Amendment 64: A Colorado Legalization Amendment

            On November 6th 2012, the historic Colorado Amendment 64 was passed. This popular initiative lead to Colorado becoming the first state to end marijuana prohibition in the country by legalizing marijuana possession. Enacted as Article 18, Section 16 of the state constitution, the law was to take effect as of January 2014; allowing personal use and regulation of marijuana for adults twenty-one and over.[1] The proposed initiative was submitted on January 4th 2012, and found sufficient on February 27th by the Secretary of State;[2] thus making it appear on the general ballot for the November election. The proposal outlines a statewide drug policy, in which consumption is permitted in a manner similar to alcohol, namely for recreational use, with equivalent offenses prescribed for driving under the influence. With the intent of enhancing tax revenue through the use of law enforcement resources, reducing unnecessary arrests as well as amplifying the idea of individual freedom, 55% of voting Colorado residents declared that use of marijuana should be legal and taxed.[3]

            As stated in the official initiative text, individuals must show proof of age before purchasing marijuana. Selling, distributing or transferring marijuana to minors and other individuals under the age of twenty-one shall remain illegal.[4] Essentially, Amendment 64 requires the state legislature to permit the cultivation, processing, and sale of industrial hemp, however, the legalization reform does not permit public consumption. An adult would not be punished under state or local law for consuming marijuana on private property unless prohibited by the property owner, but may be prosecuted for publicly engaging in cannabis consumption. Furthermore, under the Personal Use of Marijuana portion of the amendment, it states that the acts of possessing, growing, displaying, purchasing or transporting up to six marijuana plants, with only three flowering, are not unlawful and shall no longer be an offense under Colorado law.[5]

            Colorado’s road to reform regarding the medicinal and spiritual plant began with the state’s first medical marijuana bill introduced in 1979. The Dangerous Drugs Therapeutic Research Act allowed cancer and glaucoma patients to use medical marijuana. However, the program in which doctors had to prescribe the drug and patients were to pick up their medicine at the University of Colorado Health Sciences Center, was dependent on federal governmental approval which never came.[6] When California voters approved Proposition 215 in 1996, allowing the use and sale of medical marijuana,[7] Colorado proponents fought to get Amendment 19 on the ballot. They tried again in 2000, and succeeded by approving Amendment 20 which made Colorado the only state to legalize medical marijuana in its constitution; permitting consumption for patients with chronic weight loss, muscle spasms, seizures, severe pain and nausea.[8] With that said, the true “green rush” began on October 19th, 2009, when Deputy Attorney General David Ogden wrote a memo to all U.S. Attorneys advising them to consider the enforcement of federal drug laws among their lowest priorities when dealing with states’ legal medical marijuana patients and programs.[9] This pushed legalization proposals by cannabis activists, but only the campaign of Regulate Marijuana Like Alcohol, headed by Mason Tvert and attorney Brian Vicente,[10] had the momentum to make it onto the ballot.

            Naturally, despite alcohol and tobacco being substantially more addictive than marijuana, opposition due to potential for psychological dependency was expected and anticipated. Opposition groups such as No on 64 and Citizens Against Legalizing Marijuana, that trusted in the “gateway drug” theory, forecasted that Colorado would witness increased use of heavier drugs and societal costs would skyrocket. The proponents took the claims of legalization leading to traffic accidents and increased crime rates into consideration, but they rallied around the common-sense theme of comparing marijuana consumption to alcohol intake.[11] Furthermore, proponents from the Colorado Center on Law & Policy analyzed that taxing cannabis could lead to producing $60 million in new tax revenue and savings for the state.[12] Supporters of Amendment 64 advocated that legalization would create jobs in a new industry, and would simultaneously take marijuana out of the criminal element, therefore reducing crime rates and eliminating a black market. Among supporters of the initiative was former U.S. Representative and 2008 Republican Presidential Candidate Tom Tancredo who took on a role as marijuana legalization advocate, stating that throughout his career, he had never seen a failure as big as marijuana prohibition.[13]

            Abruptly following the passing of the law, Governor John Hickenlooper established efficient timelines for implementation, requiring that the Colorado Department of Revenue adopt all necessary regulations by July 1st 2013, and processing license applications on October 1st 2013. Hickenlooper, a vocal opponent of marijuana legalization, hired a Task Force chaired by the Governor’s chief legal counsel to identify the procedural issues that needed to be resolved. Additionally, the Task Force was also hired to offer proposals for legislative, regulatory and executive actions that needed to be taken to successfully implement Amendment 64.[14] As a result, House Bill 1317 and Senate Bill 283, set up the regulatory framework for Colorado; dictating how recreational marijuana should be grown, packaged and sold. The world’s first legal marijuana market, entailing a robust regulatory system, opened its doors for business starting January 1st 2014, allowing only medical marijuana dispensaries to apply for the recreational sales license for the first nine months. The initial recreational marijuana stores to open would only be able to sell the marijuana that they have grown themselves, but come October 2014, that restriction would be lifted so stand-alone growers and retailers could open for business.[15]

