Colorado, Washington Begin Risky Legal Marijuana Sales

As Colorado and Washington open up their states to legal marijuana sales, their residents face myriad challenges as pioneers in a country that has otherwise outlawed the drug–from smuggling into other states to the federal government’s looming ability to crack down on marijuana growers.

The Associated Press released a report on Sunday detailing what it calls the “pitfalls” of being the first states to fully legalize the marijuana trade. The report cites the potential for smuggling into other states and the use of the drug by minors as among the risks the states were willing to take. Many of these alleged dangers, however, are mostly speculative–after all, no states have expanded the legal marijuana trade to this extent, so no one quite knows what the repercussions will be.

The AP notes few potential dangers in the increased medically regulated use of the drug itself other than those alleged by its opponents. While police in both states must be trained and prepared toaddress the potential increase in “driving high” incidents, both statespassed laws regarding driving while high analogous to drunk driving, leaving the response to such crimes a matter of execution. No one has any way of predicting whether such incidents will increase in frequency or if legalization will attract more responsible drug users.

The greatest dangers facing Colorado and Washington are much bigger Tenth Amendment issues. While then-Senator Obama promised an end to marijuana prosecutions in 2008, that promise went the way of the end of Gitmo. Attorney General Eric Holder has presided over nothing short of a reign of terror regarding marijuana prosecutions, charging 80% more Americans per year than did prosecutors under President Bush, to the tune of $500 million of American taxpayers’ dollars. The arrests have been anything but spread evenly across the estimated population of marijuana users; black Americans were four times more likely to be arrested than white Americans for marijuana use in 2010.

While President Obama has used federal marijuana laws more harshly than his predecessor, the federal government’s ability to regulate marijuana use at all comes from the 2004 Supreme Court decision Gonzales v. Raich, in which then-Attorney General Alberto Gonzales sought to continue prosecution of marijuana growers despite clear Tenth Amendment concerns. The Supreme Court ruled that cannabis growing is an interstate commerce issue, and therefore the federal government could override the freedom of states to draft their own laws regulating it.

The AP appears to take President Obama’s promise not to prosecute users in those states at face value, despite his record of raiding medical marijuana dispensaries in California. Among the most famous cases of individuals arrested for complying with state law is that of California resident Tom Carter, who was legally authorized to consume marijuana. He was arrested as part of a raid in the area that took his neighbor’s freedom as well. The Obama administration has made it clear to cannabis users that abiding by state law means little if the government decides it wants to arrest you.

The DEA has already raided dispensaries in Washington this past July as an ominous reminder that it simply can. While the AP article citing the pitfalls of legalization discusses the federal government only in passing, it does highlight one other major problem for the industry that could continue to benefit the dangerous black market. Incomplete integration of the law into current legislation means that banking is off-limits for most in the marijuana industry. While marijuana sales will be legal, debit cards will not be accepted, and bank accounts for businesses that traffic in marijuana use are illegal because the federal government prohibits banks from aiding businesses that break federal laws.

What all this means for legal cannabis use is that we are still decades from seeing the societal effects of a truly free market on a national level. For that, observers must look down south to a vastly different economy–Uruguay, where President José Mujica is defying UN conventions on the drug trade and allowing the free sale of marijuana for a dollar a gram. While the South American drug cartels are a major threat to the United States, they are obviously a much greater danger in their native land, one that Mujica hopes to weaken by pitting the unsavory cartels against a legal and open free market. 

No one yet knows whether Mujica will succeed, and his is a much greater risk than that of states in large part geographically isolated from the drug trade’s greatest dangers. However, any success down south will likely spur further calls for federal marijuana reform, if not outright legalization–calls Sen. Rand Paul has for a long time been making–of a drug whose supporters see as the target of a new Prohibition and whose detractors warn could change the face of American society forever.