Oct 062012
 October 6, 2012

Sensible WashingtonBy Sensible Washington

Our opposition to Initiative 502 was not a decision made in haste. We examined this measure from multiple angles, looking at the political ramifications, the legal implications, and the social benefits and consequences. We came to a clear conclusion: Initiative 502 is not a positive step forward for our state, and we can do better.

The initiative proposes dangerous and arbitrary policies, and sets up a legal distribution system that will fall to federal preemption. Here are the key reasons why, after deep consideration, our organization voted unanimously to oppose this measure (you can read our full analysis here):

Initiative 502 will retain cannabis as a schedule 1 controlled substance under state law. This classification declares cannabis equal to heroin in danger and illegality. Instead of legalization, it will set up a narrow exception for certain activities, such as possession of a small amount. However, gifting or sharing, such as passing a joint, will remain a felony charge. Home-growing, even a single plant, will remain as illegal as before. This is far from legalization.

The regulation and taxation system – if not the entire initiative – will be rendered invalid by the federal government. The initiative forces the state to license businesses for, and collect taxes from, a substance that is a schedule 1 drug under both federal and state law. This directly conflicts with our Federal Controlled Substances Act, as well as our State’s Uniform Controlled Substances Act, which will give the federal government complete legal authority to take it to federal court, and quickly preempt it. This will effectively take down either the entire initiative, or the specific parts that conflict with these acts — the distribution, regulation, and taxation system. Ultimately, no tax revenue would be produced from the proposed retail outlets.

Beyond the fact that it’s federally preemptable, the regulation system is outlandish. It hands complete control to the Washington State Liquor Control Board (WSLCB). They will control the THC in the cannabis sold, as well as the maximum number of retail outlets per county (New Section. Sec. 10., Pages 18-21).

The licensing system will lead to individuals spending years, even decades, in federal prison, despite the fact that those individuals will be following state law. Initiative 502 will force all business license applicants, whether growing or selling, to submit their fingerprints, along with the address of the location where they plan to grow or sell, to the FBI (New Section. Sec. 8., page 16). This is clearly criminal entrapment.

Initiative 502 mandates a new DUID law that will result in prosecution of the innocent. Supporters of this measure argue that they have the science and technology to justify the limit as appropriate, but this is entirely untrue. In fact, just last year, Colorado’s Legislature tasked a workgroup to examine the science surrounding the exact 5ng/ml THC limit that Initiative 502 sets up. The workgroup came to the conclusion not to recommend the limit, based primarily on a lack of science, and the potential for prosecuting innocent people. Colorado has rejected the limit, three times.

In our own state, Representative Roger Goodman introduced an even higher 8ng/ml limit for THC last year. It didn’t take long for him to revoke it. His reasoning was simple: in addition to lacking legislative support, the public objected vehemently, and he concluded after an analysis that there was no science to back it.

Even the U.S. Department of Transportation has stated: “It is not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations.”

The National Organization for the Reform of Marijuana Laws (NORML), in a widely read piece denouncing similar per se policies, stated: “There’s a new front in the “War on Drugs” and its name is DUID.”

The Marijuana Policy Project has called this same 5ng/ml limit “absurd”: “The bill would set a limit of five nanograms of THC per milliliter of whole blood where, above that limit, a driver is automatically considered to be driving under the influence of drugs. This is absurd.”

The truth is that the limit mandated in this initiative has no basis in science, and it is not fair policy. Patients and casual consumers will fail this test and be prosecuted for a life-altering DUID long after they’re impaired (a DUID is a harsher sentence than possession of an ounce). Reports have consistently shown this to be true. Even worse, the per se policy in Initiative 502 would include conclusive presumption, meaning you literally lose your right to defend yourself in court against allegations of impairment. This is bad policy.

Initiative 502 completely ignores, and endangers young adults. It mandates a zero-tolerance driving policy for those under 21 (Sec. 31., Page 46). This is unethical policy, and will lead to prosecution of those aged 16-21 simply for having consumed cannabis days or even weeks before (this zero tolerance policy is the only provision of the initiative that alters current law for those under 21). A DUID on a person’s record can affect their lives forever. This limit appears to ignore the fact that individuals aged 18-21 are allowed under state law to use doctor-recommended medical cannabis. No one should ever drive impaired, regardless of the substance, but zero-tolerance driving policies are never related to impairment.

