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August 11, 2012

"Marijuana Legalization Ballot Shows To Be Favored By Colorado Voters"

The title of this post is the headline of this notable new report on a notable new poll from the state which may soon become known as the highest state for a new reason.  Here is how the story starts:

Public Policy Polling released a new poll this week showing that likely voters in Colorado are in support of Amendment 64.

Colorado Amendment 64 is an amendment to Article 18 of the Colorado state constitution. If the amendment passes, it will permist a person 21-years of age or older to consume or possess limited amounts of marijuana.  The intent of the amendment is for marijuana to be regulated in a manner similar to alcohol.

The new survey presented by PPP was of 779 likely Colorado voters.  The Huffington Post reports that the survey, conducted between the dates of August 2nd and August 5th, shows that 47% would vote for Amendment 64 to pass if the election were held right now. 38% of the voters would vote against it, and 15% of voters remain uncertain in their decision.

Back in June, the PPP conducted a similar poll. The votes for passing Amendment 64 barely outpaced the opposition 46 percent to 42 percent.  Now two months later, support for the amendment has grown to 47-38.  According to PPP, the reason for this are the independent and young voters who are increasingly in favor of legalization.

As I have suggested in prior posts, Colorado is shaping up to be ground-zero for debate and discussion about pot policy.  These new polling data, and especially the apparent affinity that independent and young voters have for pot legalization, confirms my belief that national candidates in both political parties would be wise to develop ASAP a nuanced set of policy positions concerning how the federal government might respond if (and when?) this Colorado ballot initiative were to pass.

Some recent and older related posts on pot policies and politics: 

UPDATE:  Another state to watch on this front is Washington, and here is a notable new AP article on its marijuana reform ballot initiative.  The piece is headlined, "Legalizing marijuana could bring in $2 billion for Washington," and here is how it begins: "The state's latest financial analysis says legalizing and taxing marijuana could bring Washington as much as nearly $2 billion over the next five years — or as little as nothing."

August 11, 2012 at 11:56 AM | Permalink

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"...national candidates in both political parties would be wise to develop ASAP a nuanced set of policy positions concerning how the federal government might respond if (and when?) this Colorado ballot initiative were to pass."

Here is the "policy position" set forth by Article II for the conduct of the President: That he shall "take care that the Laws be faithfully executed." I don't think "faithfully executed" means "executed as the opponents of those Laws would like, namely, minimallly or not at all."

So a constitutionally respectful policy would be for the next President to say: "There is much controversy about whether marijuana should be legalized. Reasonable people are on both sides of that debate. At present, marijuana is forbidden under federal law. If and when Congress changes the law, I will respect that change whether I agree with it or not. Until Congress acts, however, I will faithfully execute it, as the Constitution directs."

I understand that fidelity to the text of the Constitution is considered anachronistic in some quarters. Fine with me. It's what I teach my class, and will continue so to do when school starts back up in three weeks.

P.S. Polling for Prop 19 in California also showed it ahead at about this stage, before it cratered when the actual voting took place.

Posted by: Bill Otis | Aug 11, 2012 12:55:14 PM

Bill,

But the laws, as set by Congress, also place monetary limits on executive agencies. If a President were to fully enforce the drug laws with respect to marijuana, he would have to do so at the expense of enforcing other federal laws. This places him in the same position that you condemn as he wouldn't be enforcing those laws to the fullest extent. It simply is not economically feasible to go after every person who possess or grows their own marijuana, especially in states that legalize it providing no local law enforcement support.

The President is therefore very much within his constitutional powers to make policy decisions on what laws to focus on in enforcement. And it is hardly unreasonable to suggest that out of the ridiculous amount of federal laws (a problem created by Congress) marijuana possession and home grown for home use is among the least serious and harmful to society. This means a choice to limit the enforcement to trafficers and sellers outside of state regulated medical marijuana dispenseries is a sound decision regardless of viewpoint on the propriety of the law itself.

