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The mysterious federal reaction

January 22, 2013

To judge from the reactions on the conference call/press conference this afternoon from Washington Governor Jay Inslee and Attorney General Bob Ferguson, the main emotion must be relief.

That, when they conversed with U.S. Attorney General Eric Holder, their heads weren't bitten off in a rage at Washington's voters deciding that marijuana should be legal.

The conversation was pleasant, and - from their description - Holder seemed to be more in listening than in talking mode.

They have a number of things to talk about. There was nothing "dispositive," Inslee said, on the big one: Whether the feds plan to go after Washingtonians who start doing what Washington law (though not federal law) now says is legal. What about people who sink money into businesses that the new state law contemplates will be basic parts of the process needed to make the law work? No one knows.

Two points Inslee did mention about subjects of under discussion, however, are of interest.

One is what Washington will do to "contain" state-legal marijuana, to keep it from being exported across state lines. (He said that the Washington State Patrol, among other organizations, are considering the question.) The other was the possibility of a federal lawsuit aimed at Washington (and presumably Colorado as well), though what it would seek, exactly, isn't clear. That a judge order a state to throw out a state law because the feds don't like it? Seemingly improbable, but Ferguson indicated that a team of attorneys are looking into defenses for the state if a lawsuit should materialize.

Inslee said he expects to chat again with Holder: "This is the first of what I think will be a continuing series of discussions," he said. That may be the most clearly predictable point right now. - Randy Stapilus

Wyden at Newberg

January 10, 2013
wyden
Senator Ron Wyden at Newberg (photo/Randy Stapilus)

 

This time, they wanted answers about guns. And when they didn't get answers as specific as they were seeking, they asked again.

The economy seemed to take a back seat on this visit by Senator Ron Wyden to Yamhill County, one of his year's batch of town halls he has conducted (as he has for 16 years). Held at Newberg High School, it featured some questions about education policy (Wyden made a point of noting federal payments, related to land ownership, that has gone to Oregon schools, and his "know before you go" bill for college students). But guns and matters related to the "fiscal cliff" tended to dominate - both matters that haven't figured so heavily in other recent visits by Wyden.

At the sessions, the senator doesn't start with a discussion of any particular topic, and doesn't do much to steer the subjects of discussion. (He did ask toward the end, "No questions about gay marriage or marijuana?" He quickly got both, responding that he was in favor of the first and "not there yet" on the second - language suggesting, as President Obama did on gay marriage, that he's on a road heading there.)

One student did ask about the new federal health care laws, and Wyden singled out praise for the provision banning insurers from blocking people with pre-existing conditions. But he also noted the difficulty of reaching broad-based agreements, citing his efforts last year with Representative Paul Ryan on Medicare: "I still have the welts on my back from that one."

Guns seemed a preoccupying issue, but while Wyden set out general ideas he eased back from some specifics. He said he didn't yet know enough to decide whether large magazines should be banned (limited to military or police). He said he didn't like the idea of arming teachers (in response to a question about that from one student).

Next Yamhill senator town hall (with one with Jeff Merkley): Thursday, at McMinnville.

I-502, on the immediate side

December 5, 2012
carlson
NW Reading

From a note to editors by the Washington State Patrol, concerning new state law on marijuana going into effect tomorrow ...

However, it is unlikely that we will have much to report tomorrow regarding immediate effects of the new marijuana law. In particular, there will be no way to tell how many people troopers might have contacted with less than an ounce of marijuana and who were NOT arrested. It’s fundamental that we don’t keep tabs on people engaged in legal conduct.

It will take a month to six weeks to have completed trooper time sheets that might indicate a change in the number of arrests for possession. However, trooper timesheets only indicate “drug arrests,” they do not indicate the type of drug involved. So even this might not be definitive.

With respect to impaired driving, we hope you’ve all heard our mantra by now: We’ve always arrested impaired drivers regardless of the drug involved. It has always been a crime to drive while impaired by drugs whether they be illegal, legal or even medically prescribed. This new law does not change how troopers will determine impairment at the side of the road.

The THC level in a suspect’s blood will not be known for days or weeks after the roadside contact. That will be an issue for prosecutors and defense attorneys not troopers.