Nathan Miller, when he was a legal analyst for the Marijuana Policy Project, put it perfectly: “Zero-tolerance laws aren’t about making roadways safer; they’re a disingenuous attempt to create a powerful, intrusive tool to root out those who use controlled substances such as marijuana, regardless of whether they operate an automobile under its influence. This type of justice is cruel, unusual, and bad public policy.”

Initiative 502 could end up increasing the black market. The initiative allows for possession of an ounce of dried cannabis, but retains the illegality of growing even a single plant. Beyond this, federal preemption will stop any legal retail outlet from opening or being licensed. That stated, we are left with a scenario that forces individuals to the same black market we’re trying to defeat in order to purchase their legal ounce. This is not the way to reform our cannabis polices, or stop the dangerous consequences of prohibition.

Initiative 502 will set a negative precedent for the rest of the country. If this initiative passes, it’s very likely that other efforts across the nation will follow a similarly faulty template — including the per se DUID policy that reform groups have fought against for decades, and which continues to be one of our Drug Czar’s top national policies. Those who support cannabis law reform need to get behind efforts such as Colorado’s Amendment 64, and Oregon’s Measure 80, and reject such faulty reform as Initiative 502. We cannot risk supporting a dangerous policy to achieve a potential political victory that’s likely to backfire, for the reasons mentioned below.

Initiative 502 will instill complacency, and meaningful reform will be pushed back for years. If I-502 passes, many people will be fooled into thinking that they just “legalized” cannabis.  The misperception and the resulting dismay could stop voters and our elected officials from supporting meaningful reform, or legal alterations, in the near future.

In addition, the average voter, who may not understand the intricacies of the issue, may see the new policy as “legalization failing” when this initiative doesn’t produce the promised benefits, when in reality it will have failed because of its massive legal faults.

It is likely that the most dangerous provision, the per se DUID limit, will stay in place for decades, since “drugged driving” laws are essentially never reduced (Consider this, a bill introduced by one of I-502’s primary sponsors to protect patients retroactively from the limit failed to even make it out of committee earlier this year).

- In conclusion, it is our position that the negative consequences of Initiative 502 outweigh any potential benefits. We encourage everyone to read the initiative and decide for themselves.

As an organization, we urge you to vote No. We’re simply not willing to implement dangerous new policies in exchange for faulty reform disguised as legalization.

About Johnny Green

Johnny Green is a marijuana activist from Oregon. He has a Bachelor's Degree in Public Policy. Follow Johnny Green on Facebook and Twitter. Also, feel free to email any concerns.
  • SteveSarich

    Well stated. It’s a scam….pure and simple. And they think we’re stupid enough to buy off on it.

    • YouAreAMonster

      No. Your dispensary – that’s a scam. A grey-market, patently illegal scam.

      Grow up Steve. An extra 100k in your pocket every year isn’t worth 9,000 annual arrests for possession.

      • SteveSarich

        And you’re just another anonymous I-502 spammer. Until we actually LEGALIZE cannabis, and remove all the state laws that make it ILLEGAL….the best we can expect is a “gray market”. So why don’t you support real legalization instead of this sham they’re mischaracterizing as “legalization”?

        • DoYouPreferUnrealisticFOOL?

          Here’s the problem with your proposal.

          IT WILL NEVER PASS. We have laws controlling the production and sale of alcohol and tobacco – we will have them for cannabis. Mainstream voters think you’re just a much of a lunatic as I do. They don’t support your dream of unregulated cannabis.

          If you sell alcohol without a liquor license, its a crime. If you sell it without paying taxes, its a felony.
          If you sell tobacco without a license, its a crime. If you sell it without paying taxes, its a VERY serious crime, and a law enforcement priority.

          Furthermore, removing the penalties your talking about will be FAR easier post 502. Right now that kind of radical change is a political anathema, no legislator would touch it, and it needlessly alienates voters. Pass 502, and the picture changes. The lobbying effort shifts from “lets upend every marijuana law we have” to “lets align our cannabis laws with those governing substances we make avail in the same way, (alcohol)”.

          The goals you put forward are unrealistic, and unappealing to the voters we need to make real changes to way we treat cannabis.

          Vote Yes on I-502.

          And FYI – the tightly regulated supply chain proposed by 502 is PRECISELY the opposite of a grey market. 502 creates a legal inconsistency between federal and state law. Grey markets are markets with no laws at all, I.e.unofficial supply. This is an important distinction you clearly don’t understand.

