Every 53 minutes, someone in Washington State gets arrested for pot. That could be a thing of the past before the year is out. Initiative 502, on the November ballot, is the whole shebang: legalization, taxation, and regulation of marijuana. We're not just talking about making pot possession punishable by, say, a $100 fine, like Massachusetts did in 2008. Instead, I-502 would remove all penalties for adults 21 and older who possess up to an ounce of marijuana. It would also license pot agriculture, allow trucks to drive around distributing pot like beer, and permit stores to sell pot over the counter.
No state has ever done this. Passing I-502 would put Washington State at the forefront of the national movement to finally end pot prohibition. (The 10,000 annual pot arrests in Washington State are just a sliver of the 853,838 arrests in the United States, where there's one pot bust every 37 seconds.) And if current polling can be believed, I-502 will pass. In January, SurveyUSA found that 51 percent of likely November voters in this state support legalizing and taxing marijuana, while only 41 percent oppose it (8 percent are undecided). A poll two months earlier by the same firm found it passing with 57 percent of the voters. This is also a presidential election year in which a statewide gay-marriage referendum will appear on the ballot, drawing out more of the young, progressive voters who pollsters say are inclined to approve pot legalization.
In nearly all respects—from setting specific new penalties for driving while intoxicated to placing excise taxes at each stage of production—I-502 copies the template we use for alcohol. And unlike other failed pot initiatives that have come before, heralded by pot activists with little money, this campaign has national funding and a credible phalanx of backers. The initiative's sponsor, New Approach Washington, has raised more than $1.1 million thus far and is led by former US Attorney John McKay, Seattle city attorney Pete Holmes, travel icon Rick Steves, and former health department officials and bar association presidents. The campaign is managed by ACLU of Washington's Alison Holcomb, a former marijuana defense attorney, and it has the financing of out-of-state billionaires George Soros and Peter Lewis.
"This has been a reformer's wet dream from 3,000 miles away on K Street," says Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML), sitting in his office in Washington, DC. He says that NORML has endorsed dozens of initiatives since it was founded in 1970—most of them failed, of course—but that this initiative's combination of leaders gives it an unprecedented shot at winning. "I have never seen a better assembled public-relations effort, a better group of local community leaders," St. Pierre says.
But there's a hitch.
"Despite all those good things I just said," St. Pierre warns, "the one thing that stands out in Washington is that there wasn't sufficient buy-in from the existing and important grassroots community."
It's true: The groups that traditionally oppose legalization—conservatives and cops—are not the ones leading the campaign to kill I-502. The people leading the campaign to kill I-502 are, paradoxically, other pot activists—specifically, pot activists with ties to the medical marijuana community: dispensary owners, medical marijuana lawyers, medical marijuana patients, medical pot trade magazines, doctors who give medical marijuana authorizations, etc.
On February 21, they filed a political action committee called No on I-502. Not to be dismissed as a fringe constituency, their campaign has donation pledges from attorneys and doctors, says treasurer Anthony Martinelli. He says the industry of booming medical marijuana dispensaries may also fund his group's fall campaign of television commercials and newspaper advertisements. Even though I-502 doesn't meddle in the medical pot law passed by voters in 1998, the booming medical marijuana industry that's grown up around the medical marijuana rules as they currently exist has a lot of complaints about I-502: that federal courts will strike down parts of it and leave a legal mess, that the initiative's 25 percent excise taxes at each stage of production would be too high, and—again, even though it leaves the medical marijuana law intact—that it will "potentially interfere with a patient's right to grow their own medicine," according to a flyer distributed by THC List, a website that runs ads for 140 local medical marijuana dispensaries. But more than anything, the No on I-502 activists are deeply concerned that a DUI provision in I-502 will penalize medical marijuana patients who drive with active THC in their blood, even a day or a week after the last time they got high. Over the past few months, the DUI talking point has become the opposition's primary line of attack. Martinelli goes so far as to claim that I-502 "will take away driving for all cannabis users."
Put simply, the industry that has benefited from the gray market created by our medical marijuana law passed in 1998 is now circling its wagons to stop an initiative that would legalize pot for everybody else. That's not unprecedented. In fact, it's what happened in California in 2010: The medical marijuana industry—threatened by the prospect of legalization harming their business model—got very vocal in its opposition and helped beat Prop 19 by 47 to 53 percent. Which is why experts like St. Pierre say things like "The medical marijuana industry is driven by profit. It's not driven by compassion anymore. It is driven by the need to make money. Which NORML is okay with, but don't blow smoke up our ass claiming that medical marijuana is the end goal."