Gone viral: A police dept’s guide to pot

November 24, 2012
carlson
NW Reading

This may be the most readable police statement you've ever read. It's going viral around the net, and it's not even a video.

It comes from the Seattle Police Department, and its subject is, well, what about marijuana, now that voters in the state (albeit not the federal government) have legalized it? It's quite a read.

While cautioning about the federal provisions, Seattle police say they won't be enforcing them. Excerpts:

Can I legally carry around an ounce of marijuana?
According to the recently passed initiative, beginning December 6th, adults over the age of 21 will be able to carry up to an ounce of marijuana for personal use. Please note that the initiative says it “is unlawful to open a package containing marijuana…in view of the general public,” so there’s that. Also, you probably shouldn’t bring pot with you to the federal courthouse (or any other federal property).

Well, where can I legally buy pot, then?
The Washington State Liquor Control Board is working to establish guidelines for the sale and distribution of marijuana. The WSLCB has until December 1, 2013 to finalize those rules. In the meantime, production and distribution of non-medical marijuana remains illegal. ...

Can I smoke pot outside my home? Like at a park, magic show, or the Bite of Seattle?
Much like having an open container of alcohol in public, doing so could result in a civil infraction—like a ticket—but not arrest. You can certainly use marijuana in the privacy of your own home. Additionally, if smoking a cigarette isn’t allowed where you are (say, inside an apartment building or flammable chemical factory), smoking marijuana isn’t allowed there either.

Will police officers be able to smoke marijuana?
As of right now, no. This is still a very complicated issue. ...

What happens if I get pulled over and an officer thinks I’ve been smoking pot?
If an officer believes you’re driving under the influence of anything, they will conduct a field sobriety test and may consult with a drug recognition expert. If officers establish probable cause, they will bring you to a precinct and ask your permission to draw your blood for testing. If officers have reason to believe you’re under the influence of something, they can get a warrant for a blood draw from a judge. If you’re in a serious accident, then a blood draw will be mandatory.

What happens if I get pulled over and I’m sober, but an officer or his K9 buddy smells the ounce of Super Skunk I’ve got in my trunk?
Under state law, officers have to develop probable cause to search a closed or locked container. Each case stands on its own, but the smell of pot alone will not be reason to search a vehicle. If officers have information that you’re trafficking, producing or delivering marijuana in violation of state law, they can get a warrant to search your vehicle.

SPD seized a bunch of my marijuana before I-502 passed. Can I have it back?
No.

The merits of willful inefficiency

November 19, 2012

Oregon is home to a good deal of talk about the reorganizing of its liquor marketplace, prospectively moving away - as Washington state has - from the liquor store system, and possibly removing such elements as the three-tier sales system (producer, wholesaler, retailer) that without doubt adds inefficiency and cost to the system, and to the product.

Not as a final word but as a factor in thinking about this, take a look at this Washington Monthly article, which suggests - more clearly than I've seen elsewhere - the pluses to throwing inefficiency and extra cost into the system.

A sample: "And so, for eighty years, the kind of vertical integration seen in pre-Prohibition America has not existed in the U.S. But now, that’s beginning to change. The careful balance that has governed liquor laws in the U.S. since the repeal of Prohibition is under assault in ways few Americans are remotely aware of. Over the last few years, two giant companies—Anheuser-Busch InBev and MillerCoors, which together control 80 percent of beer sales in the United States—have been working, along with giant retailers, led by Costco, to undermine the existing system in the name of efficiency and low prices. If they succeed, America’s alcohol market will begin to look a lot more like England’s: a vertically integrated pipeline for cheap drink, flooding the gutters of our own Gin Lane."

As the region moves, apparently, in the direction of a marijuana marketplace, some of the ideas here might come into play there as well. - Randy Stapilus

More civility than you might expect

November 1, 2012

From today's e-mail by David Ammons, of the Washington secretary of state's office:

FYI: Excellent column today by Danny Westneat, quoting Secretary Reed, on how release of initiative/referendum petitions has not resulted in intimidation, and about how civil the conversation and campaigns have been this year on some difficult ballot issues – gay marriage and marijuana legalization, most notably.

