Obama's Pot Problem

Now that states have started legalizing recreational marijuana, will the president continue the government’s war on weed?

obama reefer sadness
Illustration by Victor Juhasz
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When voters in Colorado and Washington state legalized recreational marijuana in November, they thought they were declaring a cease-fire in the War on Drugs. Thanks to ballot initiatives that passed by wide margins on Election Day, adults 21 or older in both states can now legally possess up to an ounce of marijuana. The new laws also compel Colorado and Washington to license private businesses to cultivate and sell pot, and to levy taxes on the proceeds. Together, the two states expect to reap some $600 million annually in marijuana revenues for schools, roads and other projects. The only losers, in fact, will be the Mexican drug lords, who currently supply as much as two-thirds of America's pot.

Drug reformers can scarcely believe their landslide victories at the polls. "People expected this day would come, but most didn't expect it to come this soon," says Norm Stamper, a former Seattle police chief who campaigned for legalization. "This is the beginning of the end of prohibition."

But the war over pot may be far from over. Legalization has set Colorado and Washington on a collision course with the Obama administration, which has shown no sign of backing down on its full-scale assault on pot growers and distributors. Although the president pledged to go easy on medical marijuana – now legal in 18 states – he has actually launched more raids on state-sanctioned pot dispensaries than George W. Bush, and has threatened to prosecute state officials who oversee medical marijuana as if they were drug lords. And while the administration has yet to issue a definitive response to the two new laws, the Justice Department was quick to signal that it has no plans to heed the will of voters. "Enforcement of the Controlled Substances Act," the department announced in November, "remains unchanged."

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A big reason for the get-tough stance, say White House insiders, is that federal agencies like the Drug Enforcement Administration are staffed with hard-liners who have built their careers on going after pot. Michele Leonhart, a holdover from the Bush administration whom Obama has appointed to head the DEA, continues to maintain that pot is as dangerous as heroin – a position unsupported by either science or experience. When pressed on the point at a congressional hearing, Leonhart refused to concede any distinction between the two substances, lamely insisting that "all illegal drugs are bad."

"There are not many friends to legalization in this administration," says Kevin Sabet, director of the Drug Policy Institute at the University of Florida who served the White House as a top adviser on marijuana policy. In fact, the politician who coined the term "drug czar" – Joe Biden – continues to guide the administration's hard-line drug policy. "The vice president has a special interest in this issue," Sabet says. "As long as he is vice president, we're very far off from legalization being a reality."

There's no question that the votes in Colorado and Washington represent a historic shift in the War on Drugs. "This is a watershed moment," says Ethan Nadelmann, executive director of the Drug Policy Alliance. "People are standing up and saying that the drug war has gone too far." And drug reformers achieved the landmark victory with a creative new marketing blitz – one that sold legalization not to stoners, but to soccer moms.

The man behind Colorado's legalization campaign was Mason Tvert, a Denver activist who was radicalized against the drug war by two experiences as a teenager. First, in high school, a bout of binge drinking landed him in the hospital. Then, as a college freshman, he made what he believed was a healthier choice to smoke pot – only to get subpoenaed by a grand jury and grilled by campus police about his drug use. "It was ridiculous," Tvert recalls, "to be spending these law-enforcement resources worrying about whether a college student might or might not be using pot in his dorm room on the weekend."

In 2005, at age 22, Tvert founded Safer Alternative for Enjoyable Recreation (SAFER) to prompt a public conversation about the relative dangers of pot and booze. "We're punishing adults for making the rational, safer decision to use marijuana rather than alcohol, if that's what they prefer," says Tvert. "We're driving people to drink." That same year, fueled by support on college campuses, SAFER launched a ballot initiative to make Denver the world's first city to remove all criminal penalties for possession of marijuana by adults. Tvert cheekily branded then-mayor and now Colorado governor John Hickenlooper a "drug dealer" for owning a brew pub. The shoestring campaign, Tvert says, was only intended to raise awareness. "We just happened to win."

This year, Tvert and other drug reformers drew an even more explicit link between the two recreational drugs, naming their ballot initiative the "Regulate Marijuana Like Alcohol Act of 2012." Instead of simply urging people to vote against prohibition, the measure gave Coloradans a concrete reason to vote for legalization: Taxing pot would provide more money for schools, while freeing up cops from senseless pot busts would enable them to go after real criminals. "The public does not like marijuana," explains Brian Vicente, a Denver attorney who co-wrote the law. "What they like is community safety, tax revenue and better use of law enforcement."