This doesn't show a lack of fidelity to the Constitution. If anything it is Congress's doing. If we are to hold the President to the exacting standard you read the Constitution to require, we must also hold Congress to the standard of authorizing adequate funding to enforce the myriad of crimes they enact. Congress doesn't do this, largely because such an appropriation of funds would require ridiculously high taxes or a defecit that would make Greece shocked. The President, therefore, is being faithful to the Constitution by faithfully executing those laws which pose the greatest harm even if that means it is cost prohibitive to enforce lower level ones.

Posted by: Matt | Aug 11, 2012 1:20:17 PM

I agree with my amigo bueno Bill Otis in fight against Colorado try to legalize marijana. We fight to the death. This will hurt my big business of distributing marijana in U.S. My family, my amigos, my power WILL SUFFER. No more Mercedes. No more haciendas. I Will continue to pay your politicians to FIGHT AGAINST this very BAD idea. La lucha continua. Viva Las Cartels Mexicanas!!! Viva La Marijana Illegal!!

Posted by: Pablo Miranda Escobar | Aug 11, 2012 1:44:52 PM

Matt --

So let's see if I got this right. "Faithfully executing" the laws actually means "ignoring the ones you don't favor."

That's cute, I guess, but it bears no relation to the actual definition of "faithfully."

As I said, take it up with Congress. The pro-dope side couldn't even pass the Hinchey Amendment; indeed, they don't even offer it any more. You may view pot as harmless, but until you sell that view to the House and Senate (and you haven't in forty years), and they act on it legislatively in the ways you prefer, the opinion of those who never would have passed the CSA to start with does not define the executive's obligations in enforcing it.

Posted by: Bill Otis | Aug 11, 2012 3:29:10 PM

Pablo --

If you don't get your money selling pot, you'll get it selling cocaine (or, more correctly, selling more cocaine). You'll also move into the even more lucrative human trafficking business.

Unless, of course, we should legalize cocaine and human trafficking as well. I assume you'd like that too. Why wouldn't you?

Posted by: Bill Otis | Aug 11, 2012 3:35:51 PM

Mi amigo Bill Otis, Te saludo mucho! "human trafficking" no-no; that is very bad--HURT PEOPLE. Pablo never hurt people (unless you, how you say, betray me). But, si, I tambien distribute cocaine--much cocaine--it is how you say, very lucrative?? I agree with you cocaine must stay ILLEGAL--I fight to death to keep cocaine illegal--and alwasy send much money to help fight . La lucha continua--COCAIINE Y MARIJANA MUST STAY ILLEGAL. So Pablo and his friends grow fat and rich--I LOVE MY MERCEDES--NEXT WEEK I BUY ASTON MARTIN--WITH PROFITS FROM STUPID AMERICAN GRINGO LAWS. VIVA MEXICO! vuva cocaaine; viva marijuana!!

Posted by: Pablo Miranda Escobar | Aug 11, 2012 3:55:31 PM

Bill

"So let's see if I got this right. 'Faithfully executing' the laws actually means 'ignoring the ones you don't favor.'"

That's not what I said. My analysis had no indication whether I am for or against criminalizing marijuana. My statement that marijunana possession is not as harmful to society as most federal laws is undeniably true even if you think it should be criminalized.

What you failed to realize, is that my analysis was based on the fiscal ability. Congress determines how much agencies have at their disposal. That is a law set by Congress under their spending power. Unless you believe that Congress is giving every agency enough money to "faithfully execute" every law that Congress has enacted, then choices need to be made through no fault of the executive agency. And if you do believe that they give enough money then I don't know what to tell you. They clearly don't. Nor could they without taxing everyone at a ridiculous rate. So there will be laws that aren't pursued as hard as others because not every law can be fully enforced from a fiscal point of view. And that blame goes to Congress, not the President of anyone in the executive.

But you can keep ignoring this point if you want.

Posted by: Matt | Aug 11, 2012 3:58:20 PM

Pablo --

Somehow, I just don't think you care about hurting people. I think you'll hurt (or kill) anyone who gets in your way, which is why you'll be into cocaine and human trafficking or anything else you think can make you some dough.

For that matter, given what you say, shouldn't we also legalize heroin and meth? Hey, look, there's LOTS of moola to be made there.

