Tuesday, January 29, 2013

The Dream vs. Reality: Washington's I-502 Legalization

By special guest blogger Nelzino:

The Dream vs. Realities: Washington's I-502 Legalization


So it's legal, finally, in Washington and Colorado and all is well with the world.  But the provisions of Washington's I-502 and the coming state regulation and distribution of marijuana is a mixed blessing for stoners indeed, and there are various parts of this law that many of us find objectionable and short-sighted, if not outright ridiculous.  So to clear up some misconceptions one might have about this current version of marijuana law reform, here are some facts and concerns I and others have that should continue to be analyzed and discussed as the implementation of the law is developed this year.

Product and production is at issue, for it is not uncommon to fear that large farms would be primary providers since the number of growers will be limited without leeway for the production capacity limits of the license producers, which means initially there may be supply interruptions, especially since Washington state has a short growing season, meaning there will be only one or two harvests per year.  The result of such limited production, and the continued prohibition of boutique and "micro" grows, could be very disappointing.  With such a narrow production model we might have to smoke that autumn outdoor crop for the whole year.  Now, nobody wants to have their access to variety compromised, least of all as a consequence of shortsighted and ill-informed assumptions about the realities of the nation's number one cash crop, enshrined in legislation that could be very hard to reform further once it is on paper and considered by the straight population to be quite generous to the movement .

Although many of us cling to the vague hope of there being future adjustments to the law itself that will address these and other concerns, this is unlikely to happen for the foreseeable future, especially when you take into account how long and how tough the struggle to get any form of legalization of marijuana for recreational consumptions, in only two of fifty states in the union, including Colorado, just as it was for legalizing medical use.  And it has been 14 years since the passing of medical marijuana laws in Washington state in 1998.  Any such changes will likely have to be grass roots efforts and possibly through the state initiative process again, which can be, as has been, a gargantuan task to organize, collect signatures, and market to the public.  Despite the myth of stoner apathy and inaction, stoners in two states were very much motivated when this measure I-502 gained some traction among the non-stoner community, to say nothing of the support from prominent members of the law enforcement establishment and the likes of Seattle City Attorney Pete Holmes, who has long refused to prosecute simple possession charges, although it should be noted that it has been many years since the order came down from on high that the Seattle Police are to make marijuana possession their lowest law enforcement priority, and full legalization has always been the only obvious next step when you consider that King County, which contains most of the greater Seattle area, represents nearly one third of the voting population of the state and is reliably, irretrievably 'blue'.

It has always been a question of how long, o' lord, how long until decriminalization of some sort and degree would come, but it has been decades since the ball got seriously rolling with such advances as the establishment of NORML and other lesser known advocates of decriminalization like the Cannabis Defense Coalition, and even a thing like the sometimes dubious and easily lampooned (albeit often by themselves) form of advocacy that is the ever present and popular High Times magazine deserves some credit for directly or indirectly softening attitudes just by being seen on enough coffee tables to engender a certain familiarity with the subculture, and from familiarity comes acceptance.  Even my mother (not a smoker, mind you) told me of the relaxed attitude towards the herb in the '70s, where in Seattle's University District people would walk down the street openly and unabashedly smoking a doobie and nobody thought much about it.  Now I can't corroborate this account, for I was but a wee lad wandering unawares below any clouds of herb smoke at that time, and my parents may have been somewhat biased to the acceptance of marijuana in American life as long standing progressives with plenty of experience in the counterculture of the 60s and 70s in the Bay Area and Seattle, two preeminent zones of hemp culture, then as now.  But if it were not true, citizens of the entire state of Washington, with the wildly popular passage of I-502, may not so quickly have catapulted the state up to the national spotlight, even though Colorado got much of early press coverage since they passed their legalization law first (due to that stubborn time zone difference).

Now both states and their governments have been suddenly thrust onto the front line in the fight against the wider prohibition by the federal government, represented by the Drug Czar Gil Kerlkowsie (Seattle's former police chief), the DEA, FBI, and not an insignificant amount of manpower on the ground, also increasingly in the air, with the beginning of a proliferation of drones domestically adding to an ever increasing arsenal of electronic surveillance available to law enforcement.  It should also be noted that there have been commensurate expansions of search and seizure laws by the current and recent Supreme Courts, whose composition became increasingly conservative over the last few decades of largely conservative presidents and their appointments of justices willing to whittle away our basic human rights, and the Bill of Rights itself.

