The scene is set for a legal showdown between the federal government, at least two states, and activist groups in the wake of the success of landmark votes to legalize marijuana in the 2012 election. And for the first time, public opinion on pot is overwhelmingly against the feds.
Plenty of coverage was generated after Washington state and Colorado became the first states to fully legalize the recreational use, possession and distribution of cannabis via constitutional amendments, measures that eclipsed the handful of medical marijuana laws in place. With no direct response from the federal Department of Justice since November, the first of the measures are now going into effect, a landmark moment of state-level defiance of Washington not seen since Prohibition.
Marijuana was officially decriminalized in Washington state on Thursday, with state officials still unsure of how they’ll be able to regulate pot and recreational users finally able to enjoy their “hobby” in public, without fear of arrest; Seattle police were given reminders not to apprehend citizens for what used to be pot-related criminal offenses.
People openly lit joints under the Space Needle and on Seattle’s sidewalks — then blew the smoke at TV news cameras. To those looking to “get baked,” the city’s police department suggested pizza and a “Lord of the Rings” movie marathon.
What, exactly, is going on in Washington state?
Marijuana possession became legal under state law Thursday, the day a measure approved by voters to regulate marijuana like alcohol took effect. It prompted midnight celebrations from pot activists who say the war on drugs has failed.
While pot fans wait for an answer, they are partying. Though Washington’s law prohibits smoking in public, about 200 gathered under the Space Needle for a New Year’s Eve-style countdown to midnight. A few dozen gathered on a sidewalk outside the north Seattle headquarters of the annual Hempfest celebration and did the same, offering joints to reporters.
“I feel like a kid in a candy store!” shouted Hempfest volunteer Darby Hageman. “It’s all becoming real now!”
The Seattle Police Department emailed its 1,300 officers, telling them not to write any citations for smoking pot in public until further notice. A voter initiative passed in 2003 made marijuana enforcement the department’s lowest priority, and for years officers have looked the other way while thousands light up at Hempfest.
Open jubilation at a new era in the “war on drugs” may prove to be short-lived. Some state officials in Washington and Colorado opposed to the citizen-initiated ballot measures from the start, have expressed a willingness to comply with any federal directives shutting the legalization movement down. But others are vowing to take a stand for states’ rights and take on the government if they choose to act.
The fact remains that marijuana possession and distribution is still a federal crime, and many aspects of the new state laws won’t be up and running for months, leaving pot enthusiasts in a dangerous legal limbo that could lead to an enormous crack down by federal officials.
Hints at just that have been issued by the Obama administration, with the New York Times reporting that top officials at the Justice Department and in the White House, spurred on by law enforcement lobbyists, are already preparing legal action against Colorado and Washington. At the current pace, legal pot is an endangered product.
Even in the midst of international crises, the “fiscal cliff,” and the buzz of a presidential reelection, high-level meetings have been held within the administration carefully plotting strategies to “undermine” the voter-approved laws and quietly use the brunt of federal law to crush any chance of a nationwide legalization movement.
Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.
Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.
Marijuana use in both states continues to be illegal under the federal Controlled Substances Act. One option is to sue the states on the grounds that any effort to regulate marijuana is pre-empted by federal law. Should the Justice Department prevail, it would raise the possibility of striking down the entire initiatives on the theory that voters would not have approved legalizing the drug without tight regulations and licensing similar to controls on hard alcohol.
Some law enforcement officials, alarmed at the prospect that marijuana users in both states could get used to flouting federal law openly, are said to be pushing for a stern response. But such a response would raise political complications for President Obama because marijuana legalization is popular among liberal Democrats who just turned out to re-elect him.
While there has still not been an official reaction from the president or the administration since the election, a blunt statement from the lead United States attorney in Washington State reminding citizens that federal laws banning marijuana are still in effects has been promoted by the White House.
The Obama administration declined to comment on the deliberations, but pointed to a statement the Justice Department issued on Wednesday — the day before the initiative took effect in Washington — in the name of the United States attorney in Seattle, Jenny A. Durkan. She warned Washington residents that the drug remained illegal.
“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance,” she said. “Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law.”
If President Obama follows through on these subtle threats to take out state pot laws piecemeal, he will be going against surprisingly homogeneous public opinion that marijuana ought to be legalized and that the feds should not act against states that legalize it unilaterally. Voters that just reelected him by a reasonably comfortable margin are firmly opposed to the president on the question of drug policy.
A slew of recent national polls found that legalized marijuana has consistent majority support among Americans, and the idea of letting states set their own pot laws has even greater support, nearly 2-to-1.
After campaigning in 2008 on a platform that was perhaps the most liberal of any major presidential candidate towards marijuana in modern political history, President Obama has made an abrupt about face once he settled into the White House. He complained about wasting federal resources on minor drug crimes as a candidate, but now the president has overseen the most aggressive federal operation against marijuana users and dealers — even rounding up those in possession of medical marijuana in states where medical pot is legal — in the sullied history of the “war on drugs.”
Some claim that Obama’s dramatic pot policy shift and his impending — and unprecedented — action to thwart state-level legalization efforts threatens to forever tarnish his presidential legacy.
Well, since they’re asking: if they decide to treat the law-abiding citizens of Colorado and Washington as dangerous felons; if they decide to allocate their precious law enforcement powers to persecuting and arresting people for following a state law that they have themselves just passed by clear majorities; if they decide that opposing a near majority of Americans in continuing to prosecute the drug war on marijuana, even when the core of their own supporters want an end to Prohibition, and even when that Prohibition makes no sense … then we will give them hell.
And it will get personal. The president wasn’t just once a pot-smoker, he was a very serious pothead. His own life and career prove that this substance is no more potentially damaging to a human being than alcohol, which is not only legal but marketed to us with abandon. The future coalition he has built – especially its Millennial base – will splinter. Maybe even some libertarian Republicans will seize the issue and champion federalism consistently for a change.
But the main reason the president should instruct the Justice Department that this is not an area for discretionary prosecution is that choosing to focus on pot-prohibition in states that have legalized it defies reason. One of my core arguments for Obama has long been his adoption of what I consider pretty reasonable, if always debatable, policies. He is not an extremist, proposing laws and regulations that are designed to make a cultural point or wage a cultural war; he’s a pragmatist, trying to fix existing problems.