States Considering Limited Legalization of Marijuana under Federal Government’s Glare

October 23, 2012

by Jeremy Leaming

Recently during a debate over Colorado’s Amendment 64 to legalize a limited amount of marijuana possession, supporters and opponents fretted over the kind of attention the state would garner if the measure passes.

Happy Haynes, an opponent of the measure, warned that other businesses would likely turn away from the state and that the law would attract, as The Denver Post put it, “unwanted marijuana tourists.”

Haynes said, “The idea of any dollars that we get are OK; I’m not if favor of swelling our state coffers … with money because people are getting high.”

But proponent Betty Aldworth shot back, “The notion that Colorado’s brand would be negatively impacted by Amendment 64 is not supported by any careful analysis. It’s ‘Reefer Madness’ scare tactics.”

But beyond how the state is perceived if the legalization measure is passed is hardly the only thing that Colorado should be concerned about.

The state already has a robust medical marijuana industry which, as a recent “60 Minutes,” segment noted faces hurdles because of a federal law that categorizes marijuana as drug more dangerous than cocaine. (The segment noted that Denver alone has 204 medical marijuana dispensaries “roughly three times the number of Starbucks and McDonalds combined.”)

Seventeen states and the District of Columbia have laws providing for medical marijuana use and along with Colorado, Washington and Oregon are also considering limited legalization of marijuana.

Sam Kamin, a law professor at the University of Denver, told “60 Minutes” that the Controlled Substances Act categorizes marijuana as drug as harmful as heroin and that while the federal government may say it is tolerating the states that have legalized medical use of marijuana it is still making “it very difficult for these folks. It’s doing it through the banking regulations.” Essentially federal authorities have warned banks that they could be prosecuted under the Controlled Substances Act if they work with medical dispensaries, such as providing loans.

Boulder County District Attorney Stanley L. Garnett, however, told the CBS News broadcast that there is no interest within the community to expend resources on going after medical marijuana dispensaries.

“This community has made it very clear that criminal enforcement of medical marijuana is not something they want me to spend any time on,” Garnett said. “It is not an issue.”

But Kamin says the current system is unsustainable. “We can’t have a multi-million dollar industry built on criminal conduct.”

The U.S. Court of Appeals for the D.C. Circuit is considering a case challenging the Drug Enforcement Administration’s mystifying refusal to reclassify marijuana so it could be used legally for medical reasons. But until and if that case is resolved, voters in states considering whether to legalize marijuana will be confronted with the fact that federal law still trumps the states’ treatment of marijuana.

Jonathan P. Caulkins, Angela Hawken, Beau Kilmer and mark Kleiman provide a guide to legalization in an article for The American Interest.

In the section, “State-Level Legalization in the Face of Federal Prohibition,” the authors concede that a “federal-state ping-pong match could play out in so many ways, and the political calculus for politicians is so complicated, that it is extremely difficult to predict what will happen.”

They nonetheless provide extensive examination of scenarios that could unfold if the measures in Washington and Colorado are passed. The authors conclude, in part, that the debate over marijuana legalization “has droned on for decades,” and too often with the underlying notion that “legalization is a simple yes/no question, but different legalization scenarios differ in important ways.” Their guide is aimed at helping the voters in Washington and Colorado cut through the rhetoric to reach informed decisions.