For St. Pierre and for pot activists historically, the end goal is complete legalization. But not for Michael Lick, whose dispensary Urban Roots has picked up 1,100 patients since opening in the University District last April. He opposes I-502 because he fears the industry would be quashed, and, believe it or not, he thinks recreational pot users should be punished. "I feel that cannabis is a medicine," Lick explains. "If people are using cannabis without a doctor's recommendation, the same thing should happen as if you were using any medication without prescription... you get arrested for possession." (For the record: If we did treat pot like pharmaceutical drugs used without a prescription, the penalty would become more severe, increasing possession to a class C felony, punishable by up to five years in prison.)
Right now in Washington, pot possession is a misdemeanor punishable by up to 90 days in jail and a $1,000 fine. Cities like Yakima are the norm when it comes to pot enforcement here—not liberal places like Seattle, where we have zero prosecutions per year for possession because voters made marijuana the lowest law enforcement priority and elected a city attorney who refuses to press pot charges. In Washington State, 87 percent of pot arrests in 2010 were for simple possession. Attorney Alex Newhouse handles 30 to 40 misdemeanor pot cases a year in Yakima County District Court, and he says defendants are routinely sentenced to at least a day in jail. The cost of those arrests and prosecutions (not even including jail or probation) reach $23.6 million per year, according to estimates by the Washington State House of Representatives Program Research. (There is no fiscal note yet for I-502, but legislative staff found a similar legalization bill would likely generate at least $240 million per year in savings and new revenue.)
Still, obviously, law-enforcement efforts have been ineffective at deterring marijuana use. Forty-one percent of all adults in the state—2.8 million people—have tried marijuana, according to the state's own research, and there are an estimated 294,000 regular pot smokers. That's more regular stoners in Washington than the populations of Tacoma and Bellingham combined—all facing the daily risk of arrest, prosecution, and jail. Meanwhile, the national pot arrest rate has outpaced population growth. While the country's population grew only 24 percent from 1990 to 2010, pot arrests increased by more than 200 percent in roughly that same time frame. And needless to say, drug enforcement falls disproportionately on African American and Latino communities, even though white people smoke pot at the same rate.
Still, dispensary operator Lick worries that if I-502 passes, "it would cause people to start treating cannabis like an intoxicating drug... and it will hurt what we have done in the medical community to bring this to the patients."
The anti-I-502 campaign was filed chiefly by Gil Mobley, a doctor who operates a clinic in Federal Way that writes medical marijuana authorizations and has the backing of Patients Against I-502, led by the region's leading medical pot lawyers, doctors, and dispensaries around Seattle. Patients Against I-502's advocacy has been led in part by Hempfest director and medical cannabis patient Vivian McPeak, along with marijuana defense attorneys Jeffrey Steinborn and Douglas Hiatt. All except Mobley have direct ties to Sensible Washington, an initiative campaign that twice failed to get a legalization initiative (that contained no DUI provision and zero regulations) to qualify for the ballot.
In Washington State's unlikely turnabout, it's not the conservative right and law-enforcement officials who are leading the charge to stop legalization. It is the progressive left, at war with itself.
This piece isn't about the benefits of medical marijuana specifically—it's about the fight over the rules as they apply to a medical marijuana patient behind the wheel of a car—but there is no question that marijuana is a powerful medicine. In early 1998, the year Initiative 692 to legalize medical marijuana was on the ballot, a friend of mine was spending all his time in his bedroom, strapped into a contraption that looked like a hospital bed crossed with a catapult. He couldn't move much or speak clearly anymore; the disease prevented his brain and muscles from cooperating. Pills from his doctor weren't much help with the pain. But pot helped. After his wife would hold joints up to his lips, he'd giggle at sitcoms and eat soup. With the help of another friend, my job was to descend into the basement twice a week to care for two rooms of marijuana plants, one with smaller shrubs and one with full-sized plants in the budding stage. We'd cut down the stalks, hang them to dry, and trim the dried buds (for all those joints he was smoking). During the last year of his life in his South Seattle bungalow, the man found pain relief. He found an appetite. He laughed.
Helping him was completely illegal at the time—and we were all afraid of getting busted, which is why I'm not naming anyone—but so what? It was the right thing to do.
