of Colorado overwhelmingly approved Amendment 64, it will be roughly a month before it is officially added to the state constitution and goes into effect. In the meantime adult marijuana possession is still technically a crime under state law. But already at least one district attorney is responding to the clear will of the electorate. In Boulder the DA is dismissing several pending minor marijuana cases. From the Boulder Daily Camera:

District Attorney Stan Garnett will dismiss all pending criminal cases of possession of less than an ounce of marijuana, saying the overwhelming support for Amendment 64 in Boulder County makes it highly unlikely a jury would ever reach a guilty verdict in any of those cases.

“You’ve seen an end to mere possession cases in Boulder County under my office,” Garnett said Wednesday, becoming the first Colorado district attorney to drop pot cases because Colorado voters approved Amendment 64 earlier this month.

As a result of the announcement, police officials across Boulder County also stated they will no longer issue marijuana-possession citations in light of Amendment 64. The constitutional amendment will legalize possession of up to one ounce of marijuana in Colorado for those 21 or older.

Earlier this week a similar thing happened in Washington State, with two of the largest counties dismissing hundreds of pending marijuana cases as a result of the recently approved marijuana legalization initiative. Hopefully these actions will encourage other district attorneys in both states to follow suit. It is simply a waste of resources to prosecute individuals for something the electorate doesn’t think should be a crime and won’t be a crime by the beginning of next year.

Photo by Jeffrey Bealle under Creative Commons license.

Young and voting

One important take away from this election may be that if you want to significantly increase youth turnout, put marijuana legalization on the ballot. Both nationally and in the important swing states, the percentage of the vote that came from adults under 30 was basically unchanged since the 2008 election. According to the exit polling data from CNN, the youth vote was 18 percent of the electorate in 2008 and 19 percent of the electorate in this past election.

By comparison, in the three states with marijuana legalization initiatives on the ballot, Colorado, Oregon and Washington State, there was a significant surge in the voters age 18-29. In 2008 young people made up just 14 percent of the vote in Colorado but this year it was 20 percent. Even more incredibly, in Washington State the youth vote went from just 10 percent of the electorate last election to 22 percent this time.

It is theoretically possible that some unrelated factors or bad data caused there to only be a huge increase in the youth vote in these three states but having marijuana legalization initiatives on the ballot appears by far the most likely cause. Young voters overwhelming support marijuana legalization and it is something they strongly care about. This big increase in the youth vote helped Initiative 502 in Washington state and Amendment 64 in Colorado win by such large margins.

It seems that marijuana legalization is uniquely able to get a large number of young adults to turnout to vote in a way almost no other issue can. Marijuana legalization initiatives appeared to have significantly increased youth turnout in both safe presidential states, like Washington, and also in traditional swing states, like Colorado.

The lesson for politicians and political strategists appears to be that if you want to significantly increase youth turnout, make the election about legalizing marijuana.

Image by maireads under Creative Commons License.