Equally important to winning over mainstream voters was the plan to treat pot like alcohol. While the feds continue to view marijuana as contraband to be ferreted out by drug dogs and SWAT teams, Colorado and Washington will now entrust pot to the same regulators who keep tabs on Jameson and Jägermeister. The new laws charge the Washington State Liquor Control Board and the Colorado Department of Revenue – which already oversees medical marijuana – with issuing licenses for recreational marijuana to be sold in private, stand-alone stores. The Colorado law also gives local communities the right to prohibit commercial pot sales, much like a few "dry" counties across the country still ban liquor sales. "These will be specifically licensed marijuana retail stores," says Tvert. "It's not going to be popping up at Walmart. This is not going to force a marijuana store into a community that does not want it."

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The legalization campaign in Colorado was a grassroots, low-budget affair that triumphed in the face of strong opposition from Gov. Hickenlooper and the Denver Chamber of Commerce. The reform effort in Washington, by contrast, received more than half its $6.2 million in funding from billionaire drug reformers Peter Lewis and George Soros – and enjoyed mainstream support. The public face for legalization was Rick Steves, the avuncular PBS travel journalist – and dedicated pothead – who chipped in $450,000 to the cause. In Seattle, the mayor, city attorney and every member of the city council supported the measure. Unlike past efforts to turn back pot prohibition at the ballot box, which saw public support crater at the 11th hour, support for the measures in Colorado and Washington actually increased through Election Day: Both laws passed by at least 10 points. In Colorado, marijuana proved more popular than the president, trumping Obama's winning tally by more than 50,000 votes.

Regardless of how the federal government responds to the initiatives, many of their greatest benefits have already taken hold. In November, more than 200 Washington residents who had been charged with pot possession saw their cases dropped even before the new law went into effect. "There is no point in continuing to seek criminal penalties for conduct that will be legal next month," said Seattle prosecutor Dan Satterberg. Local police are now free to focus their resources on crimes of violence, and cops can no longer use the pretext of smelling dope as a license for unwarranted searches. "That gets us into so many cars and pockets and homes – illegally, inappropriately," says Neill Franklin, a retired narcotics officer who now directs Law Enforcement Against Prohibition. "That ends in Colorado and Washington – it ends."

A hilarious FAQ called "Marijwhatnow?" – issued by the Seattle police department – underscores the official shift in tactics:

Q: What happens if I get pulled over and I'm sober, but an officer or his K-9 buddy smells the ounce of Super Skunk I've got in my trunk? A: Each case stands on its own, but the smell of pot alone will not be reason to search a vehicle.

Despite the immediate benefits of the new laws, the question remains: What will the federal government do in response? Advocates of legalization are hoping the Obama administration will recognize that it's on the wrong side of history. "Everybody's predicting there's going to be a backlash, and that's a good bet," concedes Nadelmann. "But there's some reason to be optimistic that the feds won't jump – at least not right away."

The administration, he points out, has yet to make its intentions clear – and that, by itself, is a sign of progress. In 2010, Attorney General Eric Holder strongly denounced California's bid to regulate and tax marijuana before voters even had a chance to weigh in at the polls. This year, by contrast, the administration said nothing about the legalization bids in Colorado and Washington – even after nine former heads of the DEA issued a public letter decrying the administration's silence as "a tacit acceptance of these dangerous initiatives."

In addition, the provisions that directly flout the federal government's authority to regulate marijuana don't take effect right away – leaving time for state and federal authorities to negotiate a truce. In Colorado, the state isn't required to begin regulating and taxing pot until next July, while officials in Washington have until next December to unveil a regulatory plan. "There's no inherent need for a knee-jerk federal response," says Nadelmann.

Most important, the governors of both Colorado and Washington have vowed to respect the will of the voters – even though they personally opposed the new laws. Gov. Hickenlooper pledged that "we intend to follow through" with regulating and taxing marijuana. But he also sounded a note of caution to potheads. "Federal law still says marijuana is an illegal drug," he warned, "so don't break out the Cheetos or Goldfish too quickly."

