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November 07, 2012 10:44 PM UTC

Colorado Loves You, Mary Jane

  • 13 Comments
  • by: Colorado Pols

Kicking off coverage of the passage of Amendment 64 yesterday, the constitutional amendment legalizing marijuana for recreational purposes in this state, naturally we begin with Westword:

Proponent Mason Tvert, speaking amid a boisterous celebration at the measure’s victory party, puts the historic achievement in perspective.

“This shows that Coloradans are ready to move beyond marijuana prohibition,” he says. “They demonstrated it tonight by approving Amendment 64.

“Eighty years ago, Colorado voters approved a repeal of alcohol prohibition, demonstrating a desire to take a more sensible approach to how we treat alcohol,” he continues. “It doesn’t come as a surprise that they’re now taking sensible steps when it comes to the way we treat marijuana.”

…Implementing Amendment 64 will be a challenge, given that Colorado’s law, as altered by the act, will directly contradict with federal policy, which continues to treat marijuana as illegal. However, he says, “we look forward to discussions with state and federal officials. We’re looking forward to working with them — and looking forward to seeing that marijuana is regulated and treated in a sensible fashion.”

FOX 31:

In a statement that was also issued last night, Governor John Hickenlooper explained how the transition will not be an easy one saying, “don’t break out the Cheetos and gold fish too quickly.”

Colorado’s Attorney General John Suthers also issued a response to the new legislation on Wednesday morning.

“Despite my strongly held belief that the ‘legalization’ of marijuana on a state level is very bad public policy, voters can be assured that the Attorney General’s Office will move forward in assisting the pertinent executive branch agencies to implement this new provision in the Colorado Constitution,” Suthers wrote.

KRDO-TV reports, there are still many unresolved questions:

Attorney General John Suthers released the following statement regarding taxation of the drug:

“The proponents of Amendment 64 told voters that it imposed a surtax of up to 15 % on marijuana sale that would result in up to $40 million each year going to K-12 schools in the state. In fact Amendment 64 did not comply with required language under the Taxpayers Bill of Rights and no such tax will be imposed. Instead it will be up to the Colorado Legislature whether to refer such a tax to the voters and up to the voters of Colorado whether to actually impose the tax. Therefore, such revenue is speculative and will not be forthcoming when Amendment 64 begins to be implemented.”

When state and federal laws conflict, federal law takes precedence. Federal authorities could sue in an attempt to block the measures in Colorado and Washington from taking effect.

It’s anybody’s guess what the federal government will do about Amendment 64, though many we’ve talked to do expect a suit by the feds attempting to block all or part of the amendment from taking effect. Depending on what happens with that, as FOX 31 reports, the Colorado General Assembly will be responsible for passing implementing legislation regulating the recreational sale of marijuana–and as Attorney General John Suthers asserts above, it may be necessary to refer a tax measure to voters to fulfill the fiscal part of Amendment 64’s promise.

It’s likely that the provisions for the sale and taxation of marijuana will prove more difficult to work out than the heart of the amendment, legalizing personal possession of up to one ounce or six plants. The state already has some experience with commercial sale of marijuana in the form of dispensaries for medical marijuana patients, experience that could help develop the model.

Whatever happens, we’re definitely in uncharted territory. A poll follows.

Are you happy Amendment 64 passed?

View Results

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13 thoughts on “Colorado Loves You, Mary Jane”

    1. “expect a suit by the feds attempting to block all or part of the amendment from taking effect.”

      You are absolutely right that the federal government doesn’t have the authority to make a state government keep any criminal statute in force.  So, the legalization piece would probably stand.  The federal government could argue that regulation amounts to a conspiracy by state officials to participate in carrying out a violation of a federal law and seek an injunction to prevent state officials from doing so.  However, this would raise serious sovereign immunity issues.

      Of course, the federal government has the clear right, notwithstanding this provision, to use its own law enforcement officers and the U.S. attorney’s office to prosecute any kind of marijuana use, possession, production or distribution (medicinal or recreational) even if it is legal under state law (there is a U.S. Supreme Court ruling right on point), except that if the U.S. government had done something to expressly tell people that they wouldn’t be prosecuted if the followed certain guidelines those people acting in reliance on that guidance might arguably have a defense if not given some reasonable time after that statement is disavowed to change their ways.

      Of course, prosecuting a marijuana offense in a jurisdiction where 53% of the jury pool voted to legalize poses a really serious risk that someone on a twelve person felony petite jury will vote to acquit despite clear evidence to the contrary and there is nothing that can be done to appeal that decision if it happens (this is called jury nullification).  (A grand jury could also refuse to indict defendants for marijuana offenses, despite the evidence, although this kind of activity, called a “runaway jury” is exceedingly rare in the federal grand jury system.)  The mere threat that this might happen discourages prosecutions and encourages very generous plea bargains in marijuana cases.  Moreover, in practice, the U.S. attorneys’ office, DEA, and FBI simply don’t have the resources to take a brute force approach to prosecuting marijuana offenses — they have to pick and choose cases calculated to have a big impact, knowing that they might backfire.