Alright, so you knew much or all of this already, but when you put it all together and add it to the fact that there could be a very real showdown between the powers that be in Washington and Colorado vs. the enormously greater (and better funded) powers in Washington D.C., up to and including President Obama, who won't surprise too many folks in the progressive community if he balks on relaxing the federal laws or rescheduling marijuana from a Class One controlled substance to, oh, say Class Five, like alcohol, which has proven and accepted by authorities on the subject to be the most dangerous drug in existence.

One of the most interesting things to come is to see which state will be the first and therefore legal precedent-setting battleground between federal legal supremacy and good ol' fashioned 'states rights' politicking that we have been seeing more and more of lately, most notably the political/legal state actions that have found themselves at loggerheads with the federal government and federal immigration policy, with the most obvious case probably being the battles in court and public opinion over Arizona and Alabama's new anti-immigrant (not to be confused with anti-immigration) statutes, like Arizona's anti-Mexican "show me yer papers" law, as propounded and stubbornly defended by the now legendary Sherrif Joe Arpaio in the increasingly frightening state of Arizona.  Don't lets forget that many of the earliest laws in America establishing marijuana prohibition specifically targeted immigrant populations, notably Mexicans (surprise!) and 'Hindoos'. 

And nothing has changed for marijuana in Arizona or Alabama either.  Or in any other state south of the Mason-Dixon line or East of the Rockies for that matter.  Not even the progressive Northeastern states have made their move (where ya at, Vermont?).  Although hope springs eternal, it may yet be some time before the movement really gains traction there on the political level it has in Washington and Colorado and with the as of yet unsuccessful but still significantly popular legalization attempts in Oregon and, of course, California, the largest and most populous state in the union and arguably the original player in the decriminalization, if not yet legalization, of cannabis, with simple possession in California being punishable only by a modest fine similar to that of a speeding ticket, and which state NORML has long classified as "decriminalized", at least last time I checked.

But for those of us here in Washington State, Decembers 6, 2012 was the day of release from prohibition of marijuana for recreational use.  Yet it comes with significant caveats.  So let's try to dispel some myths and introduce certain realities of I-502 and how they might affect the everyday stoner, or at least one who plans on procuring their herb legally if and when the state creates a system of distribution and production of it's own, although anyone who has any experience in the current subculture of cannabis in Washington State, and in America in general, will tell you that the black market of marijuana will not go away.  Ever.  That is unless there are changes in the law that permit all the current activities that are prohibited to become unregulated and fully legal.  But for now, here are some things about I-502 that make me say "Yay!", and some others that make me say "Boo" and/or "Hiss".

Yay!:  No more fear of arrest for possession, obviously.

Boo!:  But the allowed quantity is limited, albeit arguably generously, at least according to non-smokers or only occasional users, allowing one ounce or, several pounds of edibles, but a whopping 72 ounces of liquid cannabis infused product, which could even mean hash-oil, in which case that would be very generous by any measure indeed.

Hiss!:  The fact that they would only allow a few pounds of heavy, bulky brownies but 72 oz of liquid reveals 1.) how little the state understands this substance that has just become partially uncontrolled, and 2.) the long-established industry that surrounds it.

Yay!:  It's true that smoking in public is still prohibited (although that didn't stop Seattlites from having a huge public smokeout a couple hundred strong under the Space Needle, with bongs and all, on the day the new law took effect), and will be treated similarly to drinking in public.  But the penalty for doing so is quite low, at $50 per ticket, which makes it pretty unlikely that it will be much enforced, especially in Seattle.  However, discretion is advised, because it only takes one pinchy parent to raise a ruckus when their kid is exposed to the oh-so evil herb smoke/smoker.

Boo And Hiss!:  Supply/production is limited to only so many growers.  This is probably the second greatest concern for smokers because of the large number of factors this provision alone will impact.  First, if there are that few producers, there may not be enough legal supply to go around, of any quality at least.  Secondly, since there will be but few growers, they will probably be doing large grows outdoors, and most of us would agree, even in the Pacific Northwest, that it is the rare Washington outdoor product indeed that outshines herb grown in controlled indoor environments with year-round high intensity lighting, which for the record needn't mean hydroponic and can be just as organically produced as outdoor growing projects.  If the licensed grows are large, typically merely once per year harvest, due to our frustratingly short Washington growing season, then for much of the year we will be smoking stuff leftover from the year's one harvest, so that by the next harvest we may still be smoking year old product.  And just as importantly, if not more so, the variety (legally) available to consumers would certainly be constricted.  Less growers, less choices.  Elementary economics that anyone can grasp, and if the state truly wants to fully supply the needs and desires of the consumer, it must recognize and study the connoisseur culture that pervades marijuana users globally, but ever more so in Washington State, which has long been known as producing some of the best, if not THE best pot in the world, and is one of the places where were developed the modern indica strains that make up the bulk of traditional 'kind bud' varieties, accomplished through a long history of selective hybridization and advances in growing horticultural methodology tuned specifically to cannabis, and thus establishing the local standard of painstaking growing practices.  But this reputation could dissolve under a restricted supply market.