Initiative 692 passed that fall, thanks less to the yard signs we hammered into the lawn and more to a half-million dollars in contributions from out-of-state donors. But even after its passage, the horrors of medical marijuana busts didn't stop. Seattle cops raided Will Laudanski's Central District apartment in 2010, guns drawn at his head, for two perfectly legal medical marijuana plants. (No charges were filed because there was no crime.) A few years before that, an 8-year-old girl in Washington State named Chandler Osman was sitting in a pickup truck when it rolled backward over her grandfather, killing him, as the old man was trying to fix the trailer, and when state troopers arrived at the scene, they interrogated the girl, found out her parents were medical marijuana patients, and then raided her parents' apartment. I stood in the state Capitol Building last spring, appalled, as Governor Chris Gregoire vetoed a bill that would have at long last sheltered legal patients from arrest (the original medical marijuana law provides only a defense in court).
In short: I've been an activist and a reporter on this beat for a long time. One dispensary operator I interviewed for this article, who was upset by some of my coverage of I-502 thus far, said, "Hopefully in this next article you will disclose your relationship with the ACLU, Holcomb, and the rest."
Fair enough. I know lots of people on both sides of the issue. I worked for the ACLU of Washington with Alison Holcomb, who is now running the I-502 campaign; I was also a Hempfest director along with Vivian McPeak, who opposes I-502; in fact, Vivian and I lived in the same house for four years; I served on the board of NORML for several years alongside attorney Jeffrey Steinborn, who is also campaigning against I-502; I also worked briefly as an employee of the November Coalition, run by director Nora Callahan, who opposes the initiative. If I have allegiances, they're split.
While I supported the medical marijuana law, it's not enough. It's still leaving medical marijuana patients vulnerable to arrests, police raids, and raw abuses of the law. And that medical pot law, as great as it's been, is useless for the vast majority of marijuana smokers who are going to jail by the thousands in Washington for using pot recreationally.
And really, what the hell is wrong with an adult using pot as long as pot smokers aren't, say, stoned behind the wheel?
The fight over the rules for driving is the central debate in I-502, at least on its face. Pot doctors, dispensary operators, and a thriving market of pot-centric publications are consumed with the issue.
Not all of these people want to lock up recreational pot smokers, of course.
Josh Berman, director of 4Evergreen Group, a medical cannabis servicing company that provides patient authorizations and has locations in Tacoma and Seattle, supports legalization, he says, but vehemently echoes the industry's primary concern that it will incriminate patients who aren't impaired but have enough active THC in their blood to get busted.
Approximating the .08 cutoff for blood-alcohol content in drivers, I-502 would establish a cutoff of 5 nanograms of active THC, the psychoactive compound in marijuana, per milliliter of blood. As with alcohol, any driver who exceeds the limit would be automatically guilty of DUI. The blood content is all that's required to convict someone of driving while intoxicated.
Under I-502, Berman said in an e-mail, DUIs for pot "will skyrocket." Likewise, Steinborn, the Seattle attorney, says, "Possession cases will be replaced by DUI cases."
However, the very same scientific study that activists are citing to prove their point contradicts their argument.
The Patients Against I-502 website cites a 2009 study by Erin Karschner and other researchers that Martinelli says "proves that users fail these tests six or seven days after using."
Parsing the science here gets a little thick, but the technicalities are essential for understanding the biggest dispute in a monumental decision facing Washington State voters, so bear with me. The important thing to remember is that I-502 creates a cutoff for drivers who have more than 5 nanograms of active THC per milliliter of blood, or "5 ng/mL." Anyone above that limit would face charges for driving under the influence.
Still with me?
Karschner measured levels of active THC in 25 long-term heavy marijuana users over a seven-day period. "We chose experienced cannabis smokers, aged 21–45 years, reporting multiple years of use," the report explains. The subjects reported consuming anywhere from a dime bag to 10 blunts a day. Researchers found that only one of the participants had active THC levels above 5 ng/mL on "admission (day 1)," the same day the woman may have consumed marijuana, and the rest of the participants had levels lower than 5 ng/mL. The woman with active THC levels above 5 ng/mL had reported smoking four blunts per day. (Holy cow!) However, the day after smoking, her THC levels had dropped to 2.9 ng/mL. Every other participant's THC levels had dropped even lower by day two as well. By day six, the levels were undetectable in most of the participants—and all of them were far below 5 ng/mL. (For the record, this research and the DUI provision in I-502 both concern active THC, not inactive THC metabolites.)