If Obama were committed to drug reform – or simply to states' rights – he could immediately end DEA raids on those who grow and sell pot according to state law, and immediately order the Justice Department to make enforcement of federal marijuana laws the lowest priority of U.S. attorneys in states that choose to tax and regulate pot. He could also champion a bipartisan bill introduced by Rep. Diana DeGette, a Democrat from Colorado, that would give state marijuana regulation precedence over federal law – an approach that even anti-marijuana hard-liners have endorsed. As George W. Bush's former U.S. attorney for Colorado wrote in a post-election op-ed in the Denver Post: "Letting states 'opt out' of the Controlled Substances Act's prohibition against marijuana ought to be seriously considered."

When it comes to pot, the federal government is both impotent and omnipotent. What the feds cannot do is force either Colorado or Washington to impose criminal sanctions on pot possession. "They cannot say to states: You must keep arresting or throwing people in jail for simple use," says Sabet, the former White House adviser. "And they cannot compel the states to impose penalties on use." Individual pot smokers in Colorado and Washington will technically be in violation of federal law, but as a practical matter the DEA only has the resources to pursue high-level traffickers.

Where the federal government has great power to act is in shutting down state taxation and regulation of marijuana. Privately, both drug reformers and drug warriors believe the Obama administration is likely to take Colorado and Washington to court to keep them out of the pot business. "I would put money on it," says Sabet.

Unfortunately for drug reformers, the administration appears to have an open-and-shut case: Federal law trumps state law when the two contradict. What's more, the Supreme Court has spoken on marijuana law: In the 2005 case Gonzales v. Raich contesting medical marijuana in California, the court ruled that the federal government can regulate even tiny quantities of pot – including those grown and sold purely within state borders – because the drug is ultimately connected to interstate commerce. If the courts side with the administration, a judge could issue an immediate injunction blocking Washington and Colorado from regulating or taxing the growing and selling of pot – actions that would be considered trafficking under the Controlled Substances Act. The feds could also threaten to prosecute state employees tasked with implementing the new regulations – a hardball tactic the administration deployed last year to shut down state regulation of medical marijuana in Washington and Rhode Island.

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Such draconian measures would do nothing to curb marijuana use – particularly in Colorado, where the new law empowers citizens to grow up to six plants and share up to an ounce of their weed with other adults. "Thanks to homegrow," says Vicente, who coauthored the law, "we will still have legal adult access" – no matter how hard the feds crack down on commercial growers and retailers. But denying states the ability to regulate marijuana would eliminate the tax revenues that reformers promised voters. "If they want to act cynically," says Nadelmann, "the federal gambit would be to block regulation to make this as messy as possible" – in the hopes that the public would sour on pervasive, unregulated weed.

Ironically, if Obama succeeds in gutting the new state laws, he will essentially be serving the interests of foreign drug cartels. A study by the nonpartisan think tank Instituto Mexicano Para la Competitividad found that legalization in Colorado and Washington would deal a major blow to the cartels, depriving them of nearly a quarter of their annual drug revenues – unless the federal government decides to launch a "vigorous intervention." If that happens, pot profits would continue to flow to the cartels instead of to hard-hit state budgets. "Something's wrong," says Stamper, the former Seattle police chief, "when the lawbreakers and the law enforcers are on the same side."

In the end, the best defense against federal intervention may be other states standing up against prohibition. While pro-pot sentiment is strongest in the West, recent polls show that legalization is now beginning to enjoy majority support nationwide. "We're beyond the tipping point," says Stamper. Spurred by the victories in Colorado and Washington, legislators are already moving to legalize pot in Massachusetts, Rhode Island, Vermont, Maine and Iowa. "It's time for the Justice Department to recognize the sovereignty of the states," Gov. Jerry Brown of California declared. "We don't need some federal gendarme to come and tell us what to do."

Obama, the former constitutional-law professor, has relied on the expansive powers of the chief executive when it serves him politically – providing amnesty to a generation of Dream Act immigrants, or refusing to defend the Defense of Marriage Act in court. A one-time pothead who gave a shout-out to his dealer in his high school yearbook, Obama could single-handedly end the insanity of marijuana being treated like heroin under the Controlled Substances Act with nothing more than an executive order.

What the president needs to act boldly, reform advocates believe, is for the rising tide of public opinion to swamp the outdated bureaucracy of the War on Drugs. "The citizens have become more savvy about the drug war," says Franklin, the former narcotics cop. "They know this is not just a failed policy – they understand it's also a very destructive policy." With an eye on his legacy, Franklin says, Obama should treat pot prohibition like the costly misadventures in Iraq and Afghanistan: "This is another war for the president to end."

This story is from the December 20th, 2012 - January 3rd, 2013 issue of Rolling Stone.

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