[Ed. Note: This is part 2 of Sensible Washington's multi-part analysis of I-502.]
Safe access is an issue that affects patients and non-patients alike. Without legal cannabis, there can be no safe access. That’s typical with decriminalization, where possession isn’t a crime, but manufacture and delivery is.
In Part 1, we explained how I-502 would allow for the state-licensed cultivation, processing, and sale of cannabis. Here, we explain why such a distribution scheme will never see the light of day. It’s possible we’d get to keep the provision allowing an ounce for personal use, but the storefront model is a house of cards in a windstorm.
It’s too bad. As spelled out in Section 28 of the initiative, the tax revenue could have funded things like substance-abuse prevention, community health care, and—crucially—our best hope for a scientific assessment of I-502′s own per se DUI standards.
We won’t see a dime.
The Supremacy Clause of the U.S. Constitution states that when there’s a conflict between state law and federal law, federal law wins. A top-notch explanation of federal preemption was posted last year on the Questionland Seattle website by I-502’s own campaign director (and co-author of the initiative), Alison Holcomb:
“(W)hat would happen if Washington decided to bring marijuana production and distribution under a regulatory system—in a manner similar to alcohol, for example. Such a system would most likely require someone to break federal law (depositing sales tax in a bank would constitute money laundering, for example) and therefore be vulnerable to a federal preemption challenge. But how would the political landscape change? Might a state’s expression of its willingness to try something different from our failed experiment with marijuana prohibition catalyze change at the federal level?”
Catalyzing change at the federal level sounds pretty good, but unlikely. This year alone, we’ve seen the Feds shut down licensing schemes in California’s Mendocino County and in Rhode Island. So far, the “enraged electorate” theory has not panned out.
We have previously urged people not to apply for a license under I-502; a signature would constitute an iron-clad confession to federal crimes. Fortunately for prospective applicants (and unfortunately for those spoiling for a federal showdown), preemption is a non-issue.
As Sensible Washington co-founder and NORML Board of Directors member Jeffrey Steinborn explained in a guest post to The Stranger’s Slog, Washington State employees won’t go for it. You can’t compel someone to commit an act that’s illegal under federal law. From Rolling Stone (2/16/2012):
Federal prosecutors in Washington State went even further, threatening state employees responsible for implementing new regulations for pot dispensaries. U.S. attorneys sent a letter to Gov. Christine Gregoire, warning that state employees “would not be immune from liability under the Controlled Substances Act.” Shocked by the threat – “It subjected Washington state employees to felony criminal prosecution!” – Gregoire vetoed the new rules.
It’s impossible to say what court challenges would follow. Perhaps the state employees’ union would get involved. I-502 might be found to be in violation of Fifth Amendment protections against self-incrimination. Also worthy of note is that I-502 has no severability provision to ensure that if one part is invalidated, the rest remains intact. There’s no way to predict with any certainty which portions would survive.
Our assessment is that the possession exemption would likely remain valid, even without a legal means of obtaining product. We’re highly confident that the rest of the distribution scheme is just smoke and mirrors. The only thing we’re more sure of is that the zero tolerance and per se DUI provisions will be here to stay. More on that next time.
— For your consideration —
Even if the distribution system in Initiative 502 were to stand ground in a federal court challenge, the entire model is absurd.
It hands complete control to the Liquor Control Board: control over things such as setting the maximum amount of THC in the cannabis sold, and setting the maximum number of outlets per county.
In addition, any and all business applicants – whether for growing or selling – will be required to submit their fingerprints directly to the FBI (clearly criminal entrapment). It also mandates an excessive tax system, that taxes cannabis at multiple levels, at 25% tax per level, artificially inflating the price (a standard sales tax would suffice, and still bring in hundreds of millions to the state).