by Dr. Dominic Corva, Executive Director
Yesterday, the Washington State Liquor and Cannabis Board (“LCB”) announced the parameters of its legislatively-mandated study on the feasibility of home grow in Washington State. Although they will be taking public comment on the document, the LCB has defined two distinct options, neither of which may be acceptable to citizens who want what 8 other states and Washington D.C. have, the right to grow a limited number of plants in the privacy of their own home without having to register in some way. Let’s be clear — although they list three options, the third is “status quo” so really there are only two options on the table at the moment.
It comes down to LCB control over personal home grows, in which the LCB issues permits to applicants and tracks everything they do in the State traceability system; or local jurisdictional control over personal home grows, in which citizens register with and are regulated by local jurisdictions (cities and counties, presumably).
The first option would require that the LCB spend a great deal of money attempting to police who knows how many tiny operations across the state. This is something the underfunded agency definitely does not want to have to do, although if the legislature told them to they would probably try. It’s unlikely that the legislature will tell them to do something they are clearly not funded well enough to do.
The other option is more pragmatic — leave it to local jurisdictions to opt in our out; and local police to enforce or not. High upon the list of reasons the LCB lists not to do it is their impression that allowing home grow would run counter to the Cole Memo’s guidelines to prevent diversion and access by children. However, such a system would make home grow a privilege for citizens living in jurisdictions that would allow it. We could expect much of the State’s local municipalities to react in the same way they have for legal cannabis, banning or zoning home grows out of much of the State. In a sense we would be legislating State-local experiments within the Federal-State experiment.
Without going into too much detail, let’s identify the assumptions — the model of the world — underpinning the options the LCB is willing to consider.
- They are expanding the Cole Memo guidelines into policymaking guidelines, by defining the “diversion” injunction far more broadly that its original interpretation. In the original interpretation, the concern for diversion was read as strictly applying to the regulated markets in question. That is, States were charged with policing diversion out of regulated cannabis markets, not policing Federal prohibition writ large ie the segment of the black market that has nothing to do with the legal market. In so doing, the LCB is greatly expanding the scope of its policing mandate, effectively taking on the task of prohibition itself.
- I would point out that the legal market IS supposed to mitigate the black market, as they are clearly aware, but it is supposed to be doing so through civil rather than criminal governance. They are supposed to be creating a safe, highly accessible regulated market that consumers can choose over the black market. In my model of the world, I 502’s architect Alison Holcomb-advertised purpose was to help end the “failed” war on drugs and market creation was a nice collateral benefit, per City Attorney Pete Holmes’s words when Cannabis City inaugurated legal retail availability June 2015.
- This is a serious, serious tension between how the LCB understands its mandate and what the voters of Washington and anyone interested in ending the war on drugs want out of cannabis legalization. It is the assumption that makes reality-based policy impossible. If the LCB understands its mandate as prohibition-to-prop-up-legalization, then it will repeat all the mistakes of prohibition — namely, the impossible pursuit of perfect control that has wasted billions of taxpayer dollars and countless lives, in the name of protecting society from something it never needed to be protected from. Anyone who understands the history of drug control understands this. If the LCB does not understand the history of drug control, they have no business governing cannabis legalization.
- The necessity of a permit from the State not only creates a patchwork of local opt-ins and leave-outs. It also raises serious Federal constitutional questions around the right to privacy; and opens up the State to having to overturn Leary v. United States (1969), which successfully overturned the 1937 Marijuana Tax Stamp Act on the grounds of self-incrimination. That Supreme Court decision is why we are governed by a 1971 Public Health law, the Controlled Substances Act, instead of the original 1937 Prohibition law. If it’s not about medicine, it becomes about privacy. At that point I don’t see why a class action lawsuit on the grounds of that Supreme Court decision couldn’t overturn Washington’s legalization framework altogether, putting the LCB out of a job (again).
