Collaboration in Civic Spheres

A bright future for Mom ‘n Pop pot shops in Washington?

by Matt Rosenberg November 14th, 2012

It’s entirely possible the U.S. will just chillax on possible prosecutions for marijuana use allowed in states now to include Washington, where voters last week approved medicinal or recreational adult use of an ounce or less starting in a few weeks, and levying a 25 percent tax on authorized sales once rules are adopted. But anything much like a big industrial marijuana sales operation with a state’s OK is likely to get the gimlet eye from federal prosecutors. These are among the key suggestions in a new report from the Congressional Research Service issued late last week after Washington and Colorado voters liberalized their state marijuana laws.

Officially, it’s not clear yet what the federal response will be to Washington’s Initiative 502, which passed by an 11-point margin. As the Seattle Times reported last week, options include contesting individual usage under U.S. law, or challenging the very concept of licensed sales, which will ensue from state guidelines issued a year from now. But the CRS report, which is national in scope and accents key U.S. Justice Department documents, quietly suggests the feds may be looking for a nuanced middle ground in states such as Washington.

Although 18 states and the District of Columbia now allow the use marijuana for medical purposes, in apparent violation of the U.S. Controlled Substances Act, the federal government is limited in its ability to prosecute by the principle of states’ rights embodied in the Tenth Amendment to the U.S. Constitution, CRS legislative attorney Todd Garvey writes in the new report to Congress.

Further, court decisions on state legalizations of marijuana so far have not upheld the constitutional principle of pre-emption, which says state laws conflicting with federal laws are void. The report says federal prosecutors have wide “discretion” on taking action against individuals for breaking U.S. law by using pot in states which have passed decriminalization laws.

This was underscored by a 2009 U.S. Justice Department memo directing its prosecutors to focus more on broad marijuana sales networks than on tokers in compliance with state law. A 2011 Justice Department memo re-emphasized that they’re not keen on “large-scale, privately operated marijuana cultivation centers,” which remain “subject to federal enforcement action, including potential prosecution.”

Similar to the conclusions in the CRS report, the Seattle Police Department in a blog post after passage of I-502 says though it is aware U.S. law bars pot use, officers will follow the new state law which takes effect early next month, by not arresting individuals for possession of an ounce or less. Such arrests had already been a low priority since a related advisory referendum passed by Seattle voters in 2003, but officers welcome the additional clarity provided by I-502’s passage, notes the SPD blog post’s author Jonah Spagenthal-Lee, a former staff writer for the Seattle alternative weekly The Stranger.

However the department will still regard as illegal the unlicensed sale or growing of marijuana, and driving a motor vehicle under its influence. By December 1, 2013, the state’s liquor control board is to set rules for sales and distribution of non-medicinal marijuana.

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