Posted by: Bill Otis | Aug 11, 2012 4:17:39 PM

Bill Otis, I think Pablo has the better argument; your position puts him in the same bed as you. Yuck! Best to move out. Prohibition proved the point. Like alcohol and tobacco, better to legalize, regulate, and tax than prohibit. As Prohibition conclusively proved, the latter just succeeds in making scum like Pablo rich and keeps them laughing at us. All your logical and moral arguments in favor of keeping these drugs illegal are refuted by experience.

Posted by: Onlooker | Aug 11, 2012 4:23:44 PM

Just to echo Matt:

Bill if, as you envision, the Obama administration fully enforces federal marijuana laws against all who violate them, which laws would you suggest that they choose not to enforce? Surely the DOJ's budget is not even close to large enough to enforce all federal laws against all federal law breakers. In fact even if we were to dramatically increase DOJ's budget, there would still be millions of instances in which federal law were broken that we wouldn't have enough resources to prosecute.

Choosing to increase enforcement of some laws necessarily means choosing to decrease enforcement of others. So as we choose to dramatically ramp up the marijuana prosecutions, which ones should we enforce less?

Posted by: dm9871 | Aug 11, 2012 4:26:54 PM

Onlooker, you write: "As Prohibition conclusively proved, the latter just succeeds in making scum like Pablo rich..."

You write good thing until you say Pablo "scum." I look up. is very bad word. I hurt. No like Onlooker mas. Tu no es mi amigo. Where you live?

Posted by: Pablo Miranda Escobar | Aug 11, 2012 4:34:12 PM

"The President is therefore very much within his constitutional powers to make policy decisions on what laws to focus on in enforcement. And it is hardly unreasonable to suggest that out of the ridiculous amount of federal laws (a problem created by Congress) marijuana possession and home grown for home use is among the least serious and harmful to society."

This.

Also, I'm cracking up reading Pablo's posts.

Posted by: Guy | Aug 11, 2012 6:06:00 PM

onlooker, etc. --

The game isn't that hard to figure out. The Left, having newly discovered the virtues of (selective) frugality, now decides that "faithfully execute" means "ignore" -- ignore, at least, laws they were unable to persuade Congress not to adopt in the first place. Exactly the same argument is being raised about the death penalty: We can't have it, even though it's on the books, because we can't afford it.

We are able, however, to afford other items in the Left's agenda, to the point that we'll borrow trillions to finance them. My, my.

I'm not that naive. As Pablo says, with a candor you might do well to emulate, cocaine will be next, followed by heroin, meth and the whole boatload.

Frugality is a makeweight. The swoon for pot is about the desire to get high, just as the swoon for abolitionism is about the desire to see society forfeit its backbone. The procedural ploy enlisted to bring the Left's agenda into being is, quite appropriately for those with no particular use for the Constitution, to read "faithfully execute" into oblivion.

You made this same we-can't-afford-it argument in Congress, seeking to repeal the CSA. Having gotten blown out there, you seek to finesse your Congressional failures by making the same argument in only a slightly different form to the executive branch.

When I see some genuine advocacy here for reining in the runaway entitlement state, which as you can't help knowing is the real source of our money problems, I might start to think differently. Until then, I'll continue to think the obvious: That the real reason people speak up for dope is not that they want to save money, but that they want to get blasted.

Posted by: Bill Otis | Aug 11, 2012 6:16:42 PM

Bill,

"Until then, I'll continue to think the obvious: That the real reason people speak up for dope is not that they want to save money, but that they want to get blasted."

Well that is your problem. You think everyone that isn't up in arms about it is for the same reason.

The fact that I continually brought up the "ridiculous" amount of federal laws, and talked about how the money issue is Congress's doing, I would think is a good indication that my problem is with Congress and the amount of laws it enacts. That would paint me not as a leftist but a libertarian. That isn't confined just to enacted laws but the amount of spending going on in general by the federal government.

But you wish to ignore the arguments and assume what you want. In the previous post by our good professor you said this: "I tend not to go with my feelings, since people (you, me and everyone else) often "feel" what they would like to be true, rather than what's actually out there." That is what you just did. Even those that argue for decriminalization have different reasons. Some want to get high. Some think it is a matter of state concern not federal concern. Some think government should stay out all together. Personally I fall in the second category.