Put simply: According to the study opponents cite, none of the heavy pot users showed THC levels above the cutoff that I-502 would establish for drivers, except for one person on the same day she was admitted.
Critics of I-502 point out correctly, though, that peer-reviewed scientific literature like Karschner's is very limited, and the field of THC measurements is in its infancy. It may seem dull as shit to consider more of the available studies, but this is the leading argument being used to oppose pot legalization, so we'll forge on.
Dr. Stefan Toennes, who authored three studies measuring THC levels in the blood, is based in Frankfurt, Germany. Asked to explain his findings, Toennes wrote in an e-mail to The Stranger, "I think that in almost all cases, THC would be lower than 5 ng/mL blood at latest by 12 hours after use. Since all controlled studies cover only a time range of usually up to 8 hours, there is no data available covering the following hours up to 24 hours. However, in special cases (e.g., very high dose chronic use) I would not exclude times up to 24 hours."
Franjo Grotenhermen, in Heidelberg, Germany, has also written several studies on the subject. Asked by e-mail how long THC may remain in the blood, Grotenhermen wrote back that THC levels are detectable after 48 hours, but generally below the 5 ng/mL cutoff. He added that "regular users may exceed the 5 ng/mL the day after last use or even two days after last use, but not a week after last use." I asked, "Are there any data that show a user above 5 ng/mL after 24 hours, or even 12 hours?" He couldn't cite any—but, again, there is not a lot of data on the subject. The closest he noted was a 2008 report that showed low THC levels in heavy users 24 to 48 hours after last use. The study by Gisela Skopp et al. found that none of them exceeded the 5 ng/mL cutoff. The highest was 6.4 ng/mL of blood serum. (Note: That test measured blood serum, in which THC concentrations are roughly double their levels in whole blood. In whole blood, Grotenhermen explains, the equivalent would be 3.2 ng/mL, well below the cutoff for drivers in I-502.)
In other words, the peer-reviewed scientific research shows that the vast majority of marijuana users would drop below the 5 ng/mL cutoff within several hours of last use. That said, in some rare exceptions of very heavy users, it is possible that THC levels would exceed that cutoff.
Mobley, the doctor running the campaign against I-502, remains unconvinced. He says he conducted his own studies of medical marijuana patients in Washington that show those patients exceeding the 5 ng/mL cutoff the day after a patient's last use of marijuana. He wrote in a comment on The Stranger's blog: "I've conducted my own follow-up on doctor-approved medical cannabis patients wanting to know about their levels. REGULAR USERS that have abstained (observed) for just over 48 hours were noted to have levels around 5 (a mean of 4.7 ng/mL to be exact)." But when asked by The Stranger to disclose details of his findings, Mobley declined to share his research or to comment on it.
As the anti-legalization campaign repeatedly points out, the science on THC and driving is minimal. That's true, and "per se" cutoffs are imperfect. I believe that officers must be required to prove impairment and, in all cases, a driver deserves a court defense. However, while those principles stand, I couldn't find a single scientific study—even after consulting the leading researchers—that showed a user would violate the cutoff if they just waited several hours after getting high before driving.
Furthermore, police officers would still need probable cause to apprehend a driver and take him or her to a laboratory to conduct a blood test. (Officers in Washington cannot currently perform roadside blood tests for THC.) If a person was pulled over and taken in for a blood test without evidence of impairment, attorneys could file a motion to dismiss the case—even if the blood draw went on to show THC levels above the legal cutoff.
But there have been cases in which officers did have probable cause for blood draws. Last year, a woman named Allison Bigelow was pulled over for a broken taillight in Sedro-Woolley, according to Skagit County District Court records. The officer wrote in a police report that he detected "a strong odor of marijuana coming from the vehicle" and "observed her eyes were bloodshot." The woman reportedly told the officer that she had a doctor's note to use marijuana for back pain, but that she hadn't consumed marijuana in more than eight hours. During a field sobriety test, she "lost her balance several times," the police report says, and "she stumbled several times." The woman was then blood-tested at a laboratory, which revealed she had a THC level of 18.3 ng/mL, according to a report submitted to the court by the Washington State Toxicology Laboratory. Bigelow pled guilty to negligent driving in the first degree, court records show, allowing her to avoid the more serious conviction of DUI.
