Richard Nixon and Ronald and Nancy Reagan would be watching this White House with a smug sense of satisfaction. Not because of President Donald Trump's coziness with Russia, or his cavalier attitude about sexual assault, but because of the Trump administration's views on drugs and criminal justice. It's hard not to imagine all these old white people in a chorus line together celebrating locking people up for using cannabis.
Trump has not spoken explicitly about cannabis policy since he took office in January, but he told a joint session of Congress last week that "drugs" are "poisoning our youth." His administration has shaken the confidence of the legal weed industry with statements suggesting punitive action toward recreational weed. White House press secretary Sean "Spicy" Spicer told reporters two weeks ago that the Trump administration saw medical marijuana as a "very, very different subject" than recreational marijuana. Subsequently, he said the Department of Justice would start a "greater enforcement" of existing federal cannabis laws. Asked for specifics, Spicer referred reporters to the Department of Justice.
The head of the Department of Justice, Attorney General Jeff Sessions, spent his first two weeks as the nation's top law-enforcement official expressing an interest in restarting the war on drugs. He has reportedly told some senators in private that he won't crack down on legal weed, but his on-the-record statements have been consistently threatening toward states with recreational cannabis. He told attorneys general from around the country last week that he found it "troubling" that from 2010 to 2015, federal drug prosecutions declined by 18 percent. He promised that "under my leadership at the Department of Justice, this trend will end." He also said last week that "experts are telling me that there's more violence around marijuana than one would think" and that he was "definitely not a fan of expanded use of marijuana."
Let's be clear here: "Greater enforcement" of federal drug policy and a resurgent war on drugs means locking people up for drug use, including weed use. While states like Washington have spent the last two decades slowly relaxing weed laws, the Trump administration's views on weed have not advanced passed the Reagan era. Current federal law has a 15-day mandatory minimum jail sentence for someone convicted of their second misdemeanor possession charge. Get convicted of having one gram of cannabis twice, and a federal judge is forced to send you to jail for at least 15 days.
The effects of such policies, which Sessions praises with a small smile and his Southern drawl, are well documented. From 1980 to 2008, the US prison population quadrupled—it went from about 500,000 inmates to 2.3 million. Our country's incarceration rate is not only the highest in the world, it's a statistical anomaly. We imprison people at five times the world's average incarceration rate, and African Americans are jailed at nearly six times the rates of whites. A study in 2012 showed that black people in Washington State use less marijuana than white people and yet are arrested for marijuana at 2.9 times the rate of white people.
There are still 226,027 misdemeanor marijuana possession convictions and 10,765 felony cannabis convictions in the Washington State Patrol's database, according to records obtained by The Stranger.
Almost 30 years after Reagan left office, we are only just starting to dismantle the racist drug policy system's legacy. President Barack Obama's administration worked at the federal level to reduce drug charges—hence that drop in drug prosecutions that terrifies Sessions—and Washington State's passage of I-502 legalizing weed in Washington in 2012 certainly helped, eliminating future weed arrests in this state. But it did nothing to address the decades of harm caused by our state's cannabis laws of the past.
Some Washington State lawmakers are trying to change that, and they introduced a bill this year to make it easy for anyone with a misdemeanor marijuana possession conviction to clear their record of that crime. After all, misdemeanor possession is no longer against state law. Oregon passed a similar law two years ago, but Washington's version has an uphill fight in Olympia.
While the federal government appears emboldened by the idea of locking more people up for using cannabis, it's worth wondering: Are we hearing the last yelps of the dinosaurs of the war on drugs, or the roars of a racist ideology coming back from the verge of extinction?
Washington State governor Jay Inslee and Attorney General Bob Ferguson have put themselves on the national stage in their opposition to Trump's agenda. Their lawsuit against Trump's ban on immigration from seven majority-Muslim countries effectively knocked out the president's executive order after it prevailed in US District Court and Appeals Court.
Inslee and Ferguson are also fighting to preserve local laws when it comes to cannabis. They sent the Trump administration a letter in February making the case for our state's legal pot industry. Within hours of Spicer's threat of "greater enforcement" of federal cannabis laws, Ferguson issued a statement vowing to "use every tool at our disposal to ensure that the federal government does not undermine Washington's successful, unified system for regulating recreational and medical marijuana." That's a strong statement from an attorney with a 2–0 record against the Trump administration, but the only problem is, this time the law is not on Ferguson's side.