          • charles

            Your wrong. If no one will touch the ‘radical’ proposal, why has sitting officials roger goodmand and nick licatta and others endorse sensible? the washington state democrats endorses their 2010 effort.

            502 is terrible law, and the regulation system will never happen. if it passes, real reform could be pushed back for many many years.

          • PoliticalAwareness

            An “endorsement” by a city councilman, a single state representative and a political party with nothing to lose is MILES from the dozens of state senators and reps you’d need to get a bill past committee.

            And simply claiming “the regulations system will never happen” is an empty statement. The initiative may very well result in a federal lawsuit, but New Approach has the cash to fight (along with the AG), and NA specifically designed 502 to stand up to such a challenge.

            There is nothing in 502 which explicitly REQUIRES state officials to break federal law. (the standard for federal preemption). If it had the state of Washington actually growing and selling cannabis – preemption would be the issue the No’s claim. But it doesn’t and it isn’t.

            And all of this assumes that the Oct 16 challenge to Cannabis’ FEDERAL schedule 1 status will fail, when all signs point to success (namely the knockout punch of Irv Rosenfeld and the other FEDERAL medical marijuana patients).

            502 is an excellent law, that you don’t seem to fully understand. The total decriminalization of 1 oz for persons 21 and over is HUGE progress in and of itself (and progress the feds have absolutely no basis to challenge).

            If we don’t pass 502, we will be waiting until 2016.

            Vote YES on i-502

  • glen

    wow. i ddnt quite know what i was supporting before this. tyhank you.

    • http://disqus.com/notspicoli/ notSpicoli

      If you are relying on this article to change your decision I encourage you to dig further from before casing your vote for maintaing prohibiton,

      • glen

        ive heard both sides a lot but when it coms to things like the liquor board controlling thc and having to submit to fbi if your a grower is something 502 peeps just say is a lie. ive heard the 0 tolerance is lie. reading the sections of 502 this article poits to shows me its true and they lied.

        • GetTheFacts

          Its just a background check. Your not “submitting to the FBI”, the liquor board is simply utilizing NCIC.
          The FBI has no idea if you’re applying for a liquor license, applying for a government job, purchasing a firearm, applying for a concealed carry permit, or applying for a permit to grow, process or sell cannabis. To claim otherwise is simply false.

          And the liquor board won’t “control” THC anymore than they “control” alcohol proof.

          If someone lobbies hard enough I could see them banning the retail sale of isomerized THC (100% pure THC used in research, purified via complex chemistry) – but herbal cannabis, and lightly processed tinctures (bubble-hash etc) wont be the target of control (think beer, wine & bourbon vs Everclear).

          I’m glad to hear you’ve read the initiative, I wish more people would do the same.

        • mattp

          It’s irrelevant; growers would be no more forced to register with the FBI under I-502 than they are now. Growers who don’t want to follow that could simply break I-502 as they’re breaking current state law.

          Let’s not forget it’s currently against both federal and state law to grow marijuana right now; and those who choose to do so face significant criminal penalties. I-502 would only make it so there is a way they can avoid some of those penalties — by registering with the state. Those who choose not to do so would face the same risks that they do right now; no more, no less.

  • John

    Most of this is completely wrong, or hyperbole. Who would’ve thought the MMJ industry could have a vested interest?

    For example: ” and will lead to prosecution of those aged 16-21 simply for having consumed cannabis days or even weeks before”. You’re thinking of THC-COOH, which is a by-product of consuming THC which stays in your system for weeks and is tested for in normal drug tests. For DUI tests, they actually test for THC, which only is in your system when you’re high.

    • Mark

      john your completely wrong. checkout this study, which shows that people tested positive for ACTIVE WHOLE BLOOD THC like 502 tests for and they tested at 2ng up to 30 days after consumption. this shows people will fail the zero tolerance test weeks afyer consumption even if a patient.

      ““Substantial whole blood THC concentrations persist multiple days after drug discontinuation in heavy chronic cannabis users.”
      http://www.ncbi.nlm.nih.gov/pubmed/19804462

      • YouSuckAtLying

        That study is referring to COOH. “Whole Blood Concentration” means they tested unprocessed blood, rather than plasma. That study looks at who long ANY THC (read:COOH) remains in unprocessed blood. It doesn’t mention, or measure active THC (what is referenced by 502) in any way.

        Do you even know why you oppose this initiative? Or did your dispensary just tell you some lies, and you swallow them.

        Read the initiative and think for yourself.

        Vote YES on 502.