Yay!:  It will be easy to get some grass in a pinch, as long as the retail store hours are agreeable (unlike our recently disbanded state liquor stores).  But the black market always has more flexible hours, even if sometimes marijuana dealers may seem to move in slow-motion.

Boo!:  But what you actually get that way will be....whatever you get, since there will be little incentive for these chosen few producers to grow, much less develop, quality stuff if the state only offers a fixed $3 per gram for raw product, as stated in the law, and much more incentive to pull one over on clueless state officials who do not seem qualified to speak for, much less choose for, the marijuana consumer of today.  Hopefully that ignorance will change, and there are motivated folks with the knowledge trying to get involved with the Washington State Liquor Control Board, but how that shakes out is anybody's guess.  And the consumer has become veeeeery picky (are you not?) in the current age where there are even a few medical marijuana farmers markets where you can find hundreds of varieties of pot and innumerable cannabis products, all at very high quality levels in a varied and competitive retail environment.

Yay!:  Lotsa tax money, yeah, sure.  Well, not so sure actually.  Lord knows we need it, but are we actually gonna get it?  It is foolish to assume the black market business and customers will switch en masse to the state sanctioned stores, especially if the stores charge more than ur friendly local pot dealer, particularly if there is a cultivated relationship between customer and dealer, as is common in the pot world.  But ultimately, some tax cash is better than none.

No Effing Way!:  Because by taxing it multiple times, at 25% excise tax, nearing 10% sales tax, etc., the price of state-sponsored, legal marijuana will be jacked up to possibly as much as twice the present going rate of the black market (depending on quality)!  It is arguable that only those who have no present access to pot will resort to the stores selling state grass because they get both better quality and a better deal from their black market connections, and probably better hours as well, if experience with the Washington State Liquor Control Board, who will control and regulate the cannabis industry, tells us anything.  (Remember the ridiculously slim hours/days of operation of Washington State liquor stores?)

So in short, there seems to be a pretty weak theory behing the huge projected tax windfalls I-502 organizers promise:  that people will automatically switch from their current network of dealers to buying in state sanctioned stores, despite any price increases, variety decreases, and quality degradation.  No, no, Washington (and Colorado as well) will remain a place with a large and thriving black market, only now those in it will share in the traditions of the bootleggers of old, forever on the run from the "revenuers".  And doesn't that picture still look a lot like prohibition, especially if one is not allowed to grow their own herb for personal use in the way we currently allow home-brewing of beer?

Yay!:  Drug cartels from out of the country will be essentially forced out of the game, because their grass is already shunned as inferior, especially in Washington State, and no one will be forced to resort to Mexi-schwag if there is better product available down the street in a public store, and it is safe to say that anything grown any way up here will be superior to what comes from Mexico, Columbia, and if experience holds true, even Canadian smoke.  But realistically, there is not much cartel action up here anyway, with most imported marijuana coming from British Colombia and their enormous supply of the fabled "B.C Bud", or more fondly known by connoisseurs, albeit pejoratively, as "The Beaster", and that commerce does not typically involve organized crime in the same way that Mexican and Colombian drug juggernauts do.  So this supposed decrease in associated crime rates/easing law-enforcement costs is largely a non-issue here in Washington, although the impact in Colorado could be more profound due to their greater proximity to Mexico and arguably less developed domestic black market and quality control standards.

