High Times Have Never Felt So Low

While the rest of the nation was electing Donald Trump President Nov. 8, four states voted to legalize the sale and growing of marijuana under regulations somewhat stricter than those for alcohol.

California, Massachusetts, Nevada, and Maine all approved legalization initiatives, while Arizona rejected one. Eight states now allow the sale of recreational cannabis, and Washington, D.C. permits personal possession and home-growing. Meanwhile, Florida, Arkansas, and North Dakota voted to legalize medical marijuana, the first such measures in the South.

It was “a remarkable set of victories” that reflected “massive momentum” in popular support for legalization, Drug Policy Alliance head Ethan Nadelmann said on a telephone press conference the next day. But he worried that Trump could destroy many of those gains, especially if he appoints a hardline prohibitionist Attorney General.

In California, Proposition 64, the Adult Use of Marijuana Act, won 56 percent of the vote, piling up a margin of more than 1 million. It will let people 21 or older have and share up to one ounce of dried cannabis or 8 grams of concentrate, and grow up to six plants. The state will issue licenses for retailing, indoor and outdoor cultivation, and more, including “microlicenses” for small shops that both grow and sell it.

The only remaining state marijuana felonies, says Lynne Lyman, the Drug Policy Alliance’s California state director, would be selling it to a minor and using butane to make extracts at home. The about 6,000 people serving time in state prisons and jails for pot offenses could petition for release, about 1 million Californians could apply to have their criminal records expunged, and people convicted of drug charges would not be barred from the legal cannabis business.

Revenue from a 15 percent excise tax on sales and a cultivation tax will be mainly directed towards drug education and treatment, with smaller funds earmarked to help “communities disproportionately harmed by drug war policies” and to restore damage caused by pot-growing on public land. Gardens of more than 22,000 square feet would be prohibited for five years “to give the small farmers a head start,” according to Lyman.

Massachusetts’ Question 4 won by a narrower margin. It allows adults 21 and older to possess up to an ounce of marijuana, and grow up to six plants in their home. A state commission, funded by a 3.75 percent excise tax, would oversee the licensing of retail stores and commercial cultivation. Nevada’s new law is similar, except that the tax would be 15 percent and people could grow their own only if they live more than 25 miles from a store.

Maine’s Question 1 passed by barely 2,600 votes. It would let adults 21 and older possess up to 2½ ounces of marijuana, tax sales 10 percent, and allow licensed “retail social clubs” where adults could get high on the premises. But Gov. Paul LePage, a Trumpoid loudmouth, has said he would try to stop it from being implemented, on the grounds that it would force him to violate federal drug laws. In October, he said the initiative would be “deadly” and allow the sale of pot-laced candy that could “kill children and pets.”

The Trump administration could cause serious problems for states that have legalized marijuana. Growing and selling it are felonies under federal law. While more than 90 percent of drug prosecutions are under state law, federal law supersedes state law.

The current federal tolerance for pot farming and retail sales in states like Colorado rests on a 2013 memorandum from Deputy Attorney General James M. Cole, which said that federal prosecutors in states that have legalized recreational or medical marijuana should concentrate their resources on things like preventing sales to minors and stopping revenue from going to gangs or cartels. If the new Attorney General were to “repudiate the Cole memo” and authorize raids on cannabis businesses, Nadelmann said, that would have a “chilling effect.”

Trump’s pick for Attorney General, Sen. Jeff Sessions (R-Ala.) said at a Senate Judiciary Committee hearing in 2014 that marijuana could not be safer than alcohol because, “Lady Gaga says she’s addicted to it and it is not harmless.”

DPA legal director Tamar Todd is more optimistic. She said that if federal prosecutors decided to crack down on marijuana retailers, it might be difficult to get convictions in states that had voted to legalize it, and they might also encounter resistance from state officials who’d put effort into developing regulatory systems.

“I think the politics are such that they will have to respect state marijuana laws, even if they really don’t want to,” Tom Angell of the Marijuana Majority wrote in an e-mail. “Attacking broadly popular marijuana-law reforms will create huge distractions and political problems that the new administration just does not need.”

How might these votes affect the prospects for legalizing marijuana in New York? Public support for legalization is “very strong” here, says Nadelmann, and Massachusetts is right next door.

“Every time another state moves down this road, there is more pressure for New York to do the same,” state Sen. Liz Krueger (D-Manhattan) told the Village Voice in September. She has introduced a legalization bill in the last two legislative sessions, and plans to do it again next year.

On the other hand, both Gov. Andrew Cuomo and the Republican-controlled state Senate have opposed all but token changes to the state’s laws. In 2014, they insisted that the state’s medical-marijuana law allow only cannabis extracts and not actual herb. The GOP retained its Senate majority, which means Krueger’s bill can’t reach the floor without permission from the Republican leadership.

“If the Democrats had taken the state Senate, I’d be a lot more optimistic,” Nadelmann said. 

Steven Wishnia is former news editor for High Times and author of the Cannabis Companion.