Colorado’s Voting Haze: Options for Legalizing Marijuana in 2012
Propositions to legalize marijuana will be popping up on ballots this November across the country. Jeralyn wrote last week about Obama, Romney, Marijuana and Colorado, mentioning Colorado’s proposed Amendment 64. Now there’s a new contender attempting to enter the race. Article XXX: The Cannabis Re-Legalization Act (bill text here). And with the new proposed amendment comes the usual slew of talking points and misinformation that can leave us all voting in a haze.
I also briefly addressed the differences in recreational marijuana legalization amendments on the upcoming Colorado ballot in November. However, looking more in depth at the proposed amendments’ texts side-by-side, a much clearer picture emerges of the two radically different approaches to legalizing marijuana and the potential impact on everything from crime policy to worker's rights to child custody situations. And while Amendment 64 does take an important step in the right direction, Article XXX appears to be running full speed ahead.
proposes that persons 21 years and older be legally allowed to possess, purchase, and use up to one ounce of marijuana without any criminal penalty, and provides for the regulation and tax of marijuana like alcohol. The amendment also proposes that persons 21 years and older be allowed to grow up to six marijuana plants (only three of which can be mature) for personal use. However, using and growing marijuana plants would be limited in much the same way as [Colorado's] medical marijuana by preventing public consumption and requiring personal use plants be kept in a locked, enclosed space.
While this isn't a huge penalty decrease from current Colorado law, which punishes possession of less than two ounces as a mere petty offense and a $100 fine, it does represent significant relief from some of the real world consequences that come with a drug conviction, like being denied federal student loans.
Amendment 64 won't change other Colorado criminal laws like Driving Under the Influence of Drugs (marijuana DUIs) or distributing marijuana to minors. Employers, corporations, and individuals will still be able to limit marijuana use by their employees and possession on their property. And it won't help Colorado citizens charged in federal courts. But it is a small yet meaningful step forward towards ending the War on Drugs and replacing it with a sensible drug policy.
In contrast, Article XXX makes broad and sweeping changes that impact not only criminal law, but the interactions between state and federal law as well as the interaction between criminal and non-criminal state laws.
For starters, Article XXX would allow anyone 18 years and older to use marijuana, and has a provision that would allow someone under the age of 18 to use marijuana when directed by a physician and under parental supervision. And by "use marijuana," it means the "acquisition, possession, production, transportation, sale, distribution, presence in the body, consumption, cultivation, dispensation, or delivery of cannabis."
The proposed amendment also doesn't limit the amount to one ounce or less, or six plants of which three may be mature. Rather, possession appears to be limited by intent. Article XXX defines two different types of intent: Intent for Personal Use (meaning not for profit) and Intent for Commercial Use (meaning for profit). It completely does away with inferring intent from possession amounts, like the intent to distribute.
But Article XXX goes much further in gutting the Colorado marijuana laws. It intends to repeal every criminal statute related to marijuana, including the quantity-based prohibitions, sentence enhancements for multiple or previous convictions, drug-related driving offenses, and the Colorado Medical Marijuana Code. This amendment would also prohibit the use of NHTSA's standardized field sobriety tests for marijuana, along with forced blood, breath, or urine draws in all drug or alcohol-related driving offenses, including those involving accidents (Colorado law currently allows for forced blood draws in these situations).
In addition to repealing Colorado statutes, it would also repeal any municipal code that punishes marijuana-related activity, and any similar regulatory scheme enacted by the legislature or an administrative body.
How does Article XXX propose replacing the repealed laws? The amendment proposes creating the Colorado Cannabis Commission that would make recommendations for replacing the laws to the legislature based on the standard of "endangering public safety." This cannabis commission would be comprised of seven members appointed by the governor.
However, even if the legislature enacts new penal laws related to marijuana, the amendment is already two steps ahead. The first step is creating two new affirmative defenses for marijuana use. One based on the accused's reasonable belief that he or she was following the law, and one where an accused may argue that their actions conformed to the intent of Article XXX. The amendment would also require a trial by jury where an affirmative defense is raised and would allow civil rights suits against prosecutors who bring charges and lose.
The second step ahead of any possible marijuana penal law legislation is that the amendment would prohibit the use of jail time as a sanction, and instead proposes counseling as a more appropriate long-term solution. The amendment would also include relief for individuals previously convicted of marijuana-related offenses by recommending pardons for first-time non-violent offenders.
Another issue Article XXX takes on that Amendment 64 does not is the federal government. Article XXX would require the Colorado Attorney General to file suits against the federal government when needed, and would provide discretionary funding for the legal defense of Colorado citizens charged under federal marijuana laws.
But the real game-changer for federal-state interaction is that Article XXX would specifically prohibit the use of state resources spent to assist federal marijuana investigations.
No state or local executive officer, official, employee, contractor or agent shall ever assist agents of the federal government in any way to investigate, arrest, prosecute, search or seize the property of a Colorado citizen if the intent of the federal government is to punish that citizen for acts considered legal under this article. Any such assistance shall be grounds for dismissal or breach of contract.
Finally, Article XXX turns to Colorado's non-criminal consequences related to the stigma that marijuana has picked up by mere association with other narcotics. The amendment would strictly deny any penalty in cases of employment, insurance, benefits, or even child custody:
[No person shall be] penalized in any manner, nor denied any right or privilege, nor discriminated against, nor have their privacy violated, nor have inflicted on them any loss, suffering or pain as a retribution for personal cannabis use.
Article XXX goes far and beyond what Amendment 64 proposes to do. But it's not on the Colorado ballot yet, according to the supporting organization, Legalize2012.com, they're still trying to collect enough signatures to get on the ballot in November.
One curious note is how strongly the Article XXX supporters are coming down on Amendment 64. Their website is replete with negative voting call-to-actions and comparison charts that accuse Amendment 64 of being fear-based legislation. Despite this, Amendment 64 has the clear support of numerous pro-marijuana individuals and organizations, including many local city council members, the Colorado Democratic Party, the ACLU of Colorado, Sensible Colorado, and the Colorado Criminal Defense Bar. Amendment 64 is also supported by NORML. (Full disclosure: I'm a member of the Colorado Criminal Defense Bar and on the legal committee for NORML)
August 6, 2012 is the deadline for Article XXX supporters to turn in their signatures to the Secretary of State. We'll see soon if they both make the ballot. And given how drastically different the two approaches are, I'll be watching to see if any of the Amendment 64 supporters also throw their weight behind Article XXX. After all, some legalization is better than none, but is it better than full decriminalization?
Speaking for me only.
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