The idea that it is "obvious" everyone in here advocating that the President is perfectly within his powers to enforce the laws as he is or to decriminalize just wants to get high is frankly absurd. As I said there is more than one reason people advance. The reason people aren't discussing all the things wrong that cause the money issues is because that isn't relevant to this topic or indeed the topic of this blog. Yes there are a lot of things wrong, but what is the relevance of that here. Do you really come to a blog on sentencing and punishment to discuss policy on social security? Or Medicare? Or any other entitlement program out there? Most people have the capacity to confine their discussion to the topic being discussed. It doesn't make sense to talk about how the entitlements having gotten out of control in a post about the Presidents enforcement decisions on marijuana. Does the entitlement problem affect the President's decision? Of course. Money affects a lot of decisions. But it serves no purpose to come in here an lament the governments handling of entitlements. It makes even less sense to blame the executive for a problem Congress has created. Congress created the money issues and the executive has to deal with that. That requires some selective enforcement.

None of this changes my argument. There isn't enough money to fully enforce every law enacted by Congress. That leaves the President and the rest of the executive to make choices, whether you like it or not. You tell us to take it up with Congress, when in fact it is you that has to take it up with Congress. You have to get them to either cut spending elsewhere to free up money for enforcement or get them to bring in more money. Otherwise the executive's hands are tied.

Posted by: Matt | Aug 11, 2012 9:48:27 PM

Matt --

1. "Well that is your problem."

I don't have a problem. I am roughly satisfied with what is going on now, which is that dope is de facto legal, but de jure illegal and subject, when users are caught (a tiny percentage of the amount of actual use) to minor penalties.

It's your side that seems to have the problem, which is why you're insistent that "faithfully execute" actually means "completely ignore."

2. "You think EVERYONE that isn't up in arms about it is for the same reason [emphasis added]."

No I don't, as previous posts of mine have made clear.

3. "That would paint me not as a leftist but a libertarian."

You might want to look at the big government company you're keeping.

4. "But you wish to ignore the arguments and assume what you want."

You don't know me and you can cut out the high-handed pretense. You think I take lectures from people who hide behind anonymity? Is that how you think it works?

I don't ignore your arguments, I just don't buy them, or at least I don't buy them to the extent you want me to. Neither does the majority of the public.

5. "The reason people aren't discussing all the things wrong that cause the money issues is because that isn't relevant to this topic or indeed the topic of this blog. Yes there are a lot of things wrong, but what is the relevance of that here."

When the government's asserted lack of resources is constantly fronted here as the reason for the executive to tank enforcement of drug laws, then that lack of resources and the real reasons for it is very much at issue, and I will discuss it with or without your permission.

Talking about drug enforcement as if it were the fiscal problem -- when that is patently false -- is not something I'm required to go along with. The government's lack of resources has next to nothing to do with ANY kind of law enforcement. It has to do with runaway entitlement spending. It's beyond silly to look to the molehill while ignoring, and demanding that I ignore, the mountain.

6. "You tell us to take it up with Congress, when in fact it is you that has to take it up with Congress. You have to get them to either cut spending elsewhere to free up money for enforcement or get them to bring in more money. Otherwise the executive's hands are tied."

But your whole complaint is that they AREN'T tied, and that the executive continues, even if only minimally, to enforce the drug laws.

Posted by: Bill Otis | Aug 11, 2012 10:54:24 PM

Bill's boilerplate, rules-are-rules bromides notwithstanding, it's unquestionably true that it would be cost prohibitive for the feds to enforce the thousands of criminal/regulatory statutes get-tough, grandstanding ass-clown politicians have cranked out over the past 40 years.

Has a budget cycle passed in that same four decades that hasn't seen an attorney general/FBI chief cajole Congress for more money, agents, stuff...to enable DOJ to bust all the citizens it's hankering to bust? I don't think so.

The cost-benefit calculation in deciding which crimes to prosecute seems readily apparent to anyone paying attention: violations that generate the biggest, most prominent headlines get the most attention.