Sam, of course, has made civility and open government/transparency signature issues. The 9th Circuit Court of Appeals recently dismissed a challenge of the Secretary of State’s view that our voter-approved Public Records Act applies to initiative/referendum petitions. The case arose from release of petition signatures for Referendum 71, the “everything but marriage” expansion of domestic-partner benefits that passed in 2009. The court noted that the signers’ names have been on the Internet for months, without incident, and that challengers have not shown examples of intimidation or chilling the initiative process. The U.S. Supreme Court previously also has upheld the general constitutionality of public records release of petitions, in Doe v. Reed.

At the time of the 8-1 court victory, Reed urged citizens not to misuse the public documents by harassing or intimidating people who are using their constitutional right of citizen legislating. No one should pay a price for exercising those rights, he said at the time. He also continues to urges a civil tone when people discuss divisive or difficult issues – to “disagree agreeably.”

The real pot initiative question

September 25, 2012
westcascades

Really striking how the two major newspapers in the Northwest, the Seattle Times and the Portland Oregonian, have landed on flatly opposite sides on the marijuana legalization initiatives in their respective states – the Times in favor (with four editorials, no less), the Oregonian against.

The Oregonian editorial staff would be quick to note (and accurately) that the two measures are not the same. Washington’s could be considered cleaner, a more direct and conventional legalize, regulate and tax approach, while Oregon’s goes further – almost wrapping pot in the flag and founding fathers (it is true that George Washington and others of the time grew hemp), and putting regulation in the hands of a board dominated by the newly legal industry.

Talk about having the economic advantages baked in.

What the Times writers seemed to get, though, that the Oregonian’s did, is this: The details aren’t what’s important. These initiatives aren’t important in the usual way, the way initiatives on taxes and so many other things are important. In those cases, details are important because those measures if passed will go into effect as is.

Not so in the case of these initiatives. Growing, selling and possessing marijuana is illegal under federal law, and that won’t change even if both initiatives (and those in other states) pass. Voters in a state can’t overturn federal law by initiative, or any other way.

The initiatives are important, rather, as indicators of popular decision-making. If they crash and burn, elected officials who by rote have been for decades imposing fierce penalties on marijuana-related activities will get the message that their approach is acceptable to the voters. A defeat for the initiatives would be a vote for the status quo – which, if you like it, would be the way to go. If you think pot law ought to be shake up, maybe moved toward a legalize/regulate/tax regime, then a yes vote will tend to move things in that direction.

Imagine the reaction in Congress and in the new presidential administration if on one hand all the marijuana initiatives failed? Or if they passed? There would be some rattling effect either way. If they pass, there’s a good chance similar measures would pass in more states in another couple of years, and possibly more a couple of years after that. Changes in the federal law, a brick wall at present, would start to crack severely after that.

That’s what this is about. These initiatives are a form of message-sending more than they’re anything else. If Oregon actually tried, for example, to implement its new initiative, with a free open market in marijuana, the feds would be unlikely to stand by. The details of the initiative – the industry-dominated regulatory board and much of the rest of it – would either never see the light of day, or never see daylight more than once.

The Times seems clearer about that than the Oregonian, which in its editorials seems to have been dancing around the core question of whether legalization is the way to go. It’s a fair policy question. It’s also the one that makes more sense to address than the phantoms which are never likely to become real.

On the substance border line

August 5, 2012
idahocolumnn

In remote mountains at about 7,000 feet, above the small Idaho farm town Grace – there must have been some crooked smiles among purveyors of the illicit as they passed through – developed one of the largest and more sophisticated criminal enterprises Idaho has recently seen.

A mass coalition of law enforcement agencies, even including the state national guard, last week swept into the Carbou County backcountry and found an estimated 40,000 marijuana plants. Street value estimates in such cases often are inflated, but it had to have been large. There was law enforcement talk of possible connections to a Mexican cartel; the size of the operation would argue in favor of that theory.

That was not the only big pot bust recently. Southwest of Jerome, 1,100 marijuana plants were found (in an aerial recon), also last week. The week before, they found another 6,500 plants in a Gooding County field.

The fact of these big recent grow finds isn’t proof of major recent growth of an Idaho marijuana industry. But it feels like evidence.

