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February 22, 2013

"Pot on the patio? Colorado's 'surreal' path to legalizing marijuana"

The title of this post is the headline of this lengthy and interesting new Christian Science Monitor article.  Here are some extended excerpts:

In the wake of the decision by voters in Colorado last November to legalize recreational marijuana for adults, the question of how to actually integrate legal pot into the practical, and often bureaucratic, realities of modern American life has fallen on two dozen Coloradans.

By the end of the month, the Amendment 64 Implementation Task Force must submit a report to the Colorado Legislature that lays out its suggestions for how the state should regulate legal marijuana.  It has been a curious process.

On one hand, the task force has considered new rules for what Colorado should do when it inevitably becomes a center of "pot tourism," it has debated whether smokers can use their backyard patios to light up, and it has considered how to deal with "marijuana clubs" that will appear.  Yet, at the same time, marijuana use remains illegal according to federal law, and the Department of Justice may step in and try to invalidate everything the task force has done.

In a time when as many as 25 states are considering pro-marijuana laws, what Colorado does could be broadly significant.  How it converts a massive black market into what experts call "problematic adult commerce" on the fringes of society -- akin to gambling, drinking, and go-go clubs -- all amid lingering legal concerns, could provide a framework for other states to follow.

So far, the results from the task force point to legal marijuana regulations that in many ways mirror regulations on alcohol and tobacco yet, because of the drug's unsettled legal status, are in some ways distinctly separate.   "We made an industry out of cigarettes, we made an industry out of alcohol and now we're creating an industry out of marijuana -- frankly, it's surreal sometimes," says task force member Mary Beth Susman, president of the Denver City Council.  "We're making rules about an activity that is illegal according to the federal government, and sometimes we're making rules that in the normal course of events would be illegal themselves in order to stay under the radar of the federal government."

So far, the Obama administration has kept its hands off the emerging experiments in Colorado (and Washington State, where voters also approved a ballot initiative that legalized pot), though it could be waiting until the Legislature formalizes new pot laws. That's expected by May 8.

Last November, 55 percent of Colorado voters approved adult use of marijuana, meaning that the state would regulate the cultivation and sale of marijuana while allowing legal possession of up to 1 ounce per person.  As caveats, the referendum allows towns and municipalities to opt out of retail marijuana sales and extends criminal and civil liability to smokers who drive high.  The law also allows the state to collect hefty new taxes from license production and retail sales that will go toward state education funds.

Nationally, a slim majority of Americans now support legalization of adult use of marijuana, up from 10 percent in 1971.  Some 100 million Americans have tried the drug at least once, 25 million have smoked in the past year, and 14 million are regular users, according to surveys by the US Department of Health and Human Services

Colorado, a pioneer state with heavy libertarian leanings, has become a major destination for free-spirited young Americans. This makes it an apt legalization laboratory, suggests Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws (NORML).  Colorado has already led the way in setting up separate taxation and code enforcement for medical marijuana dispensaries, which the state approved in 2000. Today, there are more dispensaries in Denver than there are liquor stores.

Moreover, the Amendment 64 task force's work comes as a growing numbers of states and even Congress begin seriously deliberating medical marijuana and decriminalization. According to NORML, 10 states are proposing outright legalization bills, 15 are eyeing medical marijuana bills, and five are considering industrial hemp bills.  In total, 25 states are considering more than 45 separate pro-marijuana proposals.  On Thursday, Maine lawmakers introduced a Colorado-style bill that would legalize and regulate marijuana to allow adults to use it for recreational purposes.

"Colorado is going to be our first vetting, and they're going to have to go set the standard for a good part of the country on everything from public safety, workplace impairment, custody of children, and defining public use," says Mr. St. Pierre.

That fact has steered the task force's work down peculiar pathways, says Ms. Susman. Some questions are proving difficult to answer.  One, she says, is how the state deals with legal smokers who light up in front of children.  Other issues include how to appease insurance companies with clear financial interests in the health of consumers, government and law enforcement's responsibility to keep the public safe, and the role of making sure consumers have incentive to use the drug responsibly.

Part of the challenge will be to prove to the federal government that the state is solving a societal problem, not creating or fueling one. "If the task force members are savvy, they will try to create a regulatory structure that's going to draw the least attention from the federal government as possible," says Rob Mikos, a law professor at Vanderbilt University in Nashville, Tenn....

Ms. Susman says she's caught herself many times during task force deliberations pondering the enormity, and sometimes absurdity, of its task.  For example, by setting a very low cap on how much marijuana an out-of-state visitor can buy -- say an eighth of an ounce -- the state can make it prohibitively expensive for drug dealers to use the state as a source.  "If they're going to resell it, they'd have to pay retail 128 times to buy a pound," she says.  "Discussing something like that makes me almost want to giggle."

I continue to give this legal reform storm considerable attention because I strongly believe that the success or failure of the legalization experiment in Colorado over the next few years could have a profound impact on national drug policies and criminal justice systems.  Especially if advocates of marijuana reform are effective at documenting that the tangible benefits of regulated pot legalization in Colorado outweigh the tangible costs, I think it will be that much easier for these advocates to promote significant reform efforts in other states and at the federal level.

Importantly, I expect that advocates for pot reform in Colorado and elsewhere should have an easier time, at least in the short-term, highlighting tangible benefits from legalization than will opponents be able to pinpoint tangible costs.  Proponents of reform should be able to point quickly not only to significant new tax revenues, but also to related job creation and business development resulting immediately from the legalization of a product with significant demand among folks with significant resources.  In contrast, because the harms of increased pot use (like increased alcohol use) tend to be long-term, opponents are likely to have little other than the occassional drugged driving anecdote to use to highlight legalization's costs.  In addition, many state officials and business leaders in Colorado should, at least initially, be more invested in making legalization work than in advocating for a return to prohibition.

If I am right that reform advocates can and will report lots of early "success" with legalization in late 2013, then it seems likely that local, state and national pot policy becomes a very big issue is the 2014 election cycle.  And if swing state Colorado has continued "success" with legalization in a few years, it seems possible (perhaps even likely) that some or all of the mainstream candidates who run for President in 2016 will be on the side of reform at the federal level rather than persistent prohibition.

February 22, 2013 at 09:35 AM | Permalink


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Couldn't the feds charge all of the members of the Amendment 64 Implementation Task Force as being persons who are engaging in a "continuing criminal enterprise" under 21 USC 848?

Posted by: ? | Feb 22, 2013 12:38:58 PM

Meanwhile, Arizona makes it possible for marijuana users (medicinal or otherwise) to be charged with a DUI even if they are not impaired. http://azcourts.gov/Portals/0/OpinionFiles/Div1/2013/1%20CA-SA%2012-0211.pdf

Posted by: Bryan | Feb 22, 2013 5:28:19 PM

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