Big Brouhaha in DC as Legalization is Phased-In

Originally published at blog.NORML.org

The new marijuana laws recently approved by the voters of the District of Columbia (Initiative 71) by nearly 70 percent took effect last week, following a 30-day period in which the US Congress had the opportunity to override the provision, but our opponents did not have the votes.

So it is now perfectly legal in the District of Columbia to possess up to two ounces of marijuana; to cultivate up to six plants in the home, not more than three of which may be flowering; and to give away, but not sell, up to one ounce of marijuana to someone at least 21 years of age. It is one of the better decriminalization laws in the country, a welcome half-way step that is now law in 17 states as well as the District.

I say it is a half-way step, because while it legalizes the possession and use of marijuana by adults, it does not establish a legal, regulated market, such as those currently operating in Colorado and Washington, and soon to be up and running in Oregon and Alaska. (Voter initiatives in DC may not require the expenditure of city funds, so that was not an option). In DC, marijuana smokers will either have to cultivate their own marijuana in their home, or continue to buy their marijuana on the black market, with no quality controls to protect them from contaminants such as molds or pesticides, and no way to evaluate the strength of the product.

Decriminalization is obviously a giant step forward for any jurisdiction, as it ends the practice of treating marijuana smokers as criminals. Although in DC the elected City Council has already reduced the penalty for possession of up to one ounce of marijuana to a civil offense, punishable by a fine of $25, so the latest change will not be dramatic, and the changes will largely go unnoticed by the general public. Nonetheless, it is good to get rid of the fine altogether and finally make marijuana possession and cultivation legal.

Perhaps most significant, now that possession of two ounces of marijuana is legal in the District, the smell of marijuana, traditionally used by the police as legal justification to search the passenger compartment of a car without the need to obtain a search warrant, no longer provides probable cause for a search. It is impossible for the police to tell whether the marijuana they are smelling is more or less than the two ounce limit, so this much-abused police practice now must stop.

Similarly, the smell of marijuana when the police come to someone’s home has traditionally been used by the police as probable cause to obtain a search warrant for someone’s home; that common, abusive practice must now also end. So the new laws in the District will have the positive result of protecting our right to privacy and reinforcing our 4th Amendment protection against unreasonable searches and seizures.

Interestingly, Mayor Muriel Bowser and a majority of the DC City Council members were poised to develop and approve a set of regulations to license growers and dispensaries in the District, until the drug warriors in Congress used the budget bill approved at the end of the last Congress to preclude the District from spending any of its money to legalize marijuana. Some on the council have long supported more progressive marijuana laws, while others resent the interference of Congress in the local affairs in the District, which enjoys a limited form of “home rule.”

The anti-pot zealots in Congress, led by Rep. Andy Harris (R-MD), had thought their budget amendment would also stop the provisions of Initiative 71 from being implemented, but the mayor and City Council Chair Phil Mendelson and the new DC Attorney General all took the position that the initiative was “self-enacting” and required no expenditure of funds by the District, and they are treating the Congressional budget amendment as having no effect on the initiative, although they acknowledge it would block the Council from going further to regulate the market.

When the anti-marijuana ideologues in Congress saw that the elected leadership in the District were going to enforce the language of the new initiative, they publicly threatened to have the mayor and other city officials arrested! To the everlasting credit of Mayor Bowser, Council Chair Phil Mendelson and Police Chief Cathy Lanier, they held a joint press conference explaining what is and is not allowed by the new laws (no public smoking; no selling; no outdoor cultivation; and no possession on federal lands, which comprise roughly 29 percent of the District’s total land area), and announcing the new laws would take effect at 12:01am on Thursday, Feb. 26th.

It was wonderful to see a united defense of the right of the voters in the District of Columbia to determine their own marijuana policy, free from Congressional interference.

This situation may yet end up being resolved by the courts, but for the moment, the good guys are winning. As an aside, the mayor has now called for the City Council to adopt new legislation making it clear that Amsterdam-style “cannabis clubs” will not be tolerated in DC; a sop, I suppose, to the other side. We will try to stop the ban from being enacted. Smoking marijuana is a social activity, and there is no reason to limit marijuana smoking only to a private home. Hopefully we can find some middle ground that will permit smokers to exercise their new right in other private areas. This issue too may end up in the courts.

New Alaska Penalties Also Took Effect

The new legalization law recently approved by the voters in Alaska (Measure 2) calls for the establishment of licensed growers and sellers by the end of the year, but there too the parts of the new law eliminating all penalties for possession of up to one ounce of marijuana, and for cultivating up to six plants in the home, took effect last week. Once again, little will change initially for smokers in Alaska, since they have enjoyed protection from arrest or prosecution for possessing personal use amounts of marijuana in the home since 1978, because of a state Supreme Court decision, Ravin v State, finding such conduct protected by the right to privacy provisions in the state constitution.

But again, as in DC, the police will no longer be able to use the mere smell of marijuana as probable cause to search a vehicle, so the legal significance of the new law is enormous.

Oregon Law to Take Effect in Mid-Year

The new penalties approved by the voters in Oregon (Measure 91) will take effect on July 1, although the state has until Jan. 1, 2016 to implement the provisions regulating the cultivation and sale of marijuana. As of July 1, Oregonians will be legally permitted to possess up to one ounce of marijuana in public and up to eight ounces of marijuana in the home (and one pound of solid edibiles, 72-ounces of infused liquid, and one ounce of extracts), along with the right to grow up to four plants per household.

Until that time, possession of an ounce or less remains a non-criminal violation, carrying a fine-only, with no possibility of jail.

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This column was originally published on Marijuana.com.