In a 2002 case, a man named Raymond Hill was convicted of vehicular homicide after he lost control of a tow truck and rolled across lanes of I-5, leaving a passenger dead, according to King County Superior Court records. A witness told police that Hill got out of the wrecked vehicle and placed what turned out to be a brass marijuana pipe in the dirt in the median. Hill told officers it had been three days since he'd last smoked marijuana; once in the lab, his THC levels were measured at 5 ng/mL. Hill was convicted of vehicular homicide.
In each case, officers declared that they had probable cause, and a judge seemed to agree.
"If there's not probable cause for impairment, they can't be arrested," says attorney Alex Newhouse. "Smell alone is not enough" for an arrest if I-502 passes, he points out, adding that "no city or county has the resources to do random, roving stops, which are completely illegal. I don't foresee this doomsday scenario the opposition is constantly alluding to."
But while the criticism that pot patients and regular pot users will be arrested en masse for DUIs doesn't seem to pan out, critics of I-502 make an excellent point about drivers under 21. I-502 would establish zero tolerance for any THC in drivers under 21. "Drivers in this age bracket will be guilty of DUI if even the smallest amount of cannabis is found in their system," says the Patients Against I-502 website. In a worst-case scenario, they speculate, "a designated driver subjected to secondhand cannabis smoke would be held criminally liable for the activities of others."
"I-502 doesn't legalize marijuana use for people under 21," confirms I-502 author Holcomb. And it doesn't address authorized patients under 21 who use cannabis for cancer, HIV, etc. Holcomb contends that a debate around the correct levels for driving after consuming marijuana is "relatively new and evolving." She says as science evolves, so can standards for DUI. On the other hand, she says, "Marijuana prohibition is decades old and a proven failure, and it's time to make headway on that front."
But Berman from 4Evergreen says this sets up too many unanswered questions about how many young people will be convicted of DUI and saddled with criminal records. He points out that California's Prop 19 didn't include a THC cutoff for drivers "because these bills were constricted by people who understood that WE DON'T KNOW ENOUGH to set a precedent."
So if we don't know enough to set a precedent, why the controversial 5 ng/mL cutoff?
The first reason is science. The second reason is politics.
The science comes from the abovementioned peer-reviewed studies, through which researchers found that drivers with more than 5 ng/mL of THC have a higher risk for crashes. "At concentrations between 5 and 10 ng/mL approximately 75–90% of the observations were indicative of significant impairment in every performance test," reported Ramaekers et al. in 2006. Likewise, Grotenhermen found in 2005: "The crash risk apparently begins to exceed that of sober drivers as THC concentrations in whole blood reach 5–10 ng/mL." By e-mail, Grotenhermen says that drivers below 5 ng/mL had "no increased accident risk," but that it "considerably increased beyond this concentration." Though he added, "Heavy users may be regarded as impaired when they are not. We are aware of this limitation."
Again, for most users, THC levels drop rapidly after smoking marijuana. Active THC persisting at high levels a day after someone uses marijuana, even someone who depends on medical marijuana, appears highly improbable based on the peer-reviewed science.
As for the politics of the 5 ng/mL cutoff, it turns out that the fatal flaw for California's measure in 2010 may have been that it lacked a DUI provision. In the California voters' guide, the anti-legalization argument read as follows:
Proposition 19 gives drivers the "right" to use marijuana right up to the point when they climb behind the wheel, but unlike as with drunk driving, Proposition 19 fails to provide the Highway Patrol with any tests or objective standards for determining what constitutes "driving under the influence." That's why Mothers Against Drunk Driving (MADD) strongly opposes Proposition 19.
A postelection study by Greenberg Quinlan Rosner Research found that, other than a general sentiment against legalizing marijuana, the fear of people smoking and driving was the number-one reason people voted against the California initiative. Thirteen percent of voters said that's why they voted against it.
As noted by the researchers, "Opponents of reform stumbled onto a very powerful argument and, no doubt, learned a valuable lesson apt to be repeated in future debates. Indeed, the belief that a post-legalization world would lead to more accidents on roads and in the workplace emerged as the most powerful predictor of a 'no' vote—by far—in regression analysis."
The truth is, winning legalization is less about science and more about the politics of public safety. Assuaging fears has been vital to the I-502 campaign's strategy. In rounds of polling conducted by New Approach Washington, the sponsoring PAC behind the initiative, they found voters were reluctant to allow home growing (expensive commodities grown in residential neighborhoods increase the likelihood of robbery) and that addressing the DUI issue is vital. If the initiative doesn't address it, lawmakers probably will.
