Voters in Colorado and Washington made history on Election Day. For the first time ever, a majority of voters decided at the ballot box to abolish cannabis prohibition.
In Colorado, 55% of voters approved Amendment 64, a constitutional amendment that allows those age 21 or older to legally possess up to one ounce of cannabis and cultivate up to six cannabis plants in the privacy of their home. In Washington, 55% of voters decided in favor of I-502, which removes statewide criminal penalties for adults who possess up to one ounce of cannabis for personal use. Longer term, both measures seek to enact regulations governing the state-licensed production and sale of marijuana for adults.
Yet, even in the short term, both votes are game-changers. For starters, both measures provide adult cannabis consumers with unprecedented legal protections. Until now, no state law has defined cannabis as a legal commodity. Some state laws do provide for a legal exception that allows for certain qualified patients to possess specific amounts of cannabis as needed. But, until now, no state in modern history has classified cannabis itself as a legal product that may be lawfully possessed and consumed by adults.
Why is this distinction important? Consider this: In California, the state that is considered by many to possess the most liberal medical marijuana laws, police (and state law) define cannabis, even when present in only minor amounts, as contraband. This means that the presumption of law enforcement and prosecutors is that a person possesses or cultivates cannabis unlawfully. The burden, therefore, is on the would-be defendant to establish that they are legally exempt under the law as a qualified patient. In some cases, this might mean showing proper paperwork to a police officer. (The arresting officer may or may not choose to accept this paperwork as legitimate.) In other instances, it may entail having to prove one’s case in a court of law. Either way, the mindset of the state is clear: cannabis is illegal — unless it can be established otherwise.
Not so under Amendment 64 and I-502. Rather than presuming cannabis to be illicit, and that those who possess it are engaged in illegal activity, passage of these measures mandate law enforcement and prosecutors to presume that cannabis is in fact legal, and that those who possess it in personal-use quantities are engaged in legal activity, unless the state can show that there are extenuating circumstances proving otherwise (e.g., a person possessed a greater quantity of cannabis than is allowed under state law).
Moreover, since up to one ounce of cannabis will no longer be classified as an illicit commodity under state law, police will have no legal authority to seize it from lawful adults. This is just the opposite of the reality that exists now, even in the 14 states that have “decriminalized” cannabis (replaced criminal sanctions for possession with civil fines). In all of these instances, police must seize the cannabis they encounter from the consumer — through the use of force, if necessary — even in cases where they are merely issuing a civil citation.
Finally, reclassifying cannabis under state law limits police from going on “fishing expeditions” when they encounter it in “plain view” — such as in someone’s home or car. Since marijuana is not contraband in Colorado and Washington, police in those states will no longer have sufficient cause to engage in a further search of the area because, legally, no criminal activity has taken place.
Of course, it is possible that the federal government, which continues to define cannabis as an illegal commodity that is as dangerous as heroin, will try to use its limited resources in these states to prosecute marijuana possession offenses under federal law. But such a scenario is hardly plausible. Right now, the federal government lacks the manpower, political will, and public support to engage in such behavior. In fact, rather than triggering a federal backlash, it is far more likely that the passage of Amendment 64 and I-502 will be the impetus for the eventual dismantling of federal pot prohibition.
Like alcohol prohibition before it, marijuana prohibition is a failed federal policy that delegates the burden of enforcement to the state and local police. How did America’s “noble experiment” with alcohol prohibition come to an end? Simple. When a sufficient number of states — led by New York in 1923 — enacted legislation repealing their alcohol prohibition laws. With state police and prosecutors no longer engaging in the federal government’s bidding to enforce an unpopular law, D.C. politicians eventually had no choice but to abandon the policy altogether.
History is now repeating itself. Are those inside the Beltway paying attention?
About the author: Paul Armentano is the Deputy Director for NORML, the National Organization for the Reform of Marijuana Laws, and is the co-author of the book, “Marijuana Is Safer: So Why Are We Driving People to Drink? (Chelsea Green, 2009).