This guest post is by Anthony Martinelli, treasurer of a campaign to oppose Initiative 502, which would legalize, regulate, and tax marijuana. We've run previous pieces opposing I-502 here and here. — Eds
As an individual who has worked publicly to end cannabis prohibition, and as someone who fully understands how painfully archaic and dangerous prohibition is, it's quite difficult to find myself so adamantly opposed to our state's Initiative 502. However, when giving it an impartial look (especially from a legal and constitutional standpoint), it becomes quite clear, at the very least, that things are not what they're being presented as.
For one: It’s not legalization. Initiative 502 simply sets up a legal exception in our state code for individuals to possess one ounce of dried cannabis (and a small amount of other cannabis-infused products), and for certain individuals to be licensed through the state (for cultivation, distribution, and sales, to be regulated through the Liquor Control Board). The latter, and any possibility of a regulated legal market, will be rendered invalid almost instantaneously given the fact that the initiative is legally faulty, and is absolutely not designed to withstand a federal challenge (you simply cannot force a state to accept taxes from a federally illegal substance and expect it to stand ground in a court battle). This will lead to it being rapidly preempted, leaving us with possession-only decrim for designated amounts of cannabis, and a per se Driving Under the Influence of Drugs (DUID) which many in the reform movement (including NORML) have fought against for years, and in some instances decades.
For those who say that this DUID provision would leave us no worse off, or no less protected than we are currently: Under Washington State law, an individual can be prosecuted for driving under the influence of cannabis, IF an officer can prove impairment (a system that our elected officials and law enforcement has found no need to lobby against). Under Initiative 502, that law would be altered to be a per se (strict liability) law of 5 ng/ml of THC content in a persons blood (zero tolerance if you’re under 21, despite the fact you can possess medical cannabis under 21 in our state). These are numbers that have absolutely no scientific consensus attached to them and science has shown patients and cannabis consumers can fail hours and even days after they last consumed cannabis (visit our website for more information). This has nothing to do with impairment or impaired driving, and rather is an attempt to gain votes from the propaganda-filled mainstream voter.
Worst off, and one of the largest and specific reason most of us oppose I-502 so adamantly, is that the authors of this initiative refused to include rebuttable presumption in their strict liability policy. In layman's terms, this means that if you’re above their designated limit (which refuses to acknowledge that we all metabolize cannabis at different rates: women and those who are overweight will store active THC longer): you’re instantly guilty of a DUID, and you lose your right to a fair trial. This leads you to be given no opportunity to present a legal defense in court, completely ignoring the 6th amendment of our Constitution.
This simply isn’t ethical or scientifically sound policy.
Initiative 502, beyond the issues I cover here, is riddled with other faults and inconsistencies (passing a joint to a friend in a circle would still be considered "marijuana distribution" under state law if it passes, for example), but clearly what's been the sticking point for most patients, cannabis consumers and legalization advocates who oppose I-502 is the per se DUID limit mentioned above (and altering it after passage is highly unlikely as "drugged" driving penalties are essentially never decreased, and a recent attempt to protect patients from the per se limit failed out of committee). Beyond the dangers of this limit, many fear the negative precedent it has the potential to set (pushing other reform efforts to adopt a similarly unethical per se policy). For many people these are serious issues.
And to be honest, when even endorsements from organization's like NORML come with the caveat that the per se DUID provision is “arbitrary, unscientific, and unnecessary”, it's going to be increasingly hard for the supporters of this initiative to continue to marginalize the opposition and their points of contention.