In Colorado, a pot legalization initiative qualified for the ballot last month even though it lacks a provision concerning DUI. How will Colorado handle stoned drivers? A state senate committee there has now advanced a bill that "expands the existing definition of 'DUI per se' to include driving when the driver's blood... contains 5 nanograms or more of [THC] per milliliter in whole blood." That's exactly the same limit in I-502. In other words, when an initiative fails to address DUI for marijuana, legislatures won't let it slide. Instead, they'll turn to the available science—science that shows driving impairment increases at 5 nanograms. Realistically, if pot activists don't include DUI regulations, legislatures will likely do it for them—either before an initiative passes or afterward. And left in the hands of lawmakers, the result could be far worse: They could establish zero tolerance for drivers, for example. So not only are I-502's critics misreading the science, they're misreading the politics.
They are also misreading the court rulings, says Yakima attorney Newhouse. As it stands, Washington State effectively has a zero-tolerance policy for any THC in the blood. As Newhouse explains it, having represented 5 to 10 marijuana DUI cases per year, any THC in the blood is typically used by a judge or jury as sufficient evidence for a conviction.
"It's easy to convict them now," Newhouse says, "but you have patients driving on the road now and [widespread DUI charges against pot patients] are not happening now. Let's stop speculating."
If anything, Newhouse believes setting a limit will help patients avoid convictions. As the numerous previously cited scientific studies show, most people with low levels of THC are well below 5 ng/mL. "The great majority of DUIs I get are under 5 nanograms," Newhouse says. Yet they are convicted anyway. "I-502 would help them. That is the reality."
As it stands, there are plenty of cases in which suspects are convicted of DUIs for having THC levels far below I-502's cutoff. In Seattle Municipal Court, which handles misdemeanors, there were an estimated 165 to 193 marijuana DUIs filed between January 1, 2010, and the end of September 2011. "There are convictions for no active THC," confirms Kimberly Mills, spokeswoman for the Seattle City Attorney's Office.
And, again, strict DUI provisions will help get I-502 passed. A poll last May by Greenberg Quinlan Rosner Research found that the DUI provision alone prompted 62 percent of Washington voters to say they were more likely to support I-502, and only 11 percent said it would make them less likely to support the initiative.
"I think that most people in the state of Washington would say they do not want someone completely high on marijuana driving on the other side of a yellow line from them," says former federal prosecutor and I-502 proponent John McKay. He adds, "If you are medicated, you shouldn't be driving, someone should drive for you or you should take public transit."
The other thing people bring up every time you talk about legalization is federal law. Everyone is taught in school that federal law trumps state law, and the No on I-502 campaign uses this message, too, saying the initiative "will be rendered invalid almost instantaneously given the fact that the initiative is legally faulty and is absolutely not designed to withstand a federal challenge."
However, Holcomb, a former criminal defense attorney, says it is precisely written to withstand a federal challenge. The question at hand is whether regulating the cannabis market creates a "positive conflict" with the Controlled Substance Act—that is, whether it would require state workers to violate federal law. It doesn't require any illegal activity, she says, and she's ready to ride that argument all the way to the US Supreme Court.
Two cases in California have found medical pot regulation (there is zero difference in federal law for medical or nonmedical marijuana) doesn't have a conflict; a third case said it did. The California Supreme Court has yet to rule on the issue.
Already, of the 16 states that allow medical marijuana, seven require regulation and licensing, most notably New Mexico, where state employees actually inspect the marijuana gardens, Holcomb points out. "While you can argue that regulation at the state level could be challenged in court," she says, "the practical reality is that regulation is already happening."
"All the federal government can challenge is licensing or production and distribution," Holcomb continues. Due to a severability clause in the state's Uniform Controlled Substances Act, any part of a law found invalid doesn't affect the rest of the statute. So even if Washington State lost its regulatory authority in federal court, she says, "we would still have the best decriminalization law"—no fine at all for possession—"in the country."
On a practical level, we don't have to worry about federal law overriding decriminalization. Local governments handle 99 percent of all drug cases; federal law enforcement fries only the biggest fish.
"We don't do simple marijuana cultivation or possession cases, it's just not what our office does," says Jenny Durkan, the US Attorney for Western Washington. She only has 72 lawyers in her office, and they focus on major criminal entities.