If Sessions or Trump wanted to start enforcing federal weed laws today, they could immediately start charging the cannabis industry's growers, retailers, budtenders, bankers, accountants, and casual smokers with federal crimes.
US representative Adam Smith, who represents parts of Seattle, Bellevue, and Tacoma, said that fact is worrying. "In the plain language of the law, if the federal government wants to come in and start busting marijuana shops, we are somewhat at their mercy," he said. "And that is very, very concerning."
Obama's Department of Justice issued the Cole Memo and the Financial Crimes Enforcement Network (FinCEN) issued a guidance, both aimed at placating nerves in the legal weed industry. The Cole Memo, signed by US deputy attorney general James Cole, told states with legal weed that the federal government would adopt a hands-off approach to federal cannabis laws if states followed a few guiding principles, namely keeping weed out of the hands of kids and profits away from organized crime. The FinCEN guidance, issued by the Department of Treasury, told the banking industry that banks would not be prosecuted for money laundering if they opened accounts with cannabis businesses, as long as those businesses were compliant with the Cole Memo.
But those are guidance memos, not laws. They establish no legal precedent and can be rescinded at any time by the current administration.
Sam Mendez, the former executive director of the University of Washington's Cannabis Law and Policy Project, said it would only take a simple injunction, a legal order to cease activity sent from Sessions to Washington State, to shut down the I-502 industry.
"They could just shut it down by legal means. This is an industry and state regulatory system that at its fundamental level is based on an illegality," Mendez said. "So that's their legal mechanism right there."
There is one law protecting medical cannabis businesses from federal action. The Rohrabacher-Farr amendment to the federal budget bars the Department of Justice from spending any money investigating medical cannabis businesses, but a 2016 federal court ruling narrowed the protections of that amendment to strictly medical transactions. It's unclear whether it would apply to Washington's pot industry, where the medical and recreational systems have been combined into one.
"The Rohrabacher-Farr amendment doesn't offer much help to most 502-licensed businesses because few of those businesses are likely to be limiting their sales to medical purposes," said Alison Holcomb, the former ACLU attorney who wrote the text of the I-502 law. "As long as a business is selling cannabis to a person using it for nonmedical purposes, it is fair game for a DEA investigation."
Trump has the law behind him if he cracks down on legal pot, but there are still daunting challenges standing between Trump and a wholesale attack on our legal weed system. To start, weed has never been more popular in America than it is right now. A recent poll found that 71 percent of Americans think Trump should not go after states that have legalized cannabis, and 93 percent of Americans support medical cannabis laws.
Since Trump is already on the line to deliver an unpopular border wall and repeal an increasingly popular health-care law, most people don't see this as a fight he would want to pick.
"It's hard to predict what Trump does around politics and policies given how inexperienced he is, but we do know that he cares a lot about public image and public opinion. This is not going to be something that is going to look very good," Mendez said.
And weed's popularity has generated a huge industry around it. There are thousands of pot farms and pot retailers operating in the 28 states where weed has been either recreationally or medically legalized, and prosecuting that many individuals and firms would require an immense number of lawyers and law-enforcement personnel. The federal government relies heavily on local law enforcement to carry out drug-enforcement raids, but because cannabis is legal under state law, local cops can't be used to shut down the industry.
"Think of how many hundreds or even thousands of businesses are out there operating. If they were going to go after all of those businesses, that would take thousands of pages of paperwork," Mendez said.
It would be much easier for Sessions to investigate individual businesses that he believes have violated the parameters of the Cole Memo. Aaron Pickus, a spokesperson for the Washington CannaBusiness Association, said the trade group is advising its members to closely follow the state's laws.
"Right now, we are emphasizing how important it is to make sure you are following the rules as set by Washington State," Pickus said. "Make sure you are dotting all your i's and crossing all your t's and following best practices to make sure that minors aren't getting into your store."
