[Ed. Note: This is part 8 of Sensible Washington's multi-part analysis of I-502.]
Our opposition to Initiative 502 was not a decision made in haste. We examined this measure from multiple angles, looking at the political ramifications, the legal implications, and the social benefits and consequences. We came to a clear conclusion: Initiative 502 is not a positive step forward for our state, and we can do better.
Here are the key reasons why, after deep consideration, our organization voted unanimously to oppose this measure (you can read our full analysis here):
- Initiative 502 will retain cannabis as a schedule 1 controlled substance under state law. This classification declares cannabis equal to heroin in danger and illegality. Instead of legalization, it will set up a narrow exception for certain activities, such as possession of a small amount. However, gifting or sharing, such as passing a joint, will remain a felony charge. Home-growing, even a single plant, will remain as illegal as before. This is far from legalization, indicating right away that things aren’t what they’re being put across as.
- The regulation and taxation system – if not the entire initiative – will be rendered invalid by the federal government. The initiative forces the state to license businesses for, and collect taxes from, a substance that is a schedule 1 drug under both federal and state law. This directly conflicts with our Federal Controlled Substances Act, as well as our State’s Uniform Controlled Substances Act, which will give the federal government complete legal authority to take it to federal court, and quickly preempt it. This will effectively take down either the entire initiative, or the specific parts that conflict with these acts — the distribution, regulation, and taxation system. Ultimately, no tax revenue would be produced from the proposed retail outlets.
- Beyond the fact that it’s federally preemptable, the regulation system is outlandish. It hands complete control to the Washington State Liquor Control Board (WSLCB). They will control the THC in the cannabis sold, the maximum number of retail outlets per county, etc. (New Section. Sec. 10., Pages 18-21).
Some fear a government takeover of cannabis. Initiative 502 mandates it.
- The licensing system will lead to individuals spending years, even decades, in federal prison, despite the fact that those individuals will be following state law. This could be said with medical cannabis as well, but Initiative 502 goes as far as forcing all business license applicants, whether growing or selling, to submit their fingerprints, along with the address of the location where they plan to grow or sell, to the FBI (New Section. Sec. 8., page 16). This is clearly criminal entrapment.
- Initiative 502 mandates a new driving under the influence of drugs (DUID) provision for THC that will result in prosecution of the innocent. Supporters of this measure argue that they have the science and technology to justify the limit as appropriate, but this is entirely untrue. In fact, just last year, Colorado’s Legislature tasked a workgroup to examine the science surrounding the exact 5ng/ml THC limit that Initiative 502 sets up. The workgroup came to the conclusion not to recommend the limit, based primarily on a lack of science, and the potential for prosecuting innocent people. Colorado has rejected the limit, three times.
In our own state, Representative Roger Goodman introduced an even higher 8ng/ml limit for THC last year. It didn’t take long for him to revoke it. His reasoning was simple: in addition to lacking legislative support, the public objected vehemently, and he concluded after an analysis that there was no science to back it.
Even the U.S. Department of Transportation has stated: “It is not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations.”
The National Organization for the Reform of Marijuana Laws (NORML), in a widely read piece denouncing similar per se policies, stated: “There’s a new front in the “War on Drugs” and its name is DUID.”
The Marijuana Policy Project has called this same 5ng/ml limit “absurd”: “The bill would set a limit of five nanograms of THC per milliliter of whole blood where, above that limit, a driver is automatically considered to be driving under the influence of drugs. This is absurd.”
The truth is that the limit mandated in this initiative has no basis in science, and it is not fair policy. Patients and casual consumers will fail this test and be prosecuted for a life-altering DUID long after they’re impaired (a DUID is a harsher sentence than possession of an ounce). Reports have consistently shown this to be true. Even worse, the per se policy in Initiative 502 would include conclusive presumption, meaning you literally lose your right to defend yourself in court against allegations of impairment. This is bad policy.
- Initiative 502 completely ignores, and endangers young adults. It mandates a zero-tolerance driving policy for those under 21 (Sec. 31., Page 46). This is unethical policy, and will lead to prosecution of those aged 16-21 simply for having consumed cannabis days or even weeks before (this zero tolerance policy is the only provision of the initiative that alters current law for those under 21). A DUID on a person’s record can affect their lives forever. This limit appears to ignore the fact that individuals aged 18-21 are allowed under state law to use doctor-recommended medical cannabis. No one should ever drive impaired, regardless of the substance, but zero-tolerance driving policies are never related to impairment.
Nathan Miller, when he was a legal analyst for the Marijuana Policy Project, put it perfectly: “Zero-tolerance laws aren’t about making roadways safer; they’re a disingenuous attempt to create a powerful, intrusive tool to root out those who use controlled substances such as marijuana, regardless of whether they operate an automobile under its influence. This type of justice is cruel, unusual, and bad public policy.”
- Initiative 502 could end up increasing the black market. The initiative allows for possession of an ounce of dried cannabis, but retains the illegality of growing even a single plant. Beyond this, federal preemption will stop any legal retail outlet from opening or being licensed. That stated, we are left with a scenario that forces individuals to the same black market we’re trying to defeat in order to purchase their legal ounce. This is not the way to reform our cannabis polices, or stop the dangerous consequences of prohibition.
- Initiative 502 won’t stop the 10,000 arrests that proponents claim it will. These numbers don’t account for a number of offenses that Initiative 502 doesn’t alter, such as possession by someone under 21, someone possessing even a gram over an ounce, someone growing a single plant, etc.. Also take into consideration New York City, where possession of just under an ounce (25 grams) is decriminalized. Despite this, there were over 50,000 arrests for simple cannabis possession in 2011 based on police stopping people and telling them to empty their pockets – resulting in the crime of “public display”. “Public Display” is still a crime under I-502.
- Initiative 502 will set a negative precedent for the rest of the country. If this initiative passes, it’s very likely that other efforts across the nation will follow a similarly faulty template — including the per se DUID policy that reform groups have fought against for decades, and which continues to be one of our Drug Czar’s top national policies. Those who support cannabis law reform need to get behind efforts such as Colorado’s Amendment 64, and Oregon’s Measure 80, and reject such faulty reform as Initiative 502. We cannot risk supporting a dangerous policy to achieve a potential political victory that’s likely to backfire, for the reasons mentioned below.
- Initiative 502 will instill complacency, and meaningful reform will be pushed back for years. If I-502 passes, many people will be fooled into thinking that they just “legalized” cannabis. The misperception and the resulting dismay could stop voters and our elected officials from supporting meaningful reform, or legal alterations, in the near future.
In addition, the average voter, who may not understand the intricacies of the issue, may see the new policy as “legalization failing” when this initiative doesn’t produce the promised benefits, when in reality it will have failed because of its massive legal faults.
It is likely that the most dangerous provision, the per se DUID limit, will stay in place for decades, since “drugged driving” laws are essentially never reduced (Consider this, a bill introduced by one of I-502′s primary sponsors to protect patients retroactively from the limit failed to even make it out of committee earlier this year).
- In conclusion, it is our position that the negative consequences of Initiative 502 outweigh any potential benefits. We encourage everyone to read the initiative and decide for themselves.
As an organization, we urge you to vote No. We’re simply not willing to implement dangerous new policies in exchange for faulty reform disguised as legalization.
* Updated 10/24/2012