Washington's Marijuana Legalization Measure Creates Strange Bedfellows

A Washington state Elway poll in early September found 50 percent in favor of I-502, 38 percent opposed and 12 percent undecided. In a SurveyUSA poll conducted about the same time, 57 percent of likely voters said they would vote yes. That puts marijuana advocates on the verge of landmark legislation, something they've been unable to accomplish despite 40 years of effort that began with the first California Proposition 19 campaign in 1972.
by | October 15, 2012

It's not surprising that Jim Johnston is passionate about this year's campaign for Initiative 502, the proposal to legalize marijuana in Washington state.

Johnston has used and appreciated marijuana since he was a teenager back in the 1960s, and for the past several years he's been smoking it daily to control pain from head injuries.

He's long believed that criminalizing cannabis is misguided and counterproductive social policy.

"I definitely want legalization," Johnston said recently from his home in Puyallup. "As a society, we're dumb for not doing it."

What is surprising is that Johnston is campaigning against the initiative.

"We need a new law," he said, "but this isn't it. It's definitely a conservative, one-sided thing."

According to recent polls, Washington's marijuana measure, which would allow adults to possess as much as an ounce of pot, has a good chance of passing.

A statewide Elway poll in early September found 50 percent in favor of I-502, 38 percent opposed and 12 percent undecided. In a SurveyUSA poll conducted about the same time, 57 percent of likely voters said they would vote yes.

That puts marijuana advocates on the verge of landmark legislation, something they've been unable to accomplish despite 40 years of effort that began with the first California Proposition 19 campaign in 1972.

But the I-502 campaign is threatened by ideological dissension in the pro-marijuana ranks, where the debate is not about whether marijuana should be legalized, but how it should be legalized.

The only organized opposition to I-502 is coming not from people who think the proposal goes too far, as one might expect, but from people such as Johnston, who think it doesn't go far enough.

Opponents argue that, in the process of making the bill politically acceptable, its authors made compromises and set precedents that will prove difficult or impossible to get rid of and, in the long run, will set back the national campaign for more complete legalization.

Alison Holcomb, the American Civil Liberties Union attorney directing the pro campaign - New Approach Washington - characterizes the rift as "idealism versus incrementalism."

She readily admits I-502 is a cautious step. But she says that's the way it needs to be, not only because it's a historic change in social policy, with many unknowns, but also for purely practical political reasons.

Concerns raised by opponents in past campaigns - the possibilities of increased use and dependence, easier access for children and the public danger of drugged driving, for example - needed to be addressed and dealt with, she said, and I-502 does that. Businesses with drug-free policies would still be able to enforce them under the initiative.

"We're feeling a little bit validated by the fact that there is very little organized opposition," Holcomb said. "The fact that people within the law are sponsoring this, I think, is reassuring for many people."

Steve Sarich, the director of the No On I-502 campaign, calls the initiative "a Trojan horse."

"This is just absolutely the wrong idea," he said. "It's adding new penalties on top of current penalties for use."

Sarich gained notoriety in 2010 when he shot and critically wounded a 19-year-old burglar trying to break into his Kirkland area home and medical marijuana business, CannaCare.

He rejects charges that the real reason medical marijuana providers are against the initiative is that it would break up their lucrative monopoly on marijuana sales.

"I don't think anybody's getting rich on medical marijuana," he said. "Nobody I know is."

The text of I-502 and the changes it would make in other existing statutes runs 65 pages, but simply put, it would make it legal for people 21 and older to possess up to an ounce of dried marijuana, a pound of marijuana-laced baked goods or other "edibles," or 72 ounces of marijuana-infused liquids.

Every aspect of the supply chain, from grow operations to retail sales, would be controlled by the state - and heavily taxed.

Users would buy marijuana in stand-alone, marijuana-only package stores, run privately but regulated by the state Liquor Control Board.

Growing your own would still be illegal, except for medical marijuana patients. Most advertising would not be allowed. Competence to drive would be measured by a new threshold for THC blood concentration.

Proceeds from taxes and license fees, which the state Office of Financial Management has estimated at close to $500 million a year, would go to the state's general fund and a variety of specific areas, including health care, youth drug prevention and treatment programs, and research.

Unlike California's failed Proposition 19, which was sponsored by medical marijuana activist Richard Lee, the founder of a "cannabis-oriented college" called Oaksterdam University, I-502 originated in the heart of the establishment. It has prominent supporters in law enforcement, business and public health.

Sponsors include Tacoma attorney Salvador Mungia, the immediate past president of the Washington State Bar Association; John McKay, former U.S. attorney for the Western District of Washington; and University of Washington professor emeritus Roger Roffman, a nationally recognized expert on social consequences of marijuana use.

I-502 was submitted to the Secretary of State's Office last summer after supporters produced nearly 250,000 signatures. The Legislature chose not to act on it, meaning it automatically went to November's general ballot.

Other backers include the former head of the FBI's Seattle field office and Norm Stamper, Seattle's police chief from 1994 to 2000.

The NAACP has signed on, as has the Children's Alliance, a statewide advocacy group for children's interests that represents about 125 organizations.

