Should voters worry that if they pass Amendment 64, Coloradans would still be subject to federal prosecution for the cultivation, sale and possession of marijuana? That’s what opponents of Amendment 64 argue — adding, in partial contradiction, that the state would also become a magnet for visiting “marijuana tourists.” It’s not a pretty picture. Then again, neither is the picture of a federal government dismissing shifting public sentiment and the latest research regarding marijuana — a federal government, for example, that classifies marijuana under the Controlled Substances Act in the most restrictive Schedule I category, along with the likes of heroin and LSD.
Why, even cocaine and opium qualify for Schedule II. Indeed, the entire executive branch seems unable to shake off the intellectual legacy of J. Edgar Hoover, the FBI legend who famously equated pot with sex fiends and crime. Federal agencies either refuse to smooth away obstacles to research on the medical properties of the drug and misstate the latest science, or they insult the intelligence of members of Congress by trying to maintain, as the chief of the Drug Enforcement Administration did earlier this year, that marijuana is as dangerous as heroin. And Congress? Surely it has responded to the fact that nearly half of all Americans tell pollsters they want marijuana legalized and that 17 states and the District of Columbia now permit its use as a medicine for pain and nausea.
Why, no, our elected representatives and senators have hardly done a thing to bring the government’s approach into the 21st century. Nor will they, in all likelihood, without a further push. Some brave state may have to walk alone in crafting a framework for the sale and use of marijuana. As four academic authors of the book “Marijuana Legalization: What Everyone Needs to Know” (Oxford University Press, 2012) wrote recently in The American Interest, “State-level legalization would radically and rapidly change the landscape unless the federal government expanded its enforcement activities enormously.” “In practice,” they conclude, “that is extremely unlikely. State and local police forces employ about 750,000 sworn officers; the DEA has only 5,000 special agents.”
Being the first state to take the leap may not be ideal given the uncertainties, but neither is the status quo. And yet only voters in Colorado, Oregon and Washington have a chance this fall to send a message to Washington.
There is precedent, too. In 1923, New York’s legislature repealed its law incorporating provisions of Prohibition — more than a decade before Congress acted. As American Heritage explains, New York thus “placed the main burden of enforcing Prohibition on about 250 federal agents instead of 25,000 state and local officers. In much of the state Prohibition would effectively be dead except as an excuse to collect graft.” Even Colorado beat Congress to the repeal of Prohibition — although by a matter of only months. In highlighting how the ballot amendment conflicts with federal law, the “No on 64” campaign explains, “The U.S. Supreme Court has already made it clear that federal law supersedes state law in this area.”
True enough. And if federal agents really wanted to be obnoxious should 64 pass, they could probably shut down every licensed cultivation and sales outlet. But would they really risk the appearance of jackbooted bullies trampling on the fruits of popular will? If Justice Louis Brandeis was right and the states are the laboratories of democracy, then maybe it’s time that one or two of them took up the challenge again to see if there’s a better way.
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