DENVER, Colo. (Oct. 5, 2020) – Last Thursday, Colorado Gov. Jared Polis signed an executive order granting nearly 3,000 pardons for people convinced of possession of one ounce of marijuana or less. This drives another nail in the coffin for federal marijuana prohibition.
Polis exercised the power under a law signed in June giving him the authority to grant clemency for marijuana cases involving up to 2 ounces. He limited the pardons to cases involving one ounce or less because that’s the legal possession limit under Colorado law.
“We are finally cleaning up some of the inequities of the past by pardoning 2,732 convictions for Coloradans who simply had an ounce of marijuana or less,” Polis said in a press release. “It’s ridiculous how being written up for smoking a joint in the 1970’s has followed some Coloradans throughout their lives and gotten in the way of their success.”
The pardoned cases range from 1978 through 2012 when Colorado legalized marijuana for general use.
A number of states with legal marijuana have passed bills creating an expungement process for passed convictions. Colorado’s law goes further than many, allowing the governor to use his clemency power for cannabis offenses without consulting with prosecutors and judges involved in the cases. Those with convictions on their records do not have to apply for expungement. The process is automatic.
In the past, we’ve seen some opposition to marijuana legalization bills because the new laws generally leave those previously charged and convicted unprotected. The new Colorado law and Gov. Polis’ action demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Opening the door clears the way for additional steps. You can’t take the second step before you take the first.
EFFECT ON FEDERAL PROHIBITION
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
The legalization of cannabis in Colorado removed a huge layer of laws prohibiting the possession and use of marijuana, but federal prohibition remains in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.
Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.
A GROWING MOVEMENT
Along with Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit this year.
With 33 states including allowing cannabis for medical use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.
The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats.
Passage of these bills demonstrates another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way – the law tends to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.
