Pubdate: Tue, 20 Nov 2012
Source: Denver Post (CO)
Copyright: 2012 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: Troy A. Eid
Note: Troy A. Eid was U.S. Attorney for Colorado under President 
George W. Bush, and is now in private practice.

AMENDMENT 64 AND THE WAY FORWARD

With Amendment 64's passage, Colorado voters expect marijuana to be 
treated like alcohol: regulated, taxed and made legally available to 
adults. Yet the federal Controlled Substances Act still criminalizes 
the cultivation, sale and possession of marijuana.

Having thrown down the gauntlet, what happens next?

Whether you voted for Amendment 64 or (like me) against it, honoring 
voters' will means putting differences aside and finding a workable 
national compromise. The status quo, based on an outmoded federal 
marijuana policy that gives state officials the Hobson's Choice of 
defying federal law or gambling on limited enforcement, isn't the answer.

No disrespect intended to the dedicated public servants who enforce 
the nation's prohibition against marijuana. They deserve our 
continued thanks and support. But federal marijuana policy doesn't 
reflect changing state priorities and public attitudes: Two states 
have passed state laws to legalize marijuana; 18 have exceptions for 
medicinal purposes. Only the federal law-making process can restore 
order amid this growing uncertainty.

It's not reassuring when Washington keeps telling Coloradans to be 
patient and await guidance from the U.S. Department of Justice. 
Justice's recent approach to enforcement hasn't been a model of 
clarity. There have been two separate (and largely contradictory) 
enforcement policies since President Obama took office, first 
liberalizing and then cracking down on medical marijuana.

In fairness, there's not much room for consistently exercising 
prosecutorial discretion. Federal law is clear. As recently as 2005, 
the Supreme Court in Gonzales vs. Raich held that states can't 
legalize marijuana even in small amounts used for medicinal purposes. 
Congress' authority to regulate interstate commerce, the court ruled, 
includes the power to outlaw marijuana.

Local leaders are taking matters into their own hands. When Denver 
District Attorney Mitch Morrissey and some other DAs announced they 
would no longer prosecute small amounts of marijuana possession, they 
acted in good faith to respect voters' will while not treading unduly 
on the federal interest at stake.

Yet anyone who relies on Amendment 64 still takes a risk, and maybe a 
big one. Consider, for example, the possibility of increased civil 
enforcement actions, which can be a force-multiplier for federal 
officials. Unlike criminal prosecutions, civil actions require 
comparatively less evidence of wrongdoing and don't generate much 
publicity. Federal prosecutors need only prove by a preponderance of 
evidence - instead of the "beyond a reasonable doubt" standard 
required for a criminal conviction - in order to seize private 
property connected to marijuana activities.

Pursuing such federal civil penalties against banks that lend money 
to marijuana growers, or landlords leasing retail storefronts that 
are supposed to open in 2014 under Amendment 64, is a possibility. 
All of this is unnecessary if the law is changed.

Rather than tolerate this uncertainty, Coloradans should seek 
statutory change. Letting states "opt out" of the Controlled 
Substances Act's prohibition against marijuana ought to be seriously 
considered. So should allowing the U.S. Food and Drug Administration 
to conduct a medical trial, with participants freed from criminal and 
civil liability, to identify marijuana's potential to be lawfully 
proscribed and dispensed according to scientifically acceptable 
clinical standards - the same process used for pharmaceuticals.

Any policy conversation must address the rising levels of marijuana 
use and abuse that, based on other countries' experience and 
Colorado's track record with Amendment 20, may result once marijuana 
is more available, especially to young people. It also should provide 
protections to thwart influence by organized crime in the domestic 
marijuana industry to make the U.S. and its neighbors more secure.

Whatever the scope of the discussion, it needs to happen in 
Washington, and soon. Colorado's experience with Amendment 20 
provides a unique opportunity to contribute to what should be a 
national debate. Past disagreements over Amendment 64 must not 
prevent us from coming together now.
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MAP posted-by: Jay Bergstrom