Initiative or no, federal law trumps state on marijuana

Suppose voters decided that they’ve had it with federal drug rules that make marijuana an illegal substance akin to heroin or cocaine, and they change Washington state law to make marijuana legal.

Not in all instances, not for everyone, not at any time. But for adults, in regulated quantities, for limited uses.

While that might be a fair shorthand description of what Initiative 502 proposes this November, this isn’t just a hypothetical scenario about the future. It’s also a description of the past. In 1998, Washington voters “legalized” marijuana for medical uses, even though the federal government said at the time, and still does, the drug belongs on the list of controlled substances that have no legal medical use.

Fourteen years later, state officials still struggle with developing a system to regulate medical marijuana production and sale, while the U.S. Justice Department continues to prosecute “dispensaries” under federal drug trafficking statutes for selling pot to state-approved medicinal smokers unwilling or unable to grow it for themselves.

Supporters of I-502 – which would allow for the possession and consumption of small amounts of marijuana by adults but keep it illegal for minors and anyone operating a vehicle – say it will free local law enforcement and state courts from the cost of marijuana enforcement. The prosecution, defense, court and jail costs of those cases cost Washington governments more than $200 million between 2000 and 2010, the American Civil Liberties Union of Washington recently estimated.

Spokane City Council President Ben Stuckart said the chance to lighten the load on local police and avoid filling local courts and jails makes I-502 a good choice. While there’s no guarantee what federal drug agents and prosecutors will do, the chance to begin discussions also would be a plus, he said.

“If nobody acts, nothing’s going to happen,” he said.

I-502 won’t stop federal officials from enforcing the law, most concede. But it will spark discussions on how to shift from individual users to large criminal organizations bringing drugs across state and national borders, said Pete Holmes, the Seattle city attorney and a supporter of the initiative.

“It would take a great deal of hubris to just brush it aside,” Holmes said.

The state’s federal prosecutors won’t even talk about what they would do if voters approve I-502.

“We’re not making plans right now,” said Mike Ormsby, U.S. attorney for Eastern Washington, adding he’s had no discussions with supporters of the initiative and “I don’t intend to have any.”

Jenny Durkan, U.S. attorney for Western Washington, hasn’t had any official discussions on what actions federal law enforcement would take if the ballot measure passes, a spokeswoman said. “We are prohibited from commenting on Initiative 502,” Emily Langlie said. “It’s possible, between now and the election, the Department of Justice will provide further instructions.”

Last year, Ormsby warned dispensaries in Spokane that they faced federal prosecution if they didn’t shut down. A letter from Ormsby and Durkan to Gov. Chris Gregoire prompted the governor to essentially gut a bill that legislators had hammered out to regulate the production and sale of medical marijuana, which was called for in the 1998 ballot measure.

“Growing, distributing and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities,” they wrote in April 2011.

I-502 calls for the state to regulate the production, processing and sale of marijuana – and collect taxes on it – through the state Liquor Control Board.

Holmes believes the passage of I-502 could actually ease the federal pressure on medical marijuana dispensaries. It was the proliferation of those facilities and readily available “prescriptions” that helped spur the federal crackdown, he said.

“There are a lot of sham users of medical marijuana,” he said. “The number of dispensaries you see is quite a bit beyond what’s needed for medical marijuana.”

I-502 would likely preclude the need for dispensaries because medical patients could find the drug relatively easily, he added.

State Attorney General Rob McKenna, who is running for governor this fall on the same ballot as I-502, said passage of the measure will create “a serious conflict between state law and federal law.” If state and local officials don’t prosecute marijuana cases, federal prosecutors likely will, he said.

“It’s not a state’s rights issue,” McKenna said: It’s an issue where federal law rules under the Constitution’s supremacy clause.

Like his Democratic opponent for governor, Jay Inslee, Republican McKenna opposes I-502. If the measure passes, one or the other would be faced with dealing with the fallout, although neither has specific plans.

Inslee’s campaign said simply that he would “work with legislators and stakeholders to implement the new law.”

McKenna said he believes the initiative will fail, so he won’t deal with a hypothetical like how he would deal with the U.S. Justice Department. “I don’t want to comment on what could happen on a law that won’t pass.”