- The argument that home grow may increase access by children is an argument that requires the State to police parenting. Adult citizens with children should be assumed to be responsible, not irresponsible, and trusted to act in their children’s best interest. It’s way past high time to let parents raise their own children, in the privacy of their own homes, without assuming that poor parenting decisions should be regulated by a set of Federal guidelines that are interpreted so completely differently by every other State doing legalization.
- Washington State has been in open rebellion against unreasonable Federal policy for far more than just cannabis. Our Governor and our Attorney General have made hay out of resisting the Trump administration’s efforts to police immigration — one could say we are one of the leading States in that regard. Why should we be so cowardly in the face of Federal threats, especially when our legal cannabis system is more tightly controlled (and controllable) than every other State that has done it? This State insists on protecting its citizens and non-citizens from what it perceives as Federal overreach. We have room to rebel when it comes to legal cannabis, because we have the most tightly controlled system already (thanks to this LCB, already).
- Why is there a disconnect between the governor and AG’s general political attitude towards Federal overreach and its approach to cannabis policy? Unless some unprecedented flurry of citizen organization emerges, there’s no political capital to be gained by resisting Federal overreach with respect to cannabis policy. Governor Inslee and LCB chief Rick Garza are high school buddies. Inslee calls Garza “Ricky.” They are super-close, and it’s highly likely that Inslee basically doesn’t have any interest in contradicting his buddy over something that really doesn’t affect his political prospects.
- I want to stress that Rick Garza and the LCB aren’t acting out of evil intentions or even the desire for power, necessarily. The LCB was created to control post-prohibition alcohol markets. If it’s in their mandate, of course they see the need to fulfill that mandate. Rick Garza is also clearly on the other side of the culture wars — his attitudes towards cannabis are far more likely to reflect the American public at large’s assumptions about the dangers of cannabis, which didn’t change with legalization. Those dangers, as any rigorous student of drug policy history, reflected the politics of social control rather than any scientific or rational basis. In the 1930s it was about policing minorities and migrants. In the 1970s it was about policing minorities and the antiwar movement. Those laws are a monument to racism, not concern for the rights of free citizens, especially in the privacy of their own homes.
In the coming months there will be lots of reaction, and if history is any indication an utterly ineffective effort to steer us back towards reality-based policy. Prohibition fails to do anything but fund more policing and prop up black market prices, stimulating incentives to produce and putting production in the hands of elements that include, on the extreme spectrum, elements willing to use violence to manage risk. This is a historical fact.
Washington State has less to fear in terms of Federal intervention than any other State. This is a contemporary fact. Capitulating to the politics of fear is craven, not courageous, and certainly not progressive, which really is a Washington State brand of politics. That is a fact. We don’t deny climate change, we stand up for immigrant communities, we have same-sex marriage. Those are facts. It’s true that we we have a regressive State tax policy as well, so there are ways in which that brand isn’t terribly consistent.
The question is, how can the politics of home grow be granted the kind of consideration that climate change, immigration, and LGBTQ politics get. Why should the LCB buy into that frame? There are, at the moment, no effective organizing strategies that would allow them to do so. Let’s see what happens in the next three months. I really hope that we don’t repeat the track record of cannabis organizing in this state, which one of division and utter impotence.
1. “ They are expanding the Cole Memo guidelines into policymaking guidelines, by defining the “diversion” injunction far more broadly that its original interpretation. In the original interpretation, the concern for diversion was read as strictly applying to the regulated markets in question. That is, States were charged with policing diversion out of regulated cannabis markets, not policing Federal prohibition writ large ie the segment of the black market that has nothing to do with the legal market. In so doing, the LCB is greatly expanding the scope of its policing mandate, effectively taking on the task of prohibition itself.”
The Cole memo has no force of law. Sessions just made sure everyone knew that. It was initially and still is a tailor made excuse to get rid of medical marijuana and then over regulate recreational marijuana. The Democrats in power at the time wanted to take out the small time mom and pops and hand rec. over to big players and then convert medical marijuana into pill and oral applications. The Cole memo means nothing at this point…other than an excuse to over regulate in the name of diversion that all states currently spend billions on. The group in power actually wants diversion so they can keep their jobs chasing pot heads. Think about it. Each state currently gets 4 federal grants which all target marijuana diversion (even Washington State) Why in the world would we need a system to fight diversion..on top of the billions of dollars currently spent on diversion?