So apparently what's really important is that it at least appear as though the DOJ is out there saving us from evil...as opposed to rigorously and tirelessly and devotedly upholding the ideals of the Constitution.

Posted by: John K | Aug 12, 2012 9:42:46 AM

Matt --

On reconsideration, I think my last comment was overly aggressive in tone. You actually strike me as one of the more thoughtful, and certainly more polite, commenters here, although I doubt we agree on much.

In this area, I have one big agreement and one big disagreement. The former is that relatively fewer resources should be used to combat personal use of small amounts of pot. This is already federal policy, at it was when I was an AUSA. The reasons for the low priority are the ones you state: The harms involved are down the scale of harms federal law enforcement deals with.

The area of disagreement is in your assessment of budgeting. The budget is not a zero-sum game in which money spent on X has to be taken from Y. Nor do taxes have to raised (in the short run). If this administration has proved anything, it's that money can and will be borrowed to finance whatever the executive wants. If we can go trillions in debt to dole out the bucks to Solyndra, et. al, we can also go into debt to finance whatever DOJ program the administration wishes to push.

Posted by: Bill Otis | Aug 12, 2012 9:48:53 AM

Bill,

Thank you for this post above. I recognize that issues like this can get heated, so it's no worries.

As to where we disagree, I don't think we do disagree. I wasn't clear and did omit that option. I understand it isn't a zero sum game and you are absolutely right that the government could borrow more money to provide for DOJ enforcement. Although again borrowing money is for Congress (Article I Section 8 clause 2). The reason I didn't bring it up, which was my mistake, is that whatever it would take to fully enforce would have to be increased even more as we'd need to pay interest on that money as well. And we already have far too much in debt to borrow money for this purpose. In my view it isn't worth it.

I will also admit that my feelings on whether marijuana should be criminalized certainly informs my opinion that going further into debt to enforce it is a bad decision. At that same time I fully agree, that the debt issue is far more attributable to other entitlements and expenditures, many of which I don't think are necessary. So too is the DOJ's budget stretched by having to enforce (as best it can) far too many criminal statutes and regulations.

Pretty much everything about the federal government has gone to far. From expenditures to criminalization of everything just so they can say they are tough on crime.

And just to make sure I am clear. They should enfore federal laws on marijuana trafficing. And while you mentioned it in response to Pablo I want to be clear on my feelings on other illegal narcotics. I personally feel that the federal government shouldn't be in the business of criminalizing possession. That is a wholly local activity that should be in the province of the state. I am for state governments doing that if they choose, but not federal. At the same time the harms are certainly greater whith harder drugs and do think they are different than marijuana. So with the possession being criminalized I do think they should be enforced (for the reasons you've been arguing that it is the executive's job to enforce the laws of congress).

Posted by: Matt | Aug 12, 2012 10:42:37 AM

Matt --

Thank you for your graciousness. And I suspect you're right -- we agree more than we disagree. For example:

"And we already have far too much in debt to borrow money for this purpose. In my view it isn't worth it."

Bingo. Indeed, I would go further. We have far too much debt to borrow for ANY purpose. We have shamefully mortgaged our children's future to pay for our own consumption. It has to stop.

"Pretty much everything about the federal government has gone too far."

Bingo again. The government we have now bears no resemblance to what the Framers envisioned. The culture of dependency, whining and grievance-mongering is out of control.

I am not a libertarian, obviously, but I am a libertarian sympathizer.

Posted by: Bill Otis | Aug 12, 2012 11:43:25 AM

The closest I have ever seen marijuana come to harming anyone was during an air drop. We brought in 1100 pounds from Jamaica and dropped it in a peanut field in middle Georgia. The bales were dropped from a small plane at 125 feet altitude. One of the bales, about 80 pounds, missed my compadre by only a few feet... but it surely messed up his truck.

You can read about it in: Shoulda Robbed a Bank

It is my contribution to helping point out just how ludicrous our pot laws truly are.

Posted by: FlyingTooLow | Aug 12, 2012 12:02:53 PM

Flying TooLow:

"how ludicrous our pot laws truly are."