            Resembling the implementation applied by Governor Hickenlooper, the direct enforcement procedures of Amendment 64 were similarly regulated by the State Marijuana Enforcement Division of the Colorado Department of Revenue; who enforced medical and retail marijuana laws in an equitable manner including fiscal management policies, enforcement strategies and collaborative partnerships with stakeholders that establish public trust and value in the agency.[16] In other words, the Colorado Department of Revenue legislated not only security requirements, prevention measures and civil penalties for those who sell cannabis to minors, but also guidelines for the manufacturing process, labelling requirements, advertising restrictions and health and safety standards. If the license or the production batch numbers assigned to the retail marijuana cultivation facility is missing on the required label, or the container is not child-resistant, the Marijuana Enforcement Division is in charge of bringing legal action against a manufacturer, distributor or retailer for failure to comply with the labeling requirements. In accordance with mandates, the Colorado General Assembly provided the Marijuana Enforcement Division with the authority to make up the 12-43.3-101 and 12-43.4-101 Colorado Revised Statutes which are the Medical Marijuana and the Retail Marijuana protocols.[17] These regulation codes are expected to operate in accordance with the 24-4-101 Colorado Administrative Procedures Act, under which any Colorado Medical and Retail Marijuana industries are required to comply to procedures established with formal public comment hearings.[18]

            In the Gonzalez v. Raich case of 2005, the United States Supreme Court considered whether the Controlled Substances Act of 1970, a controversial regime that prohibited the manufacture, distribution or possession of controlled substances, was unconstitutional due to preventing individuals from possessing marijuana for medical use under California’s Compassionate Act. With this act being the biggest threat to Amendment 64; a 545 US 1 case citation was made – a decision by the Supreme Court, ruling that under the Commerce Clause of the United States Constitution, congress may still criminalize the production and use of homegrown cannabis, even if states approve of its use for medicinal purposes.[19] Fortunately, due to the Constitution granting federal and state governments certain spheres of sovereignty within, Amendment 64 had a chance of being on the ballot.

            Furthermore, in December 2014, Nebraska and Oklahoma submitted a motion to the Supreme Court in hopes of filing a complaint against the state of Colorado.[20] Alleging that Colorado was in conflict with the Controlled Substances Act as it allowed private actors in a “state-sanctioned and state-supervised industry” to grow, package and distribute marijuana, and claiming that they have suffered harm as a direct result of Amendment 64 due to Colorado’s Department of Revenue not being sufficient enough to prevent either interstate transfer or acquisition by criminal enterprises of marijuana sold legally in Colorado’s retail dispensaries; ergo cannabis was flowing into Nebraska and Oklahoma. The then-Colorado Attorney General John Suthers believed that the lawsuit was without merit, but had the Supreme Court agreed to forcing Colorado to criminalize marijuana once again, an expansion of federal power would have been represented at the expense of state autonomy and an additional layer of complication would have been put on the legalization of marijuana. However, the Cole Memorandum for all United States Attorneys by Deputy Attorney General James M. Cole subjected Guidance Regarding Marijuana Enforcement, provided comfort to those involved in Colorado’s marijuana market, and gave Colorado retailers, growers, distributors and consumers assurance that the federal government will not prosecute them for possessing or selling marijuana under Colorado law, as long as doing so does not undermine broader federal objectives, and the state is able to regulate the marijuana industry.[21]

            Alas, decrees of Congress have managed to remediate a systematic bias regarding legalization due to the political rhetoric surrounding marijuana; leading to a historical fear of cannabis that inflamed cultural and social bias within many departments of the federal government, incentivizing the continuance of bias through state and local authorities. In analyzing the biased pattern of enforcement, it is evident that even after legalization, there is still a related communal and racial prejudice that causes users to be marginalized by governmental and societal bigotry. In order to verify the claims of minorities receiving disparate treatment, a study by an independent firm was commissioned through the City Council in Boulder, Colorado, entitled Independent Analysis of Police Data and Review of Professional Complaint Processes.[22] The outcome of the study showed that racial minorities are still arrested at more than twice the rate that Caucasians are on cannabis-related charges, which indicates that the marijuana industry is struggling with a diversity problem; especially for an industry that was created by campaigns surrounding the institutional destruction of criminalization. Law enforcement practices that produce issues such as racial disparities persist, thus resulting in such arrests not changing since the passage of Amendment 64.