"The state has the ability to decriminalize or say something is not criminal activity," Durkan adds. "It still remains a crime under federal law, but we are looking at large-scale conspiracies or organization-based crimes. Usually there is some other federal crime like money laundering or power diversion" before the federal government gets involved. "The organizations we look at are moving drugs and money, if not across borders, then across state lines."
The Drug Enforcement Administration is likewise focused on trafficking. "The DEA is not going after someone smoking a joint," says DEA spokeswoman Jodie Underwood. "It is a violation of federal law, but it is not our focus. Our focus is on drug trafficking organizations."
The DEA won't disclose how many agents it has in Washington State, but sources familiar with the local bureau peg the number at about 200. In total, there are an estimated 1,000 federal agents in Washington to handle drugs, terrorism, immigration, and other federal offenses.
However, Jeffrey Steinborn, a marijuana defense attorney who wants the initiative to die, says federal prosecutors will nix most of I-502. "I truly believe that when this law passes, a legal challenge by the Feds will pretty much void all of it, leaving us nothing but a really bad DUI law," he says, even though the DUI law it would leave us with is arguably better than the current DUI law, which allows for convictions below the 5 ng/mL cutoff. Steinborn adds that no business owners in their right mind would register for a state license because the state would be required to hand over that incriminating list to the Feds.
Holcomb, who used to share a law office with Steinborn, disagrees. First off, federal agents wouldn't require a state list to bust a storefront selling marijuana. There's enough evidence—the store is right there in public, it advertises, customers come in and out all day—to bring a case if prosecutors wanted. (Why would they need a list? When asked, Steinborn replied, "I'll need to think about that.")
But the complaint that federal law trumps local law is an effective tool to erode support. Richard Lee, sponsor of the narrowly failed Prop 19 in California, says the delivery of that message was pivotal to his defeat. "We did see the polling right after the drug czar came to town with that message. It was when we went from winning to losing," he says.
"It's disconcerting when your allies adopt their enemies' rhetoric and polemic," says NORML's St. Pierre in DC. "On top of not being well-founded, it is ringing an unnecessary bell of concern and conflict."
What does a former federal prosecutor think? After all, the primary sponsor of I-502, John McKay, used to have the job that would file the lawsuit to stop such an operation.
"They would have to show that the law requires the state to engage in criminal activity," says McKay. "I don't think there is anything in I-502 that requires that. If they can find a positive conflict in the tax and regulation scheme, then they may have a case to throw out I-502. I don't think they do. I also don't believe the federal government would, even though it does have massive discretion in this area. It would have to say that you, the state, are running a criminal enterprise and we are going to arrest you, starting with the governor. That would be an absurd outcome and not what any reasonable person would expect of this administration or any other administration that follows. And I think that would engender public outcry if the Feds tried to exercise discretion that way."
Even if federal prosecutors did, that may be the best possible thing that could happen to marijuana law reform in the United States. Just as the Prop 8 trial in California promoted national discussion about gay marriage on its way to the Supreme Court, pot legalization would escalate as a pressing national issue, the sort of issue that's debated in the New York Times, CNN, local news outlets, and dining rooms across the country.
That's not a drawback—that's the goal.
"If we have to get into a fight with the Department of Justice, then we'll have a full airing of the issues," Holcomb says. "We'll have a close look at the costs and benefits of sticking with the status quo or trying something new. And we'll no longer have to say that's the way it is. We'll be looking at the question of how it could be."
McKay, the former federal prosecutor, was appointed to that position by the George W. Bush administration, though he's now left the GOP. He doesn't smoke pot, although he wants pot legalized for all adults. For him, it's about cutting off air to international cartels. "People are getting shot and killed over the American marijuana market," McKay says. "The real problem with marijuana policy is the black market. It is responsible for pits in Mexico being opened with 40 bodies in it, or bodies being dumped in Guadalajara. The cartels are fighting over the proceeds of the American marijuana market. Sixty percent of their income comes from American marijuana sales."
That's in addition to the pot we grow ourselves. Domestic marijuana is the nation's top cash crop with $35.8 billion in annual domestic pot revenue, according to a 2006 study by Jon Gettman. Washington's pot crop (second only to Washington's apple crop) is one of the five largest in the United States, clocking in at just over $1 billion a year.
"That means the money is not being captured, in fact, it's just being exploited by criminals," McKay says. "That's the real danger."