No, laws against marijuana very good--keep me and my amigos and family very very rich--BIG haceiendas--and Mercedes--and beautiful womans--JOIN BILL OTIS AND ME--keep marijuna illegal!

Posted by: Pablo Miranda Escobar | Aug 12, 2012 12:34:25 PM

Pablo --

You never answered my question whether you think meth and heroin should be legal. Do you?

P.S. Isn't the real source of your money the people who buy dope? And if they stopped buying it, your money would dry up, wouldn't it?

Posted by: Bill Otis | Aug 12, 2012 2:07:08 PM

Bill Otis says "You never answered my question whether you think meth and heroin should be legal. Do you?

P.S. Isn't the real source of your money the people who buy dope? And if they stopped buying it, your money would dry up, wouldn't it?"


Como no!! Meth and Heroin MUST remain ILLEGAL. I join you, amigo, in that also. and SI, the source of my money is those who buy and use drugs---OF COURSE. I LOVE THOSE PEOPLE. IS, AS ROMENY AND OBUMMA SAY--A MARKET. MYSELF, I NEVER USE-IS STUPID--BUT PEOPLE ARE STUPID, NO?

Posted by: Pablo Miranda Escobar | Aug 12, 2012 3:17:35 PM

I went to the local Home Depot to buy some spray paint last week. I was very surprised when I was required to give my date of birth. If I hadn't looked so old, I probably would have had to confirm it with documentation. It was entered in a data base - no doubt government.

We have an endless capacity to scare ourselves silly and the media loves to help us along. Government buraucrats jump on the band wagon getting into the frey for more authority and power to regulate and control our lives. This all adds up to more money and control and less freedom.

Posted by: beth | Aug 12, 2012 4:18:09 PM

Pablo --


Thanks for answering.

Do others here hold the view that meth and heroin should be legalized, thus to deprive Pablo of his black market money (but knowing, as Pablo does, that these drugs are extremely addictive and dangerous)?

And do others here share the view that Pablo's money would dry up if only folks would refrain from buying his wares?

P.S. Yes, Pablo, some people are stupid, and some of us think it's wrong for either the government or anyone else to exploit their stupidity.

Posted by: Bill Otis | Aug 12, 2012 4:29:55 PM

beth --

Did you try telling them that they didn't need your DOB to sell you a can of paint? If they said they had to have it, I just would have told them that I'll buy my paint elsewhere where they're not so nosy.

P.S. My guess is they wanted it to put on some marketing list so you could receive a lifetime of unwanted emails.

Posted by: Bill Otis | Aug 12, 2012 5:21:09 PM

Bill, You can believe that they were thouroughly questioned about the purpose and what data base it went to. That's my basic personality flaw. I think the states on a controlled substance tear.

Posted by: beth | Aug 12, 2012 6:00:04 PM

I think the issue here is marijuana, not heroin or meth, so it would do just to focus on that. I think marijuana should be legal.

Though a majority appears to think marijuana is less horrible than various things that are legal, the move to such a sane policy is not readily available. So, some lesser best we can do policy is advisable, including token punishments (generally enforced) for possessing minor amounts. And, exceptions for medicinal marijuana, at least a local option for that sort of thing. Those who support these measures would be part of a coalition, only some of whom wishes things went further.

There was a time when opiates and so forth were generally legal in this country but heroin et. al. are criminal for reasons that are not stupid or anything. OTOH, just locking up drug users (putting aside Pablo's foot soldiers) doesn't really seem to be a sound policy either. In fact, it seems to hurt society more in the long run. De-criminalization here need not be legalization. Note that part of the reason something like heroin is dangerous is because of criminalization, including of clean needles to use the drug.

Broad libertarian philosophy, we allow many things that are very dangerous to users themselves, including drinking to excess. We don't criminalize alcoholics going to bars. But, as with the death penalty and any number of subjects, we need not address absolutes here. The argument is marijuana. It should not be illegal and second best, it should be less illegal.


Posted by: Joe | Aug 12, 2012 8:25:16 PM

(generally enforced) should be "generally unenforced" ... spell check error.

Posted by: Joe | Aug 12, 2012 8:26:54 PM

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