Big, long, and loud "BOOOO!":  The controversial, arbitrary, and legally toxic DUI provision that sets an arbitrary and scientifically unsound limit of 5 nano grams of THC as the threshold for intoxication, period.  It functions like the .08 BAC standard that is nearly universal in the U.S. for alcohol intoxication, and which provides the singularly damning tool for law enforcement to harass and persecute marijuana users, whether they are stoned or not.  We all know that THC builds up in fat tissue over time, and contrary to what proponents of the provision would like you to believe, there are studies claiming that 5 nano grams of THC in a heavy user is not uncommon even after many different length periods of abstinence, and such metabolism of THC varies dramatically from user to user, with women shown to retain detectable levels of THC significantly, and close to universally, longer than men, and at least one study I have seen has even suggested that there exist racial disparities in THC retention/metabolism.  These last two factors could suggest a potential for gender and racial discrimination, even unintentionally, in the prosecution of DUID cases (as if racial identity does not already play a role in arrests for marijuana and marijuana-related crimes).

If all this is true, then the arbitrary cannabis intoxication standard enshrined in the new law is mostly meaningless, and the most common refrain in the various studies I have seen on the subject is that nothing can be proven as to THC intoxication "from a single sample" of blood, etc., as it cannot establish time of last use to even the loosest standards of accuracy, especially when a person's tolerance to marijuana is not taken into account, which it of course never is.  And I'm not being unnecessarily alarmist, because it is easier than you might think to get nabbed for a cannabis-related DUI even while not under the influence.

What this means is that if you are a regular-to-heavy smoker, especially a legitimate medical marijuana user on high doses, then your privilege to drive has been effectively revoked, and you risk jail, huge legal bills, parole, probation, and forced rehab (including those cultish AA meetings and so forth), all for driving the day after you last smoked out.  Or the day after that.  Or even the day after that, and so on.  And then ya gotta ride the effin' bus, and that hurts too.  And stinks.  And is inefficient.  And dirty and.....well, never mind my gripes with the pathetic public transportation system in this state and nation.  But you'll be livin' it if law enforcement decides you look the part (and if you are visiting this blog, I'm willing to give solid odds that you do).  This law was based pretty much on one study (see:  Heustis, et al), but if you want to simply get yer Google on, you will find tons of studies that say pretty much whatever you wish to believe, just like anything on the internet.  But again, what was concluded most often in extensive studies was that analysis of any single sample, of anything testable from a person, will be inconclusive as to THC intoxication at the time the sample is taken.

I'm sure there is more to be said on all of the above issues, but you get the idea.

Sure, I would like to get the herb - the right kind of herb - legally, and as easily as going to the store for a six-pack.  I would like to see the state require and ensure the highest quality in the product they offer.  I would like to keep totally wasted people off the road fairly and effectively.  I would like for our budget-beleagured state government to have a sudden jump in revenue, just as much as the next stoner.

But if you ask me now, knowing what we do know presently - and we won't really know much for sure for most of 2013 until the state sets up it's regulated industry standards and mechanisms, since the state says they don't know enough yet for either - then I have to tell ya that it just ain't gonna happen like that.  And with the feds being who they are and doing what they traditionally do where drug policy is concerned, such implementation may not even happen at all, although there has been little signal from the other Washington as to what they will do, and aside from a reasonably well ranked federal official visiting our local officials recently, there has been little interaction/conversation between the two Washingtons on the subjects that are in constant discussion here in Seattle and even the sitting state government in Olympia.

For the record, I voted "no" on I-502, sure that we could do better, since it has been a long time since we have been in any fear of prosecution in my city of Seattle for possession, and I additionally have  my doctor's recommendation in my wallet as a shield for everywhere else.  But for now, for what's it's worth, I don't have to keep my curtains drawn when I spark up or worry about my clothes, breath, or home stankin' of the pungent plant.  None of us can argue that's not a huge improvement, so for now, it's good enough for me for today, if maybe not forever.  And of course ultimately it will require federal approval that for now seems more than a little uncertain.  So the conversation must go on and any stoner knows that further reform will be necessary before we can say marijuana is truly legal, not only in Colorado and Washington State, but in Washington D.C and for every American.  Still, I believe that if we continue to take the lead on this issue (Uraguay's recent marijuana legalization activities not withstanding), the rest of the world will undoubtedly follow.  Fingers crossed.


- Nelzino




3 comments:

  1. 1. "[T]here will be only one or two harvests per year ..." Cannabis will be produced out of public view, meaning largely indoors. Most patients I know produce cannabis on a monthly cycle -- or twelve harvests per year.

    2. Paragraphs 2-8 could be omitted and this would be a stronger piece of writing.

    3. Boo to legal possession of an ounce of pot, a pound of hash and a six-pack of hash oil?

    4. A followup hiss to a six-pack of hash oil because of "how little the state understands this substance"? Initiative 502 was a citizens' initiative, not legislation written by "the state."

