This guest post is by Jeffrey Steinborn, a Seattle attorney who has defended marijuana clients for decades. He opposes Initiative 502, which would legalize, tax, and regulate marijuana. —Eds
Initiative 502 is a law enforcement sting in plain sight. Read it before you support it. Although the mandatory DUI conviction at 5ng of active THC per milliliter of blood is troubling and possibly unconstitutional, the inevitable federal preemption of this initiative, along with its provisions requiring mandatory self-incrimination make it a dangerous illusion. Remarkably, this untenable initiative has already hijacked the support of much of the cannabis reform movement.
Here are some undisputed facts:
1. Washington State's proposed initiative I-502 centers around a plan to legalize cannabis by having the state Washington State Liquor Control Board (WSLCB) license and regulate cannabis commerce.
2. I-502 specifically instructs the WSLCB to cooperate with federal law enforcement.
3. When the state legislature passed a similar bill earlier this year, legalizing and regulating cannabis commerce, but only for medical marijuana, the United States Attorneys for both districts in the State of Washington responded instantly to an inquiry from Governor Chris Gregoire regarding the conflict with federal law. Within 24 hours these US Attorneys had consulted with Washington, D.C. Their response: Anyone who participated in that scheme could face the full spectrum of federal prosecution and asset forfeiture. The governor then vetoed all provisions of the legislation that appeared to place state employees in danger of prosecution.
4. The federal government is currently aggressively prosecuting persons who are in apparent compliance with state cannabis law in several states, including Washington. See, for example, Dale Gieringer's November 7, 2011 post.
These are undisputed facts. What’s wrong with a state law that attempts to legalize and regulate cannabis through a system requiring that participants register with the state or be licensed by the state? In the most recent litigation of the issue of confidentiality of state-held records, a federal magistrate judge called the idea delusional.
Confidential records held by state authorities can and will be subpoenaed by federal law enforcement. Below are excerpts from U.S. v. Michigan Department of Community Health, United States District Court, Western District of Michigan, Case 1:10-mc-00109-HWB Doc #23 Filed 06/09/11. Michigan adopted a medical-marijuana law that included registration provisions. The law provided confidentiality for those who registered. The DEA subpoenaed those records. The federal judge who heard the case not only upheld the validity of the subpoena, he ridiculed the people who had imagined that a state law could trump the federal law in his ruling:
When Michigan adopted the [Michigan Medical Marihuana Act] with its confidentiality provisions, it, of course, only changed Michigan law. The very text of the MMMA recognizes that “federal law currently prohibits any use of marijuana” (MCL § 333.26422(c)). Thus, anyone who is not deluding himself or trying to push an agenda knows that the confidentiality provisions are only binding on the State of Michigan and its agents, not the federal government and its agencies. (At page 12 of slip opinion).
At page 13 of his opinion, the judge continues:
The nationwide federal law against marijuana, and the nationwide federal organizations that enforce that law, were the same the day after Michigan adopted the MMMA as they were the day before. They did not go away. Thus, no reasonable person can expect to have a right of privacy from federal investigation when they violate federal laws. The MMMA card affords its holder no greater cloak of privacy than did the emperor’s new clothes. To believe the contrary is simply to close one’s eyes to reality. But when you open your eyes, the emperor is still naked; the elephant is still in the room.
I have great respect for those who support this initiative in Washington State. I respectfully suggest that they read it. If anyone, having read the entire initiative, and having considered the recent history of similar attempts both in Washington and elsewhere, still believes that I-502 proposes a plan that will entice state employees to ignore the warnings of our United States Attorneys and face the full spectrum of prosecution, or will entice those engaged in cannabis commerce to put their names on a list that must be turned over upon the demand of any federal agency, then they should support I-502. In doing so they should consider the fact that a number of the most dedicated and experienced cannabis law reformers in the state feel that I-502 will not effectively legalize cannabis, but instead will make things worse for everyone, while sapping necessary energy from real reform—and all this at a time when the public is ready for it.