Few American cultural norms have changed as rapidly as the acceptance of marijuana use. Though the drug remains illegal at the federal level, 10 states and the District of Columbia have legalized recreational markets, all of which materialized just in the last five years.
The sea change started in the West. California legalized marijuana for medical use in 1996, and in 2012, voters in Washington and Colorado legalized recreational cannabis trade by enacting Initiative 502 and Amendment 64, respectively. The first recreational pot shops opened two years later. In 2018, cannabis taxes and fees generated $111.6 million in revenue for Colorado. Washington in 2017 netted $314.8 million in excise tax on $1.37 billion in cannabis sales.
Both states took risky bets. The federal government considers cannabis a Schedule 1 drug, meaning it has no medicinal value and a high potential for abuse. Even today, the feds have legal ground to interfere with state-run markets. Nonetheless, California, Nevada, and Oregon have followed suit and legalized recreational marijuana use; New Mexico could do so in 2020. Idaho and Wyoming are the only Western states where the drug remains completely illegal.
The liberalization is spreading to other drugs, too. This year, the cities of Denver and Oakland decriminalized hallucinogenic psilocybin mushrooms.
Alison Holcomb, now political director of the American Civil Liberties Union of Washington, previously was the ACLU’s director of drug policy reform and was I-502’s primary author. She saw legalization as one way to stem the mass incarceration of people of color. In Colorado, Mason Tvert felt marijuana was a more innocuous drug than alcohol and found its illegality nonsensical. He became the public face of the Marijuana Policy Project, which was instrumental in passing Amendment 64. Today, Tvert works with Vicente Sederberg, a law firm advising cannabis businesses.
Five years after the first recreational pot shops opened, Bitterroot caught up with Holcomb and Tvert to discuss their legalization work and the changing marijuana landscape. Their responses have been edited for brevity and clarity.
Bitterroot: What do you see as the major benefits of Initiative 502 in Washington and Amendment 64 in Colorado?
Alison Holcomb (AH): [Before decriminalization], cannabis was used as a gateway by some police officers to get people into the criminal justice system. For example, people who were driving while brown or black would get pulled over, and they would have a bit of marijuana in their car or residue from a joint that was enjoyed a few days earlier. That would end up escalating the contact, and lead to some collateral consequences.
So there’s the arrest, and then there’s being charged with the crime, and then there’s the conviction. A black Washingtonian was three times as likely to be arrested, charged, or convicted than a white Washingtonian, despite the fact that white Washingtonians were using cannabis at slightly higher rates.
The overwhelming majority of law enforcement contacts, arrest citations, charges, and convictions that were cannabis-related in Washington related to simple possession, rather than growing or selling. And so the significant impact was the reduction in arrests. That was pretty immediate.
Mason Tvert (MT): We now have a regulated system of licensed marijuana producers, product manufacturers, retailers, distributors and so on, and it is functioning as it was intended. Most adults who consume marijuana in Colorado are accessing it from this legal system. They’re purchasing it at licensed businesses instead of at the underground market, they are paying taxes on it, and the products are being tested and labeled and packaged. All those benefits associated with a regulated system are being felt.
How were the legalization campaigns different in Washington and Colorado, and why did each camp take the approach they did?
MT: One important difference is 502 [in Washington] was a statutory initiative, whereas 64 [in Colorado] was a constitutional initiative, so that played a role in how the measures were drafted. If you look at 502, it’s much longer and much more detailed. Sixty-four is much shorter and required the legislature to create much of the details. Washington also has a very different political environment. In Colorado, if we’d have done a statutory initiative, the legislature could have repealed it six months later [with a simple majority, whereas a constitutional amendment requires a two-thirds majority and must be approved by voters].
The other reason for doing a constitutional amendment is we felt it [would be easier to defend] against potential federal interference.
AH: Unlike some other states, it’s really easy to amend an initiative in Washington two years after passage. After that, you can amend it with a simple majority, just like any other piece of legislation. In fact, 502 has been amended several times since we passed it.
What compromises did you make in your proposal in the interest of getting it passed?
AH: The most significant and most contentious one that we faced at the time was the inclusion of the per se standard for a DUI, with the five nanograms of active THC [in a milliliter of the driver’s blood]. We took a lot of criticism for that, and fairly so. It definitely was an area in which the science was not solid, and THC behaves in a different way than alcohol does as it’s metabolized in the body.
The other compromise that we made that still haunts us to this day is to not include a provision allowing home-grow for personal use. We’re the only state that has adopted a legalization framework that still does not allow that. Really, I think the only reason that is the case is essentially industry capture. The industry wants to continue to have home-grow be prohibited because that, of course, gives them a bit of an edge in terms of market capture.
MT: We did allow home cultivation. Number one, we felt like it just made sense and should be the case. Even though we had polling that showed it wouldn’t perform as well, we felt it was logical. We were talking about regulating marijuana similar to alcohol, and they allow people to brew their own beer.
We did not include any language other than to say nothing in the initiative allowed people to drive impaired, so basically we already have laws on the books that say it’s illegal to drive while impaired by marijuana. We simply said nothing in this initiative changes those laws or prevents the legislature from creating new ones.
AH: I don’t have any regrets about [what was included in 502] at all. My goal was, let’s crack the wall and show other states that legalization can be done. Other states did follow suit, and other states have been improving on the policy. I’m glad we went first. And yeah, it was an imperfect law, but you know, just by the competitive nature of Washington state legislators, when it starts to bug them enough that all the other states have better policies, they’ll fix it.
What have been the unintended consequences of 502 and 64?
AH: The economic equity issues are a big deal. One of the major downsides to a strict regulatory structure is that the people who can afford to launch a business with such a cumbersome regulatory framework need access to capital, because banks aren’t offering you standard financing that they would another small business owner. So we unfortunately are still in this place of drug policies having a disparate impact in our communities.
People of color were the ones who suffered the most under cannabis prohibition, and they are not the ones who are benefiting from legalization, by and large. That’s a generalization, but it’s generally white male individuals with ready access to cash that are benefiting the most from cannabis legalization.
MT: I think some of the drawbacks we’ve seen are oftentimes not necessarily the result of the system of regulation or the laws that have passed, but of the areas or places that have not passed such laws. So for example, we have certain local governments that have prohibited sales, and that has made it harder to eliminate underground activity in some other states.
[Colorado officials] say they’re quite confident that the vast majority of Coloradans are accessing marijuana legally from licensed businesses, but we’ve got illegal cultivation taking place in some places.
Legalization has opened cannabis up to commercial research and development that some say is outpacing medical research and regulation. Vaping and the use of high-THC products like shatter is on the rise. Where does the responsibility fall to prevent youth and even adult use of these products? Are some concentrations too high for public consumption?
AH: There are two pressure points there. One is a company’s social responsibility: Is there an effective strategy for making them take a meaningful hit in their social capital, so they actually lose market share if they engage in ethically questionable business practices like promoting use of super-super high concentration products? The other pressure point is government regulation. There’s no reason why any state has to allow the sale of any particular cannabis product.
It’s gonna be next to impossible for somebody to convince me that the criminal justice system is a better way to address these issues than using marketplace pressures, or public health education, or anything else that doesn’t involve arresting somebody and throwing them in jail.
