The reach and will of the federal government to continue its crusade against weed could be sharply tested next fall, when initiatives to completely legalize marijuana cultivation and sale, eliminating all penalties, will be on statewide ballots in Washington and Colorado.
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“There is no requirement that a state mimic federal laws,” says the NORML founder. “The federal law would still be in place but the state can just ignore the whole field of marijuana.”
However, state laws can be found in a “positive conflict” by licensing behavior that is outlawed nationally– taxing and regulating pot sales, for example. “If the state of Washington wishes to eliminate all criminal penalties for possession and use of marijuana, they can do that,” Stroup says. “If they elect to go a step further, legalize, regulate and tax marijuana, along the lines of the alcohol model . . . it appears to be a positive conflict with federal law. That opens up the possibility for the federal government, if they choose, to go into court and seek an injunction under the Supremacy Clause.”
The result would be a de-facto marijuana free zone, where sale and possession go mostly unpunished, since the federal government would never have the resources to go after all the small-time sellers and users, but the state wouldn’t be allowed to regulate or collect taxes. The other option is for the feds to not file an injunction against state regulation measures and let them tax away, but that would essentially be admitting defeat on pot prohibition.
Times They Are a-Changin’
The crackdowns in California notwithstanding, most signs point to continued relaxation of pot laws. Previous state attempts to legalize it failed in California in 2010 and Colorado in 2006, but with public opinion polls steadily shifting in subsequent years, the country could be near a tipping point.
Even for people who don’t enjoy the drug on its merits or believe in the efficacy of medical use, for practical reasons alone it may be time for a change. Exploding prison populations since 1980 are mostly due to the war on drugs, and marijuana arrests in particular. Marijuana arrests cost $10.8 billion to state and local governments alone in 2006, according to one study. And there’s a question of fairness, with disproportionate arrests and sentencing for minority users and sellers despite evidence showing that white people smoke at similar or even greater rates than blacks. Even conservative evangelist Pat Robertson is now calling for looser drug laws due to the strains pot arrests put on the criminal justice system.
Will 2012 be the year the dominoes start to fall? Stay tuned."