      Given all the complications of criminal prosecutions, the Justice Department may find it more effective to prefer civil forfeiture proceedings to criminal prosecutions as their primary tool in marijuana cases in Colorado, where it is possible to have cases resolved by judges and where jury nullification isn’t really possible (since judges can overrule civil juries in extreme cases of jury disregard for the law in the face of clear facts and since most of the key steps are taken by a judge before the case even could go to a jury).

      1. It will be interesting to see what happens. Legal strategies aside, I think the vote here and in Washington should serve as a wake up call to the Feds. Ultimately this is a political issue that can be addressed by legislation deleting  marijuana use and possession from the federal controlled substance list.

        I believe Rep. Polis has already proposed this, and the rest of the Colorado congressional delegation must take notice the people of Colorado have decided they don’t want to participate anymore in the failed war on drugs. All our national representatives are up again for election in 2014, as is Senator Udall. And elections have consequences.

        Federal alcohol prohibition was a failure and so is Federal marijuana prohibition. Leave the issue of marijuana prohibition and regulation up to the individual states, just as alcohol prohibition and regulation is left to the individual states.

        1. The more likely possibilities than an elimination of the federal controlled substances violation entirely are some combination of:

          (1) An exception for use authorized by state and local law.

          (2) A reassignment of marijuana from Schedule I (IIRC), for which a prescription is not a defense to Schedule II, for which a prescription is a defense.

          (3) An announced decision to exercise prosecutorial discretion not to enforce (1) or (2) without a change in the statutory law.

          1. (1) I assume this would have to be done statutorily?

            (2) Wouldn’t this only provide an affirmative defense to medical users and not recreational?

            (3) IMHO, prosecutorial discretion is not acceptable. The rule of law, rather than the whim of whatever U.S. Attorney is in office subject to regime change, should prevail.

      2. And I did speak with an attorney about this today.

        Disclosure: I SMOKE POT. God, I love Colorado. This is the greatest state in the land. I am telling you I SMOKE POT and I face no legal problem of any kind. More or less, it’s technically only true once the Governor proclaims it.

        Full personal decriminalization is not a problem. The feds can’t stop it It will take effect. Federally-chargeable offenses like cultivation, and certainly commercial distribution, are as Pols says. Uncharted territory.

        But the war of drugs was struck a major blow last night. And I am forever grateful to my fellow Coloradans.

  2. I will vote for more. If it can be taxed in a manner helpful to schools all the better. Since that is not in A 64 perhaps countys, citis and school districts have an option to collect revenue and stovepipe it for schools. But, I would say not just for construction but also for operations.

    But in any county where it passed by 55% or more commissioners might expect recalls if they try to prohibit. Won’t be hard to import a few hundred young voters (read stoners if you wish) into a rural county for a couple of months.

  3. Marijuana prohibition was an expensive and unconscionable policy experiment. Our elected officials have failed to show leadership on this issue, so much so that the people have now twice had to take it into their own hands and pass constitutional amendments requiring common sense. Everyone in elected office knows damn well that there is no possible argument for prohibition of marijuana while tobacco and alcohol are legal. They knew that damn well throughout the entire War on Drugs, and they know it now.

    I hope we’ll see a few of them stand up and admit it this year.

  4. Not an article about Colorado, rather Washington State:

    http://seattletimes.com/html/l…

    Many legal experts expect the U.S. Justice Department, which remained silent during presidential-year politics, to push back and perhaps sue to block I-502 based on federal supremacy.

    But Seattle City Attorney Pete Holmes said Seattle’s U.S. Attorney Jenny Durkan told him Tuesday the federal government “has no plans, except to talk.”

    Here’s hoping meaningful dialogue can take place here in Colorado, as well.

    1. http://www.seattlepi.com/local…

      Portions of the initiative repealing state laws against marijuana possession are likely beyond federal review. That would leave Washington state law officers unable to pursue charges against anyone 21 years old or older caught with an ounce or less of marijuana.

      More problematic will be the initiative’s signature reform – the creation of a legal market for marijuana in the state…

      Voicing the general consensus, King County Prosecutor Dan Satterberg said he expects the Department of Justice will file a lawsuit.

      Noting that marijuana possession has been the lowest priority for Seattle police for nearly a decade, Satterberg suggested I-502 may end up before the U.S. Supreme Court.

      “It’s an important state’s rights issue about whether a state can have a law that is inconsistent with the federal Uniform Controlled Substances Act,” said Satterberg, referring to the key federal drug law. “I expect it’s the kind of case that would go all the way to the Supreme Court.”

  5. 1,250,000 voters in Colorado and 1,056,000 in Washington AND 698,000 in Oregon voted to legalize.  That is 3 Million peope in the US voted for cannabis legaliztion.  How many Congress people want to keep their jobs?  State legislature?  The Feds now have to convince the elected officals it wont affect them if they deny the American people what we voted for.

    I have news for the elected officals, i bet i can get 3 million people or more to vote against you if mess with the power of the American people…

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