Individual enforcement against certain businesses would be better than wholesale destruction of the industry, but the Department of Justice would still be picking a fight with some well-connected individuals. In this War on Drugs II, the dealers aren't marginalized people operating in the shadows—they are mostly white, male, wealthy businesspeople. It's probably easier for Sessions to lock up a poor person who doesn't look like him than to lock up a bunch of rich guys with millions in their bank accounts. And Congress, never one to miss out on a wealthy constituency, recently created the nation's first Congressional Cannabis Caucus to stand up for common-sense weed laws.
Plus, if state leaders and industry leaders and weed's powerful allies in Congress can't team up to scare Sessions away from touching our legal pot, our state could push the button on the so-called "nuclear option." As we previously described in The Stranger, we could technically erase any mention of marijuana from our state's laws, effectively legalizing and deregulating pot, and giving Trump a huge nightmare when it comes to keeping drugs away from kids and cartels.
That's all to say, it's unclear what will happen. The path forward for Trump shutting down legal weed is as clear as Spicer's response to a follow-up question on what he meant about "greater enforcement" of cannabis laws. He said, and I quote: "No, no. I know. I know what I—I think—then that's what I said. But I think the Department of Justice is the lead on that."
He added, "I believe that they are going to continue to enforce the laws on the books with respect to recreational marijuana."
If you ask Holcomb, who is often called the architect of I-502 because she wrote the successful initiative, why we need legal weed, she will point to one issue.
"The point of I-502 was to stop arresting people for using marijuana," Holcomb said. "And I-502 was the right vehicle at that time to move us in that direction, and depending on what happens now, we may have to move in an entirely new direction. But the North Star is the same North Star: Don't arrest people... because they use marijuana or grow it and want to share it with others."
Thanks to Holcomb's initiative, the state has spent the last five years doing exactly that: not arresting people for cannabis crimes. But bad laws take a long time to stop affecting people. Punitive Reagan-era laws still haunt people who were caught in the war on drugs dragnet, and I-502 was a proactive law, meaning it did not address any of the thousands of people who were previously charged with cannabis crimes. As for those 226,027 misdemeanor marijuana possession convictions mentioned earlier, the ones still in the Washington State Patrol's database, each one of those drug convictions continues to haunt the people carrying them, according to Mark Cooke, an attorney with the ACLU of Washington.
"Criminal conviction records allow others to discriminate against that individual in different contexts, including employment, housing, and education," Cooke said.
It may seem like in this modern, weed-friendly world, a misdemeanor possession charge doesn't mean much, but that is not the case. The types of background checks that many employers or landlords use lack specificity. Applications often ask if you have been convicted of any drug charges, according to Prachi Dave, another attorney for ACLU-WA.
"Frequently the question is 'Do you have any drug related activity convictions?' So a prior marijuana conviction could certainly fall into that category, which means a lot of people could be excluded from housing or employment," Dave said.
Someone carrying a misdemeanor possession charge can ask a court to clear their record, but there are a number of different reasons a judge could deny that request. Representative Joe Fitzgibbon, who represents West Seattle and Vashon Island in the state legislature, wants to change that. He introduced a bill in Olympia this year that would require courts to automatically expunge a person's misdemeanor marijuana conviction upon request.
"Currently, there are a bunch of caveats, but even if they meet all of the caveats, the judge can still say no," Fitzgibbon said. "The bill would make it much easier for someone with a misdemeanor marijuana possession to vacate their record."
Oregon passed a similar law in 2015, but Fitzgibbon's bill failed to make it out of committee in Olympia this year. He's introduced a version of this bill every year since 2012, when voters legalized adult possession of cannabis here. The current bill won't get another chance until next year.
Fitzgibbon said he will keep fighting for the law. "I think it's about fairness and about second chances. The voters of the state very clearly said that they didn't think possession of marijuana should be a crime," Fitzgibbon said.
Kevin Oliver, executive director of the Washington chapter of NORML, said his organization plans to step up its lobbying for the bill. "We have a lobbyist on the ground full time, our new PAC is raising money and we're going to start throwing it at these legislators, and I think that might make a difference," Oliver said.
If they act quickly, they might be able to clean up the beach before this second war on drugs sweeps in.