NORML outreach director Russ Belville agrees with McKay, although with much angrier rhetoric toward the medical marijuana activists who now take issue with full legalization. When medical marijuana activist Mimi Meiwes wrote in a comment on The Stranger's blog that full-legalization advocates want to make medical marijuana patients "sacrificial lambs now, so you can have a little bit of smoke in your pocket," Belville wrote back that
while you and other states' medical marijuana patients have been largely left alone while smoking copious amounts of weed, 13 million Americans have been arrested for marijuana and 50,000 Mexicans have been murdered (10% of them beheaded/tortured) and left in the streets with banners taunting law enforcement. Juarez's entire 2,600 man police force just had to move out of their homes and into a highly secured hotel with their families because of drug gang assassinations that killed five cops as they came home from work to their families.
But the cartels, which are constantly moving cocaine north and marijuana south through the I-5 corridor, are not talked about much in the local debate. Other issues—the prices pot would reach when taxed, the fact that I-502 has out-of-state contributors, the strict liability standard about DUI—are far more present on people's minds. But big money and legal compromises aren't insane, historically: They have been key to the marijuana movement's success up until now, success that includes the proliferation of medical marijuana dispensaries. The medical marijuana law passed in 1998, thanks to Americans for Medical Rights funneling more than half a million dollars into Washington State for things like TV commercials and glossy mailers. That was funded largely by Soros and Lewis, the same people behind I-502. Thanks to their dough, 58 percent of voters legalized medical marijuana that year. Now they are back to tackle more of prohibition.
After being marginalized for decades, the pot-legalization movement is finally positioned to win. Yet now that the institutional leaders who the countercultural grassroots have been courting for decades are actually on their side, the countercultural grassroots are starting to act a little... paranoid. True, the medical marijuana industry has valid complaints on idealistic grounds—everyone should be allowed to grow pot at home, taxes on gardens seem dumb, DUI suspects deserve a strong court defense to prove they weren't impaired—but many of the fears they are spreading appear unsubstantiated upon practical scrutiny. Trustworthy studies don't show "all" pot smokers—even heavy smokers—would lose their right to drive. They show users drop below the THC cutoff several hours after smoking pot and people above that cutoff have a greater risk of crashing. Medical marijuana rules for growing and using wouldn't change at all (it's worth remembering that the dispensary market technically isn't even legal under state or federal law as things currently stand). And while taxing pot would subject the industry to potentially Byzantine regulations, that simply puts it on equal footing with lots of products: Name a valuable commodity that isn't micromanaged (alcohol, tobacco, fuel... even corn). We're not allowed to distill gin at home either, remember?
"Rest assured that not all patients and people involved in the medical marijuana business are against this initiative," says Muraco Kyashna-tocha, director of Green Buddha Patient Co-op in Ravenna. "I am completely in support of the initiative. I believe that we need to legalize marijuana. It's completely insane for it to be illegal when a huge portion of this state is already using it. The economic boon to the state would be incredible. Having that sort of support for the economy would be phenomenal."
Why does Kyashna-tocha think so many dispensary operators are against I-502? "People in dispensaries and the medical marijuana industry could find themselves in positions where they are fiscally fragile. If this initiative passes, Green Buddha could go out of business, because what would be the need for a medical marijuana dispensary? But I believe that the help for the economy would be such that people could find a job in some other business" or working in some other capacity within the marijuana industry. "I believe there will be other jobs available."
Even if you take all the anti-I-502 concerns seriously, it still comes down to a choice: continue arresting thousands of pot smokers annually or take the risk on an unproven drawback for a small handful of drivers pulled over with active THC in their blood. The choice will be simple for most voters on the other side of the highway yellow line.
Then again, if I-502 fails, it won't be until 2016, the next presidential election year, that a progressive enough electorate will line up at the polls for pot legalization. So that's about 40,000 more pot arrests in Washington—again, a disproportionate number of them racial minorities—and more bodies dumped in Guadalajara, while activists wait for their perfect initiative, the type of compromise-free, idealistic progressive legislation that is unlikely to ever pass. Alcohol laws aren't perfect, either, which is why lawmakers and the liquor board tweak them every year. Rules for a regulated marijuana market stand to be equally fluid.
And by the way, medical marijuana dispensaries are better situated than any other entities to become the licensed pot growers, distributors, and store operators that I-502 foresees for Washington State. Those businesses already have the mechanisms in place, the know-how, and the expertise—all of which they've built without any kind of arrest protection in place. If the primary goal is protecting medical marijuana patients, there's only one initiative qualified for this November's ballot that would protect them from arrest: I-502.
This article has been updated since its original publication.