DENVER, Colo. (May 3, 2021) – Last Wednesday, the Colorado Senate gave final approval to a bill that would increase the amount of marijuana an individual can legally possess and streamline the process for sealing the records of past marijuana convictions, all despite ongoing federal cannabis prohibition.

Rep. Alex Valdez (D), along with 19 fellow Democrats, introduced House Bill 1090 (HB1090) on Feb. 16. The proposed law would increase the amount of marijuana an adult over 21 can possess from 1 ounce to two ounces.

Also under the law, courts would be required to approve requests to have prior criminal records relating to marijuana possession sealed without consulting with a district attorney.

The House passed HB1090 by a 45-19 vote. The Senate approved the measure by a 23-11 vote. It now goes to Gov. Jared Polis’ desk for his consideration.

According to Marijuana Moment, the policy change for sealing records could have a significant impact on gubernatorial pardons.

“Polis signed an executive order in October that granted clemency to almost 3,000 people convicted of possessing one ounce or less of marijuana. And while the legislation that enabled him to do that in an expedited way applied to possession cases involving up to two ounces, his office declined to pardon those with more than one ounce on their records because that amount violated the existing state law.”

In effect, the passage of this measure will further expand cannabis markets in Colorado despite continued federal prohibition.

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 in 2019. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election and Mississippi legalized medicinal cannabis. Earlier this year, New York legalized marijuana through legislative action.

With 36 states now allowing cannabis for medical use, and 18 legalizing for recreational adult 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.

The passage of HB1090 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.

WHAT’S NEXT

Gov. Polis will have 10 days from the date HB1090 is transmitted to his office to sign or veto the bill. If he takes no action, it will become law without his signature.


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