Marijuana Legalization Faces Federal Hurdles

In historic moves, Colorado and Washington state voted to legalize recreational use of marijuana on Tuesday. Its sale will be regulated and taxed, with some of the money going for drug education.

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Now a pair of historic votes among last night's many ballots measures. Voters in Colorado and Washington State passed initiatives legalizing the recreational use of marijuana. But as the governor of Colorado said last night, don't break out the Cheetos or Goldfish too quickly

NPR's Wendy Kaufman reports that the measures are in direct conflict with federal law.

WENDY KAUFMAN, BYLINE: In Colorado and Washington, adults 21 and older will be able to buy and keep small amounts of marijuana for personal use. Sales will be regulated and taxed. And in Washington, at least, a new explicit DUI standard for marijuana will go into effect.

Supporters of the measures point to the drug cartels and gangs that now control the marijuana trade and say the country needs a new approach.

Here's Rick Steves, the travel guru and a sponsor of the Washington initiative, speaking at a Seattle victory party last night.

RICK STEVES: I'll tell you one thing, the whole country is going to look at Washington State and perhaps Colorado, and recognize that this is the beginning of taking apart Prohibition one state at a time. That's how they did it 80 years ago against alcohol, that's how we are going to do it now against marijuana

(APPLAUSE)

KAUFMAN: To be sure, many supporters were probably focused more on the immediate impact of the laws. In Colorado, Cassandra Roberts, a manufacturing engineer, likes the idea the sale of pot will produce tax revenue for the state.

CASSANDRA ROBERTS: Everything I know about the drug, it's far less harmful than things legal now. So why not regulate it and get some money off it and fund our schools with it?

KAUFMAN: Seattle residents raised other issues.

STEVEN JONES: My name is Steven Jones and I'm a stockbroker. And I just think incarcerating people for small amounts of marijuana is not an asset to society and that we need to correct that.

KAUFMAN: Colleen Sexton, a medical technologist, agreed. Adding...

COLLEEN SEXTON: I think that the criminalization of marijuana causes much more problems than it's trying to prevent.

KAUFMAN: Do any of you have children?

SEXTON: I do.

KAUFMAN: Do you worry that by legalizing marijuana you will make it easier for him or her to get marijuana?

SEXTON: I don't. I believe that legalizing marijuana will actually make it more difficult for him to obtain it.

KAUFMAN: The new laws in Washington and Colorado set up a potential showdown with the federal government. Under federal law, possessing even small amounts of marijuana is a crime. And today, the U.S. Attorney in Seattle released a short statement saying: The Department of Justice's enforcement of the Controlled Substances Act remains unchanged and marijuana remains a Schedule 1 controlled substance.

States, and there are lots of them with medical marijuana laws, already run afoul of the law. And in some places, the federal government has moved to shut down marijuana dispensaries. But the federal government has not directly challenged the legality of the statutes themselves.

John McKay, a former U.S. Attorney in Seattle who played a big role in drafting the new Washington legalization measure, says when it comes to Initiative 502, the federal government will have a lot of discretion.

JOHN MCKAY: The first area of discretion would be whether they would choose to assert the criminal laws.

KAUFMAN: And clearly, McKay, who was for several years the federal government's top prosecutor here, doesn't see federal agents swooping in to arrest state sanctioned growers, nor people smoking pot in their living rooms. McKay says the federal government could also try to have the whole law thrown out, claiming federal preemption. But because there's no interstate commerce involved, he doesn't think that argument would prevail.

MCKAY: Our hope is that the federal government will look at the State of Washington and say this is a good faith attempt to address the regulation of this commodity, marijuana. And that, historically, the states have been laboratories for change. Let's see if this approach could work.

KAUFMAN: Informal conversations between federal officials and those who support the new state law have already began. And Colorado's governor says he's slated to talk to Attorney General Eric Holder tomorrow.

Wendy Kaufman, NPR News, Seattle.

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