JAG grant, WSP eradication grant, Hidta grant, Washington State National Guard counter drug program. Looking further, I have found SOG (special operations groups, special investigations Unit) So in reality there are as many as 6 drug task force units in each county and this does not include the County Sheriffs regular narcotics units. All of them tasked with marijuana diversion. I guarantee you every other state has the same over lapping entities. Again, why place diversion on the backs of the marijuana sales system??? Especially without reducing the funds for the 6 programs in each county currently spending tax dollars?? It is madness. I would not stop at calling it expansion I would call it piling on. They get away with piling on because nobody shoves the current amounts already spent on diversion in our state and other states, in their faces.
2. “I would point out that the legal market IS supposed to mitigate the black market, as they are clearly aware, but it is supposed to be doing so through civil rather than criminal governance. They are supposed to be creating a safe, highly accessible regulated market that consumers can choose over the black market. In my model of the world, I 502’s architect Alison Holcomb-advertised purpose was to help end the “failed” war on drugs and market creation was a nice collateral benefit, per City Attorney Pete Holmes’s words when Cannabis City inaugurated legal retail availability June 2015.”
Yes, too bad it was just a soupy sales job. Don’t forget the property crimes angle. All they did was ignore the already over flowing diversion cup and then convinced the ignorant legislature they needed more diversion rather than explain they needed to re-shuffle the current amounts already spent on diversion. Law enforcement runs Olympia..has been for years. They snuck a 7th diversion program on the tax payer’s in the name of a Cole Memo that never had any force of law.. and never increased funding for property crimes.
3. “This is a serious, serious tension between how the LCB understands its mandate and what the voters of Washington and anyone interested in ending the war on drugs want out of cannabis legalization. It is the assumption that makes reality-based policy impossible. If the LCB understands its mandate as prohibition-to-prop-up-legalization, then it will repeat all the mistakes of prohibition — namely, the impossible pursuit of perfect control that has wasted billions of taxpayer dollars and countless lives, in the name of protecting society from something it never needed to be protected from. Anyone who understands the history of drug control understands this. If the LCB does not understand the history of drug control, they have no business governing cannabis legalization.”
I agree. They were chosen because they showed they knew how to conduct a regulatory capture regime. They did it with alcohol and they have been called on to do the same with pot. They were law enforcement top heavy from the start. They met with them in secret 17 times. They should have been removed from marijuana regulation after they were caught.
4. “The necessity of a permit from the State not only creates a patchwork of local opt-ins and leave-outs. It also raises serious Federal constitutional questions around the right to privacy; and opens up the State to having to overturn Leary v. United States (1969), which successfully overturned the 1937 Marijuana Tax Stamp Act on the grounds of self-incrimination. That Supreme Court decision is why we are governed by a 1971 Public Health law, the Controlled Substances Act, instead of the original 1937 Prohibition law. If it’s not about medicine, it becomes about privacy. At that point I don’t see why a class action lawsuit on the grounds of that Supreme Court decision couldn’t overturn Washington’s legalization framework altogether, putting the LCB out of a job (again)”.
