Two States Legalize Marijuana but Conflicts With Federal Law Remain

While a majority of voters in Colorado and Washington State voted to legalize marijuana for recreational use, they appear to contradict federal law. The question some local authorities and legal scholars are starting to ask is will the Obama administration enforce existing federal statutes or turn the other cheek as they did with the Defense of Marriage Act when courts ruled parts of it unconstitutional.

Cannabis sativa plant
Cannabis sativa plant is seen in Buenos Aires, August 21, 2009. Argentina's Supreme Court Justice voted to decriminalize the small-scale use of drugs ranging from marijuana to crack cocaine on August 25, 2009, the latest Latin American country to shift its drug-fighting policies to traffickers. In a landmark ruling, the high court ruled it unconstitutional to prosecute drug use, arguing police and drug-fighting resources should be devoted to arresting dealers and trafficking rings. Picture taken August 21, 2009. |

Slightly over 53 percent of voters approved Referendum 64 in Colorado, which legalized casual use of the drug. It passed in Washington State by a similar margin.

Some states voted marijuana laws down. Oregon voters voted against legalizing the recreational use of the drug while voters in Arkansas voted not to allow marijuana use for medical purposes. Massachusetts voters did approve its use for medical or medicinal purposes.

Now voters in these Colorado and Washington State can smoke marijuana, commonly known as "pot," without fear of felony conviction. However, Colorado Gov. John Hickenlooper issued a cautious warning to state residents.

"That said, federal law still says marijuana is an illegal drug so don't break out the Cheetos or the Goldfish too quickly," he said.

Laws made in Washington supersede those made in a state capitol or in this case, by the voters themselves. Along these same lines, laws made at the state level cannot override laws and ordinances on the city and county level.

The question is, will the Department of Justice enforce existing federal drug laws?

The Controlled Substances Act, a federal law, prohibits the possession and sale of marijuana, going so far as to classify it as a Schedule 1 drug, placing it alongside cocaine, LSD and heroin.

Even before President Obama was re-elected to a second term on Tuesday, he led some to think he would treat marijuana laws similar to the Defense of Marriage Act that defines marriage as between a man and a woman. The White House has already signaled to the Department of Justice that the president may not want to enforce laws governing the use of casual marijuana use, thus allowing the states to pass and enforce their own drug laws.

Another issue is how shops in Colorado and Washington will obtain the product for sale. Will they have to grow their own supply or will they be allow to have it shipped in from other states or even other countries such as Mexico?

If implemented, the Colorado law will allow those 21 and older to purchase up to one ounce of marijuana at regulated retail stores, making possession legal. Residents still cannot use the drug in public and adults will be able to grow up to six plants at home.

Those who have been advocating for more liberal marijuana laws hope the feds will turn the other cheek.

Approximately 45 percent of all drug possession arrests last year involved marijuana. In Colorado, that comes to about 10,000 people and in Washington State, around 13,000.

"It's a conscious decision that [police] make to concentrate on cannabis but that's not really what the citizens want," Allen St. Pierre, executive director of marijuana law reform group NORML told Business Insider. "America's penchant for arresting and incarcerating people is really the problem," not marijuana. "They'd (Europe) never be so stupid as to waste time and tax dollars on this."

Nonetheless, nine former Drug Enforcement Administration chiefs sent a letter to Attorney General Eric Holder urging him to publicly oppose the ballot initiatives if they passed.

"To continue to remain silent conveys to the American public and the global community a tacit acceptance of these dangerous initiatives," wrote the former administrators, who oversaw the DEA under both Democratic and Republican presidents from 1973 to 2007. "We urge you to take a public position on these initiatives as soon as possible."

Holder has yet to respond to the letter but the DOJ does have the option of filing suit to block the laws from going into effect, just as it did after Arizona passed laws designed to crack down on immigration in August of 2010.

Legal scholars and law enforcement officials are conflicted by these new laws. Some say marijuana laws do not deter young adults and teens from using the drug, but prosecution can have damaging and long-lasting effects on a person's life.

"A kid can be tossed out of school or lose a college loan or scholarship," said William Martin of the Baker Institute Drug Policy Program. "A parent can lose custody of a child or be barred from subsidized housing. And conviction for a drug offense, even a misdemeanor, can make it extremely difficult to land a job – forever."

But Tom Gorman, who heads up the Rocky Mountain High-Intensity Drug Trafficking Area, has concerns about the pending new law. "If this passes, Colorado would have the most liberal marijuana laws in the developed world, more liberal than the Netherlands."

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