    5. "Secondly, since there will be but few growers, they will probably be doing large grows outdoors ..." Where ever did you get the idea that there will be but few growers?

    6. A "no fucking way" to cannabis taxation? Seriously?

    The cannabis legalization world hasn't ended because we legalized cannabis. I appreciate the doom and gloom concern for what might come, but I'd also suggest a more positive outlook. Encourage people to get involved, to ask for the change you seek. Meet the liquor board people, they are surprisingly open and thoughtful. Provide readers a path forward rather than wordy complaints based on at least a few incorrect assumptions.

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  2. Mr. B.L,

    I think your complaints about this post seem like soundbites removed from context in which they were written. Mine are usually objections to method, vague definition of terms and other flaws that could hobble the project or be exploited by opponents to cannabis. For instance, the proportional incongruity of the possession limits between various forms/preparations of cannabis, but I was explicitly happy it's legal, just not happy with some greater legal and product ramifications. Same goes for proposed taxation as it seems unrealistic. Against taxation? Read it again. It's pointless to argue against any taxation for we'd never get legal herb without. For openers it's inconsistent with treatment of other intoxicants. But this version could raise prices too much, which makes the revenue projections likely way off, which in turn is problematic if revenue doesn't meet needs of services taxes are to fund, if implemented. Some revenue is better than none. But if price becomes too high, revenue will be lost because the state holds a smaller market share due to business lost to cheaper sources, i.e. the black market.
    Now, as for 'public space', a crop grown outside needn't be publicly visible, but simply requires enough space/property between the neighbors or roads and the crop to make visibility without a helicopter impossible, like groweres do now and would anyway, lest crops be stolen. How that will be addressed will be interesting. And outdoor crops will not turn monthly, as I said, and I didn't discuss cycles for indoor growing.
    Yes, the law did come from a citizens initiative, but the most important among the citizens were the various parties that might be deemed 'the state' who essentially vetted the project by association to their office, etc., which was instrumental, if not essential, in getting broad support. That the state and the kindly WSLCB recently put job postings out for one or more technical "analyst(s)" from outside the state apparatus to advise them on cannabis and how to set up the system suggests they not only in fact don't know diddly, but that they know they don't know diddly, especially on the cannabis science angle. I have heard at least one state official (can't cite them specifically at the moment) on the radio state proclaim their ignorance and that of the gov't. It seems that the vagaries of the law do not necessarily speak well of the 'citizens' authors, unless they calculated the odds on how to exploit the vague in the future, making a better law for cannabis consumers. As you request, I would love to "promote a path forward", but it's a little early for me to write a follow-up initiative to I-502, and we still don't know how it's all gonna shake out, so it seems we must make plans on many of these issues once the year has been used for better or worse by the state and the citizens who have it's ear. Even then it may take a minute after the system is established to demonstrate both it's functional and dysfunctional realities. Have any plans for the future incarnations of the law in your mind you'd like to hear about/say? I'm all ears.

    "The cannabis legalization world hasn't ended because we legalized cannabis". I couldn't agree more, and there would be no point discussing it if there was nothing to be gained in the future. My point was to explore things to change and clarify, because I don't think most folks expects cannabis law to be static, but assume that like many laws and regulations, it will morph and hopefully expand, as our liquor system just did (albeit hopefully no price /variety changes liquor sales suffered; two similar concerns that and that I believe could come, somewhat ironically, with state cannabis monopoly, even if the state did not run stores itself). Now, we wait.
    Thank you for your input.

    -Nelzino

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  3. "I think your complaints about this post seem like soundbites removed from context in which they were written."

    My feedback is positively intended, I assure you. I have not tried to omit the context of your words; indeed your post is right above my comment. I do suggest, again, that you edit down, as most of this wordy post leaves your writing less readable, thus less powerful.

    In re "public space," no such phrase exists in I-502 and I will repeat myself: legal cannabis will be produced indoors or, at least out of public view. A greenhouse may be practical, but pot that can be seen from the air is in public view.

    I don't get paragraph 3 of your response. I said that criticising "the state" is a bit misdirected as this is a citizen's initiative. You agree, then proceed to argue the ignorance of the liquor board before suggesting that supposed "vagaries" in the initiative language "do not necessarily speak well of the 'citizens' authors."

    Again, your points are getting lost amongst too many words. Don't be afraid to distill down your writing. Try to answer in one sentence: what is the point of this?

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