Could even be some cause and effect. Barring coincidence, if large organizations really are behind these big grow operations, what’s happening in neighboring states may have something to do with it.

Eight states may have marijuana-related measures, all aimed at liberalizing pot law, on their ballots this fall. In Oregon and Washington measures to legalize, tax and regulate have hit the ballot, and have a fair chance of passing. Colorado voters will consider a similar option. In these states, if the measures pass, there’ll be a big tussle with the federal government, whose anti-pot laws will not have changed at all. But there’ll also be further growth, probably a balloon, in above-the-table grow operations. In Oregon, there already are a number of large farming businesses openly growing marijuana, under the state’s medical marijuana law. Their formal status is pretty gray-area, even apart from the federal law, but passage of the state ballot issue almost certainly would mean an expansion.

Is it coincidence that more hidden grow operations are turning up in Idaho? Nationally, the Drug Enforcement Agency reports seizures overall fell 35 percent from 2010 to 2011. It may be that more of the pot traffic in Oregon and Washington, and some other states, is becoming internalized as it becomes available through near-conventional means. In Idaho, where even a modest proposal to legalize hemp (which has no psychotropic effect but does have many other marketable uses) has gone nowhere, the underground is, well, deeper underground. There may be less Oregon marketplace for traditional criminal lines of traffic, but these connections are relatively unchanged in Idaho.

State laws matter. When Washington liquor sales moved, some weeks ago, from state stores to private retail sales, prices bounced up. That’s probably a short-term phenomenon, but for the moment at least it has led to heavy traffic in lower-priced Idaho state liquor stores, presumably from Washington residents. (The same thing has happened on the Washington-Oregon border.)

What sort of ongoing effects might Idaho seat if there’s a sorta-kinda pot legalization, and marketplace, west of the Idaho line, and none to the east?

An edit hard to take seriously

July 30, 2012

The Oregonian is weighing in, after a fashion, on the upcoming pot legalization ballot issue (Measure 80), with not one but two opinion page pieces on Sunday. Both seem extremely determined to miss the point.

The editorial starts, and includes a bit of, the on-the-one-hand kind of approach, acknowledging the arguments for legalization. Then it goes on to this: "But the choice before Oregonians doesn't involve the expansion of a farcical medical marijuana program into a thoughtfully constructed legalization program. Instead, we're being asked to swap one farce for another."

The new farce, it argues, is the board which would regulate cannabis in the state, which under terms of the ballot would first be simply appointed by the governor, then include a majority of members (five of seven) which would come from the pot grower industry.

To be sure, that wouldn't be a good idea. It also wouldn't survive long; the legislature could rejigger the numbers and composition, and almost certainly would. The measure also includes a provision saying the new council would be assigned to do promotion of the product - not an unusual task for commodity commissions, but one you'd surely want on a leash. A leash which again, the legislature undoubtedly would provide. (In a case like this, it's really not much of a stretch of argue that the legislature would act.)

That's basically the sum of the editorial's argument against the measure.

Like many ballot issues, Measure 80 includes a section which includes some justification for itself, a series of statements either demonstrably true or at least as arguable as statements on many another ballot issue. With this one, though columnist Susan Nielson takes issue, not by way of disagreeing with the specifics (which might be hard to do) but making argument that sounds just this side of paranoid: "It appears eager to indoctrinate the next generation into thinking of marijuana use as no big deal and cannabis cultivation as downright patriotic."

Really? Pro-pot indoctrination?

Both articles carefully keep their arguments some distance from the real point of the ballot issue. The reality, as the pot advocates are well aware, is not that changing state law on the subject will immediately change reality on the ground. Marijuana is illegal under federal law, and if the measure passes in November it will remain so. The only real point of the measure is as an expression of opinion, of whether the current regime should stay in place, or some form of legalization should replace it. It's almost a vast, formalized opinion poll intended to be part of a national shake-up on the subject; that's why activists in a half-dozen states are trying to do something similar, to make a statement that might (if successful) be large enough to reverberate.

And you can argue legitimately about whether the country should move in that direction. But arguments like those in Sunday's Oregonian simply miss the point.

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