It is all a joke. Marijuana was illegal when they needed to ban medical marijuana because it was a nuisance.(CAC v. Kent) Then the courts ruled marijuana was legal so they could collect taxes on medical marijuana sales without violating state organized crime statutes.(State of Washington v. Martin Nickerson) Washington State has never been able to adopt a law by reference. The CSA is not our law. We did not promulgate it a private organization did it and we adopted it by reference. When they tried to do that for our state building codes they realized they couldn’t, so they changed the building code process to properly promulgate those laws without violating the state constitution. That means they have to purchase the international building codes and publish them for public inspection with finding guides. Then they have to take public comments and then decide the regulations. Then they had to sunset the chosen regulations so they did not delegate their law making authority to an international treaty or a uniform law commission. Why don’t they have to do that for pot? Because we have had shitty fucking attorneys that could not see past their billfolds and wanted to keep making money off of prohibition to demand our state do it right(like the building codes)
5. “The argument that home grow may increase access by children is an argument that requires the State to police parenting. Adult citizens with children should be assumed to be responsible, not irresponsible, and trusted to act in their children’s best interest. It’s way past high time to let parents raise their own children, in the privacy of their own homes, without assuming that poor parenting decisions should be regulated by a set of Federal guidelines that are interpreted so completely differently by every other State doing legalization.”
It can be accessed if the parents purchase it. I am more worried about some neighbor kid
taking someones plants or worse someone with guns taking them because pot is still a
commodity. Here. here for the privacy argument. Too bad its a nanny state.
6. “Washington State has been in open rebellion against unreasonable Federal policy for far more than just cannabis. Our Governor and our Attorney General have made hay out of resisting the Trump administration’s efforts to police immigration — one could say we are one of the leading States in that regard. Why should we be so cowardly in the face of Federal threats, especially when our legal cannabis system is more tightly controlled (and controllable) than every other State that has done it? This State insists on protecting its citizens and non-citizens from what it perceives as Federal overreach. We have room to rebel when it comes to legal cannabis, because we have the most tightly controlled system already (thanks to this LCB, already).”
Washington State is not a rebel they are masters at fooling the public. The book has been out since medical cannabis came along. The feds have never wanted to make it appear as though it were outside interference. They have always resorted to bribing states to eradicate marijuana and violate their own laws (which they are still doing) The public does not understand that 903 of the federal CSA gives states authority to police controlled substances. The only way for the feds to stop them is to remove 903. They can’t strip Washington. Oregon, Colorado and others from authority under 903 because the states do more than 90 percent of marijuana enforcement.In other words they would have to 10x federal funding to do all the policing. The public also does not understand that the feds cannot create a niche in 903 for the legalization states without stripping the other staes of authority to police marijuana crimes. Likewise the U.S. Attorneys’s manual could never be changed to reflect an official marijuana policy change because it would strip the feds of the framework to police marijuana crimes in non-legalization states. That is why we got a memo instead of a federal policy in the federal register and official changes to the U.S. Attorney’s manual. If it was truly tightly controlled they would have no need to keep making arrests. Illegal home grows are still a fact of life here.. That is the real thanks we should be giving them. Thanks for keeping us from eliminating a war on drugs…you still seem to be fighting just as you did before.
7. ‘Why is there a disconnect between the governor and AG’s general political attitude towards Federal overreach and its approach to cannabis policy? Unless some unprecedented flurry of citizen organization emerges, there’s no political capital to be gained by resisting Federal overreach with respect to cannabis policy. Governor Inslee and LCB chief Rick Garza are high school buddies. Inslee calls Garza “Ricky.” They are super-close, and it’s highly likely that Inslee basically doesn’t have any interest in contradicting his buddy over something that really doesn’t affect his political prospects.”
I believe Garza met Inslee when he got work in Yakima. Inslee went to Ingraham. But they are buddies. There is no real disconnect. Silent Bob keeps signing federal grants that contradict our legalization. Silent Bob came through when he gave his opinion the cities could ban. As I stated there has been no federal over reach. They want money for bribes not money for DEA actions on a grand scale. They are out to leverage our grant hungry state. These are both big blue democrats we are talking about. Everybody knows it only takes money for the big blue D to bite. Soon Congress will appropriate the money and our state will sell marijuana while they are eradicating it..You know like we are now.
8. Horse Hockey Klinger. They are the driving force behind regulatory capture. They want to phase out all home grows…period. They are getting ready to hand over a market to a highest bidder.
This is no home grow study. This is a planned effort to eliminate all home growing and force everybody to buy from a few big time pot sources. Just like they did to alcohol.
Christopherson being involved is an absolute joke.