  • RoseE

    A very compelling endorsement of I-502 from Pacific Inlander:

    http://www.inlander.com/spokane/article-18466-forcing-a-solution.html

    “If 502 passes, would the Department of Justice, whether under Obama or
    Romney, really start messing with state’s rights over a policy that is
    failing so abjectly? Or would Congress take up the issue and grant
    states an opt-out clause on enforcing federal marijuana laws? Either
    way, 502 will redefine the debate. ”

    • Sensi Star

      Hi
      Rose, given that Initiative 502 calls for federal cooperation, and
      retains cannabis as a schedule 1 drug, while forcing the state to
      collect taxes from it, it’s quite clear that
      the initiative has no legal grounding to challenge the feds in a court
      battle, and they’ll be able to quickly render it invalid.

      If
      it isn’t rendered invalid, the licensing system will cause individuals
      to spend years, if not decades in federal prison as it forces all
      business applicants to submit their fingerprints directly to the FBI
      (criminal entrapment). It also gives the Liquor Control Board control
      over everything, such as the maximum amount of THC in the cannabis sold,
      as well as the maximum number of outlets per county, etc..

      • TryTellingTheTruth

        Wow, you know nothing about how background checks are conducted – or how a
        criminal case is built. See the above comment about FBI background
        checks for the reasons why you’re a liar.

        If the feds want to arrest people, they can’t just tell local or state LEOs to build their cases for them. THEY HAVE TO LEVEL FEDERAL CHARGES, that means affidavits written by federal agents, based on testimony by federal agents, filed by US attorneys. State and local cops can’t run around charging people with federal crimes, they simply don’t have the authority. (and don’t even try to mention local cops on federal task forces, because they work for the DEA, not the state of Washington)

        I’ve studies the initiative closely, you pulled this “federal cooperation” garbage out of nowhere. Karl Rove would be proud.

        Don’t listen to the lies, VOTE YES on I-502

  • George

    I sincerely hope if 502 fails, that medical marijuana for your state is repealed either by the state or feds.

    • Jimmy

      I agree in sentiment, but I could make due with Steve Sarich getting charged with tax evasion.

      These people are shameless.

  • RoseE

    Portugal decriminalized all drugs eleven years ago. Some predicted Portugal would turn into a drug tourist center; others predicted increased drug use. Neither prediction was accurate.
    The effects of the policy shift are:
    1. Portugal’s drug usage rates are now among the lowest of EU member states
    2. Drug addiction cut in half
    3. Drug related diseases including STDs and overdoses have been reduced even more than usage rates

    Vote YES on I-502

    http://www.businessinsider.com/portugal-drug-policy-decriminalization-works-2012-7

  • Holgatehawk

    If opponents of i502 had a better plan, it should have been passed years ago, or at least on the ballot. They fail to get normal endorsements, fail to get donations, so they cant hire signature gathers and simply push a change to the law that legalizes MJ without any checks or balances. Their plan for legalization is an outdated model of poor politics and I-502 basically learns from those mistakes and brings moderation to a law that gets people to vote for it. Allen Pierre in Portland, totally shady using donated funds for personal expenses just how Tim Eyman originally did. His initiative has no normal endorsements (retired law enforcement, current politicians, etc) has only 2,000$ to spend, what a loser. EAT A DICK!

    Vote Yes on I-502.

    • Sensi Star

      Hi Holgate, Sensible Washington ran Initiative 1068 in 2010 which would have put an end to adult cannabis prohibition, and roughly 200,000 of the 240,000 signatures needed were collected, on an all-volunteer basis (one of the most in Washington State history for a volunteer effort). We would of been paid onto the ballot by the SEIU (Service Employees International Union), but they backed out of paying for signature gatherers when the ACLU of Washington came out against the effort. They opposed it because it didn’t include specific regulations, when we all know specific regulations make an initiative preemptable when it’s regulating an illegal substance.

      As for us not getting “normal” endorsements, here’s a list of some of the endorsements Sensible Washington has garnered since 2010:

      – Washington State Democrats
      – King County Democratic Central Committee
      – The 23rd District Democrats
      – The 27th District Democrats
      – The 30th District Democrats
      – The 37th District Democrats
      – The 39th District Democrats
      – The 42st District Democrats
      – The Libertarian Party of Washington
      – Norm Stamper, former Seattle Police Chief
      – Judge Jim Gray, former Superior Court judge
      – Dr. Lester Grinspoon, Harvard Psyciatry Professor
      – Washington State Rep. Roger Goodman
      – Washington State Rep. Joe Fitzgibbon
      – Seattle City Councilman Nick Licatta
      – Kirkland City Councilman Toby Nixon (Republican)
      – Plus others..

