Deconstructing I-502, Part 1: Sorry, Folks, It’s Not Legalization

March 4, 2012

[Ed. Note: This is part 1 of Sensible Washington's multi-part analysis of I-502.]

We begin our cost-benefit analysis of I-502 with its most tantalizing aspect: allowing possession for adults 21 and older up to one ounce of cannabis (even more for marijuana-infused products).

That’s the benefit for cannabis consumers if the initiative passes (if it doesn’t also fall victim to federal preemption). The rest of our analysis focuses on the costs, and they will be dear. So much so, we’ve concluded that I-502 is not a step forward for legalization. We encourage you to do your own research, and draw your own conclusions.

To begin with, it is factually incorrect to describe I-502 as legalization. I-502 doesn’t repeal a single law that makes marijuana illegal. If it were to pass, cannabis would remain a Schedule I drug alongside heroin, etc..

Notice how the ballot summary issued by the  Washington State Attorney General’s office doesn’t use the word “legalization”:

This measure would…allow limited possession of marijuana by persons aged twenty-one and over.

The Secretary of State’s blog has described it as a decriminalization measure (as did The Stranger when they reported on its certification):

Washington Secretary of State Sam Reed’s office has certified Initiative to the Legislature 502, decriminalizing marijuana and regulating it and taxing it much like liquor. (emphasis added)

Under decriminalization, an act is no longer subject to criminal penalties. A dozen states have decriminalized possession, lowering penalties to a civil infraction. In a typical decrim scenario, violations become a ticketable offense with zero jail time and zero criminal record. I-502 is decrim without penalties (this in itself would be a step forward, but we explain in our series why it’s not worth the rest of the initiative).

The initiative does this by creating exceptions within the laws for narrowly defined behaviors. As long as you behave within these “bubbles”, you are exempt from penalties. For everything but possession, these behaviors—cultivating, processing, and selling—all require a functional, state-run licensing scheme. (We explain here why we doubt such a scheme will ever happen.) Step outside the bubble of your legal exception, and you’ll find the State to be every bit as unforgiving as it was before.

Consider the following scenarios:

  • If you pass a joint to a friend, you’re guilty of delivery of a controlled substance, a Class C felony.
  • If your ounce of pot gets wet, you’re guilty of felony possession by weight.
  • If you and your friend get stopped, and you each have a legal ounce in the car, you still can be found guilty of a felony under constructive possession.

Notice how different I-502 is from alcohol, which is legal but regulated. I can offer you alcohol at my home. If I hand you a bottle, I haven’t committed a crime.

Decriminalization is often derided as a “half-baked loaf”. Inevitably, it fails to provide a regulated system of distribution. Without safe access points, the black market continues unabated. Prohibition rages on, but at a reduced cost to the taxpayer.

Here are some hallmarks of legalization:

  • The right to make your own at home
  • The right to share it with friends
  • The right to purchase as much licensed product as you like

The flip side of being exempt from a possession charge means that Prohibitionist cops will have little option but to charge you with another, usually more serious crime. At a party, it will be delivery of a controlled substance. Outside, public display. On the road, it will be a DUI.

Doubtlessly, there are those, especially in the media, who will continue to misuse the term “legalization” when describing I-502. We choose to see this as shorthand for “a legal exception for compliant behavior”. Claims that I-502 will end prohibition under state law’ are demonstrably false. Rather, I-502 is decrim on steroids.

Part 2: Storefronts Ain’t Happening

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