“Nobody thought it would happen,” said Alison Holcomb, the Washington ACLU attorney who authored Initiative 502, the landmark measure that voters passed to make marijuana legal in Washington State. “But it really wasn’t about legalizing marijuana – it was about the war on drugs which leads to mass incarceration of people on marijuana charges.”
Holcomb shared the story of the bumpy road I-502 took from inception to passage on Wednesday January 30, at “How Washington State Legalized Marijuana,” an event presented by TJSL’s Center for Law and Social Justice (CLSJ), directed by Professor Alex Kreit.
Although Holcomb shared statistics show that Blacks and Latinos were much more likely to be prosecuted before 502 passed, the campaign was sold to the voters on a cost savings basis – how many millions the justice system could save and how many millions, if not billions, the state would earn in revenue from taxes on the legalized and regulated sale of marijuana.
“The way to reform is to talk about money and monetary arguments,” Holcomb told the audience, “not to emphasize the racial disparities in marijuana prosecutions, which the voters just don’t want to listen to.”
Of course, now that 502 has been enacted into law, there are still major legal issues that have to be decided, according to Holcomb. The big question is whether the Federal Controlled Substances Act supersedes Washington State’s – or any state’s laws. That’s the federal preemption issue. The other issue, Holcomb says, is dual sovereignty between the states and the federal government – “Does the state law undermine the Controlled Substances Act? “
Holcomb feels that “federal law is not preempted unless state law requires someone to violate federal law – which is a positive conflict.” At the same time, under the Tenth Amendment, the federal government can’t force a state to make something illegal. "And the federal government can’t force a state to enforce federal laws," Holcomb said.
So far, U.S. Attorney General Eric Holder has been silent on the issue of whether the Justice Department will enforce its laws in Washington.
If there is litigation on the Washington State law, “it will be putting federal policy on trial,” Holcomb said. “Also, 502 didn’t rewrite Washington’s uniform drug code – it just created exceptions.”
The initiative created very strict controls on the growing, distribution and possession of marijuana in the state and the aim of the measure was to “replace criminalization with responsible public health policy,” said Holcomb.
The marijuana legalization campaign was spinning its wheels in the beginning, Holcomb pointed out, but got traction when the former U.S. Attorney for Western Washington John McKay made a TV commercial endorsing I-502. In it, he said, “Marijuana laws need to be reformed from top to bottom – they just don’t work. Filling our courts and jails has failed to reduce marijuana use.”
The stage is set for some kind of showdown over the new Washing State marijuana law.
“What’s going to happen?” Holcomb asked. “Consult your Magic Eight Ball.”
“The presentation given by Alison Holcomb was very eye-opening,” said Crystal Bagheri 2L, who attended the presentation. “ She was extremely knowledgeable in her field and the way the ACLU passed the Prop 502 initiative in Washington is commendable. I found it especially important to note that the new initiative could potentially make millions for the state and that the focus of the profits will be public health concerns.”