      Sensible Washington’s method of reform is based on a model that works – REPEAL! If you remove cannabis from the controlled substances list under state law, the feds can’t do anything to remove or alter it. If you keep it a schedule 1 drug such as I-502 does – it’s still illegal and puts the whole initiative in direct conflict with our State and Federal Controlled Substances Act.

      Sensible Washington is filing a new initiative in January, similar to I-1068 but with some variations to make it more politically viable: http://sensiblewashington.org/blog/2012/initiative-in-the-works-to-legalize-cannabis-for-adults-21-extend-juvenile-jurisdiction/

      We’ve gained over 9,500 new volunteers since we collected those 200,000 signatures.

      • ProgressNow

        So…you’re opposing 502 because you want a redux of a initiative that failed to even make the ballot?

        If you think you can pass a better initiative in a year or 2, then do it – but don’t oppose 502.

        I don’t understand the logic – if you want to go further than 502 is, how would 2 years of the sky not falling post-502 harm your cause? 502 is all about pushing cannabis into the mainstream – how, exactly, does that do anything but help?

        Laws are not written in stone. Everything in 502 can be changed via later later initiatives, or the state legislature.

        And for the record, almost every single endorser you’ve claimed has also endorsed 502.

        Let’s take a step forward NOW, not in 2016. Vote YES on I-502

        • Sensi Star

          It failed to make the ballot, but considering we were just 40,000 signatures short, at a time when we had less endorsements and thousands less volunteers, we’re confident we can get an initiative on the ballot in 2013, and we’re confident that the voter’s of Washington state are ready to actually end cannabis prohibition for adults.

          As for Initiative 502, the Legislature can’t alter it with a majority vote for 2 years, and the likelihood of them altering any significant part of the bill, especially the DUID provision – unless they repeal the whole initiative – is slim to none. Elected officials will be able to hide behind either the deception that cannabis is already “legal” so we don’t need further things like home-grow (which is necessary in properly ending the black-market), or they’ll be able to hide behind the fact that the initiative was preempted so the feds will never allow legalization on the state level – when in reality it all has to do with our state’s controlled substances list.

          And it’s true, most if not all have also endorsed Initiative 502, but I think it clearly flies in the face of the idea that our initiative can’t be mainstream when, before we’re even on the ballot, we get endorsements from organizations like the Washington State Democrats and from individuals such as former Seattle Police Chief Norm Stamper.

          • ProgressNow

            Considering the fact that controversial initiatives have a much better chance of passage during presidential elections, I don’t see the 2 year freeze as an issue. And no offense, but a 2013 initiative is bad strategy. I think any legalization initiative, even 502, would fail in an off-year election. If we don’t pass 502 we’ll be waiting until 2016.

            I think you’re over estimating the difficulty of getting home-growing legalized. As soon as cannabis is legally available – the idea that people can’t grow for personal use gets pretty absurd. But right now, I think mainstream voters would see it as a too-large loophole in 502’s tight regulatory framework – the heart of 502’s mainstream support.

            Don’t get me wrong – I think Sensible Washington is a legitimate interest group, with admirable policy goals (unlike “No on 502″). I would vote for the initiative SW has proposed – but I think passing 502 is still the right move.

            We’ve got to get the ball rolling. Legalizing home-growing, treating under-21 possession exactly like alcohol, and getting a DUID per se limit closer to alcohol’s .08 – I believe all of these goals are a much easier sell post-502.

  • Alex Newhouse

    We have been dealing with misinformation for 70+ years, we don’t need any more.

    http://www.theweedblog.com/i-502-does-not-create-a-driving-while-under-the-influence-charge-with-a-0ngml-per-se-limit/

  • Igor Washetko

    Great article. Well written. Let me sum it up for those who didn’t get it no on 502. That is quite a scary law, really. The part of 502 that is really screwed is the thc blood limit. It is completely ridiculous and ha nothing to do with science let alone actual impairment, that is how fkd up you are to drive. That issue perhaps needs to be addressed but for most veteran drivers there really is no such impairment. It is nothing like alcohol. However for lightweight smokers impairment can most definitely be an issue. Important issue however the solution proposed in 502 is horrible. Vote no! ps glad I don’t live in Washington