New Approach Washington has raised more than $3 million, compared with $5,700 by the No On I-502 group. Its biggest donors so far are Peter Lewis, the former CEO of Progressive Insurance ($853,000); the New York-based drug reform group Drug Policy Alliance ($715,000) and the Edmonds-based travel entrepreneur Rick Steves ($450,000).

The ACLU of Western Washington has donated $192,500 to the cause.

Five people have contributed to the No On I-502 campaign, with the largest single contribution just $1,350.

They are Edward Afazarm (aka Eddie Spaghetti), who runs the biggest signature-gathering operation in the state; Olympia citizen activist Arthur West; Sarich; and two other medical marijuana providers whose places of business were recently raided by police.

The driving-under-the-influence provision has caused most of the blowback from pro-marijuana groups, including the nonprofit group Sensible Washington, which ran an unsuccessful marijuana reform measure (Initiative 1068) two years ago.

The current initiative presumes impairment at 5 nanograms of active TCH per milliliter of blood, a level opponents say is not supported by science. It would be a "per-se" limit, meaning drivers with that much active THC in their blood would be guilty of DUI by definition, even without proof of impairment.

Opponents argue that setting such a limit would be unfair to medical marijuana patients, some of whom use so much marijuana they've developed a tolerance and can drive safely with higher levels of active THC in their blood.

"You have no defense in court with a per-se limit," Sarich said. "The evidence against you could be nothing more than a policeman saying he thought you looked stoned.

"You get in a car accident that's not your fault and guess who's going to jail," he said. "You, because you were supposedly driving under the influence of drugs at the time."

Supporters say drivers who are not driving erratically and don't appear intoxicated would have nothing to worry about.

They also note a point of confusion they say is causing unnecessary fear among some medical marijuana patients. The new DUI threshold is not for carboxy-THC, the component of marijuana most commonly used in drug testing and which remains in one's system for weeks after use.

The new standard measures active delta-9-THC, the component that causes intoxication. Active THC spikes rapidly after use and drops back down within hours.

While medical marijuana activists are resisting I-502 most loudly, they are by no means the only ones opposed. Several other groups are using more standard arguments against legalization.

The Washington Association of Sheriffs & Police Chiefs is against I-502, arguing that marijuana is inherently harmful and that legalization would lead to the mistaken impression that it is harmless.

Its members also worry about an increased incidence of drugged driving, and they say public health costs would far exceed the revenue generated.

The Washington Association for Substance Abuse and Violence Prevention is against it, too, arguing that legalizing marijuana for adults would increase access for kids.

Opponents also argue that the initiative would put Washington in conflict with federal law, which prohibits any use of marijuana and classifies it as a Schedule 1 controlled substance, along with heroin and LSD.

If I-502 passes, opponents say, federal government agencies almost certainly would step in, putting anyone involved at risk of federal prosecution. State licensing requirements would give federal prosecutors a handy hit list of growers, processors and retailers, they say.

Seattle attorney Jeffrey Steinborn, who has defended many marijuana clients, opposes I-502, calling it "a law enforcement sting in plain sight."

The large sums of money the state stands to make from regulation is a selling point of supporters. Under the initiative, marijuana sales would be taxed 25 percent at the wholesale and retail levels, plus sales taxes. The state would receive additional income from a $250 application fee and a $1,000 fee for issuing and renewing licenses.

But in its analysis of probable economic impacts, the Office of Financial Management acknowledged the possibility of the feds snuffing out the whole enterprise, making accurate estimates impossible.

It presented a range of possibilities going from zero dollars if the feds step in to nearly a half-billion dollars a year if they do not.

In its analysis, the agency estimated the state would license 100 growers and 328 marijuana stores.

Based on national drug-use surveys, they concluded the stores would sell about 94 tons of marijuana a year to some 363,000 customers.

Supporters acknowledge the possibility of federal officials stepping in, but they say that's no reason not to pass the law. The only way federal marijuana policy will change, they say, is if states revolt and force the discussion.

"It's a political question of what the federal government is going to do," Holcomb said. "Our job is to pass this and demonstrate that the voters of Washington are ready to try something different."

In terms of predicting what the federal government will do, she said, the experience with medical marijuana might be the best guide. Federal law makes no distinction between marijuana and medical marijuana.

Seventeen states and the District of Columbia have medical marijuana laws now, and several of them have state licensing requirements. The federal government has not tried to strike down any of those laws.

"Whether it takes the same position when I-502 passes is an open question," Holcomb said, "but I-502 is a solid proposal and a better approach. It benefits government by separating adult consumers from the black market. It takes the money out of the hands of organizations that are killing people in Everett, in Mexico and shooting it out in Canada."

I-502 is an incremental approach, Holcomb said, which is why some of the tax proceeds are earmarked for ongoing analysis of the law's effects.

"This needs to be monitored and evaluated, and we need to be provided with good information if it needs to be changed," she said.

Sarich doesn't buy it.

"You need to write it right the first time," he said.

"I believe the American public is now really sick and tired of the war on drugs," he said. "If not this year, maybe next year. I think we can do it right and do it the first time."

©2012 The News Tribune (Tacoma, Wash.)

Read more here: http://www.mcclatchydc.com/2012/10/14/171463/washingtons-marijuana-legalization.html#storylink=cpy

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