It has been a little over a year since voters in Colorado and Washington passed ballot measures legalizing marijuana. If you will be spending your holidays in Seattle or Denver and want to legally purchase a cheer-inducing leafy green plant during the trip, however, you will have to make do with a Christmas tree. At least until January 1, 2014, when the first stores licensed to sell recreational marijuana are expected to open up shop in Colorado.
The delay is not a bug. It is a feature of the laws, both of which direct state agenciesÔthe Liquor Control Board in Washington State and the Department of Revenue in Colorado—to iron out the regulatory details of marijuana legalization. To understand why this is so, it is helpful to separate users from sellers.
In both Colorado and Washington, the legal protections for users took effect more or less immediately, making it legal for anyone over twenty one to possess up to an ounce of marijuana for personal use. (In Colorado, adults may also grow up to six plants and transfer marijuana between one another "without remuneration.") Although this aspect of legalization raises some practical and legal issues—the need to retrain drug sniffing dogs, for example—it is a relatively straightforward policy to put into effect. Making it legal for someone to possess marijuana is really as simple as striking a few provisions from the state's criminal code.
When it comes to supplying marijuana, by contrast, legalization is a much trickier issue. Both laws aim to treat marijuana like alcohol. And as anyone who has ever tried to get a liquor license can attest, the manufacture and sale of alcohol is heavily regulated. Rather than try to develop a comprehensive regulatory system in advance, the ballot initiatives' drafters decided to include loose guidelines for regulating marijuana production and sale and leave the details to the administrative process.
Colorado has already finalized its marijuana rules and Washington officials are not far behind in completing theirs.
This means that 2014 is going to be a truly groundbreaking year for marijuana policy in the US. Colorado and Washington voters may have passed legalization in 2012, but 2014 is when legalization will actually take effect. It will bring the first licensed manufacturers, distributors, and retailers of recreational marijuana in the US.
The new year will also pose the first real test for the Department of Justice (DOJ)'s approach to state marijuana legalization laws. In August, the DOJ announced that it does not plan to sue Washington and Colorado to block the new laws. The DOJ also released new prosecutorial guidance that indicates it may limit the enforcement of federal drug laws in states that have legalized marijuana for recreational or medical purposes.
So far, it has been easy for federal prosecutors in Colorado and Washington to follow the DOJ's advisory memo. After all, there are not any recreational stores or manufacturers to prosecute. Whether local US Attorneys' offices will adhere to the DOJ's laissez-faire outlook once businesses are making and selling marijuana, however, remains to be seen.
In 2009, the DOJ issued a very similar memo concerning medical marijuana laws. It advised local federal prosecutors not to use their resources to bring cases against people operating in compliance with state medical marijuana laws. The New York Times even ran a front page story, boldly declaring: U.S. Won't Prosecute in States That Allow Medical Marijuana.
As it turned out, federal prosecutors and Drug Enforcement Administration agents did not think much of the 2009 memo's advice. And, once they began to ignore it by going after medical marijuana providers as intently as they had under President Bush, the DOJ did not step in to compel compliance with the memo.
Will federal officials abide by the DOJ's newest memo? Or, will we see a replay of what happened following the 2009 memo? In 2014, we are likely to have an answer.
Whatever approach federal prosecutors takes, however, the emergence of marijuana manufacturers and retailers in Colorado and Washington is likely to shine an even brighter light on the reality that when it comes to federal marijuana law, the status quo is not sustainable.
Medical marijuana is already legal in twenty-one states and activists say they hope to pass recreational marijuana legalization measures in 10 states by 2017. Unless this trend in public opinion and state law takes a sudden and dramatic U-turn, federal law will need to catch up.
The absurdity of the current state of affairs may be best encapsulated by the fact that a medical marijuana dispensary is now open and operating in Washington, DC, just blocks from the capitol. Yet in California, a dispensary owner was sentenced to ten years in federal prison at the beginning of the year.
It is impossible to square the idea that operating a medical marijuana business is a serious enough crime to warrant a ten year sentence with the reality that DOJ officials in the District of Columbia apparently don't have the will or the resources to shut down a similar business operating openly just blocks from them.
There is every reason to think that 2014 will either mark a tipping point or the beginning of a reversal. If legalization opponents are proven right and legalization turns out to be a disaster, then the state reforms of recent years may soon be little more than a short-lived experiment before a return to marijuana prohibition.
But if voters in other states like what they see in Colorado and Washington, it may not be long before we see a Democratic or Republican presidential nominee coming out in support of marijuana legalization. Certainly, in light of Colorado's swing state status, it is hart to imagine the 2016 contenders dismissing questions about marijuana legalization as insignificant, the way Mitt Romney and Barack Obama did not long ago.
Alex Kreit is an Associate Professor of Law at the Thomas Jefferson School of Law, where he is the Director of the Center for Law & Social Justice and Co-Director of the Criminal Law Fellowship Program. His courses taught include controlled substances and international and comparative drug control. From 2009 to 2010, Kreit served as Chair of the City of San Diego's Medical Marijuana Task Force.
Suggested citation: Alex Kreit, Marijuana Legalization in 2014: An Overview, JURIST - Forum, Nov. 26, 2013, http://jurist.org/forum/2013/11/alex-kreit-marijuana-legalization.php.
This article was prepared for publication by Michael Kalis, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at email@example.com