In Historic Move, States Legalize Marijuana. Now What?

For the first time in history, two states passed laws yesterday to legalize and regulate marijuana for recreational use. The successful ballot initiatives in Colorado and Washington, backed by numerous law enforcement officials, signal exasperation with the failed War on Drugs, and a willingness to better tailor the legal system to states’ public safety and public health goals. A similar measure in Oregon did not pass.

Both laws will legalize possession of less than an ounce of marijuana for individuals 21 and older, and set up mechanisms for regulation of marijuana similar to alcohol. Although the laws will eliminate state enforcement of marijuana laws, the drug remains federally illegal, and the laws will not preclude federal enforcement. As has been the case with medical marijuana laws, dispensaries that operate in total compliance with state laws may nonetheless be subject to raids by the federal Drug Enforcement Administration, prosecution by the Department of Justice, and even crackdowns by the Internal Revenue Service. The laws in their entirety might also be subject to legal challenges by the federal government, on the grounds that they are preempted by federal regulation of drugs.

Federal government officials have not yet indicated how they will react to these laws, but they have been increasingly aggressive in their crackdowns of dispensaries that sell medical marijuana – though not patients who consume it — in the 17 states where it is legal (Massachusetts became the 18th last night).

In 2010, when a similar ballot initiative was pending in California, Attorney General Eric Holder sent a letter warning that the DOJ would “vigorously enforce” the federal Controlled Substances Act if the law were passed. The California ballot initiative ultimately failed, and this time, Holder did not publicly signal his position on the state laws, in spite of pleas from a group of former DEA officials that he come out against legalization.

If the federal government chooses to crack down individually on dispensaries without first making any public statements, we won’t know anytime soon how these laws will play out. Both initiatives designate about a year for implementation of the law, during which particular agencies are tasked with adopting standards for licensing of dispensaries, producers, regulating safety and setting up procedures for distribution. Only after those rules are in place will state producers or dispensaries even begin to apply for state licenses, and to get their products approved for sale.

In the meantime, the DOJ could choose to sue to block the law in its entirety, but the success of a preemption challenge under the federal Controlled Substances Act is uncertain at best, which may be why no such challenge has blocked any of the medical marijuana laws now in place. More than that, the DOJ may make a political choice not to challenge a law with such broad public support, and that experiments with new ideas in an area desperately in need of reform. As Seattle City Attorney told ThinkProgress:

Prohibition has failed in every legitimate public safety goal. … 59% of the [marijuana] cases that were pending when I took office on Jan. 1, 2010, were against African Americans. That in a city with a 7% African American population. The only achievement if you will of marijuana prohibition in this case has been to make sure that we become the number one jailer nation on the planet, and it’s only made certain that only criminals are getting wealthy from the sale of marijuana.

The laws will no doubt face logistical challenges, from setting standards for driving under the influence, to determining how best to handle the inevitable interstate trafficking of legally produced marijuana. But counteracting these short-term concerns is the power of these laws to both send a necessary political message, and provide a model for legalization.