            As the industry came into full swing by cultivating, manufacturing and testing all cannabis along with cannabis by-products in-state, the proficiency of Amendment 64 is evident. While perceptions shared in society associated with illogical interpretations irrespective of objective facts remain, the benefits, such as the notion of personal freedom being solidified, the tax revenue boosting the state economy and the manifested reduction of marijuana related arrests, have influenced other states to consider legalizing marijuana. In fact, according to data from a March 2015 report by the Drug Policy Alliance entitled Colorado Marijuana Arrests After 64, total cases for marijuana possession decreased in Boulder County by 92.2% since 2010.[23] Additionally, with the Colorado Department of Revenue displaying marijuana tax reports on their website revealing the 2.9% tax on cannabis adding up to $135 million in marijuana revenue in 2015,[24] this bias is bound to shift from its roots as the field is still prospering.

            Further reform is always necessary; laws cannot prosper if they are not altered over time. Originally, Amendment 64 was intended to regulate marijuana in a similar manner to alcohol, but in practice, that is not what Colorado has been doing. When we wish to consume alcohol, we can freely go to a bar surrounded by our social circle and order an alcoholic beverage of our choice; we then have the option of proceeding to consume it in public. I would propose that just as we enact new laws to respond to changes in society, we apply the same measure to the legalization of marijuana. As we aspire to move toward a cannabis tolerant society, coffee-shop establishments similar to those of the Netherlands should be implemented for further economic growth, with the ultimate goal of additionally reducing unnecessary arrests.

References:

[1] From Article XVIII of the constitution of the state of Colorado, Section 16. Personal use and regulation of marijuana by M. Tvert & B. Vicente, 2011 (1) Purpose and Findings.

[2] From the Statement of Sufficiency, Proposed Initiative 2011-2012 #30 by S. Gessler, 2012.

[3] From Sensible Colorado, Amendment 64 FAQ. Overall, Amendment 64. 2012.

[4] From Article XVIII of the constitution of the state of Colorado, Section 16. Personal use and regulation of marijuana by M. Tvert & B. Vicente, 2011 (3) Personal Use of Marijuana.

[5] From Article XVIII of the constitution of the state of Colorado, Section 16. Personal use of marijuana by M. Tvert & B. Vicente, 2011 (3) Personal Use of Marijuana.

[6] Statutes, Ch. 71. House Bill 95-1020, Section 19 § 25-5-904 “Dangerous Drugs Therapeutic Research Program – (1) Establishment Participation

[7] From Text of Proposition 215. The California Compassionate Use Act, 1996. California Health & Safety Code 11362.5.

[8] From the Colorado Amendment 20, Medical Use of Marijuana 2000, Section 14, 2001.

[9] From the Memorandum for Selected United State Attorneys on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, by D. Ogden, October 19th 2009.

[10] From H.R. 1013 – 114th Congress, Regulate Marijuana Like Alcohol Act by M. Tvert & B. Vicente, 2015.

[11] From Marijuana Legalization in Colorado, Learned Lessons by D. Blake & J. Finlaw. Harvard Law & Policy Review, 2014.

[12] Analysis from the Colorado Center on LAW & POLICY, ‘Amendment 64 would produce $60 million in new revenue and savings for Colorado’ 2012.

[13] From Huffington Post – Tom Tancredo Backs Legal Weed: ‘Marijuana Prohibition Has Failed Us’ Sep. 2012.

[14] From Task Force Report on the Implementation of Amendment 64, ‘Regulation of Marijuana in Colorado’, 2013.

[15] From Huffington Post – ‘Marijuana Legalization: Colo. Gov. Hickenlooper Signs First Bill in History to Establish a Legal, Regulated Pot Market for Adults’ May 2013

[16] From the Colorado Department of Revenue, Section 1. Marijuana Enforcement by State of Colorado Enforcement Division, 2016.

[17] From Colorado Legal Resources: Official Publisher of the Colorado Revised Statutes, Section C.R.S. 12-43.3-101 & 12-43.4-101. Core Terms, 2016.

[18] From the Colorado Department of Revenue, Section 4. Laws: Regulations, 2016.

[19] From Going Green: An Analysis of Colorado’s Amendment 64 by S. Murphy. Section 3(A) Gonzales v. Raich.  Harvard Journal on Legislation, 2015.

[20] From Going Green: An Analysis of Colorado’s Amendment 64 by S. Murphy. Section 3(C) Nebraska & Oklahoma v. Colorado.  Harvard Journal on Legislation, 2015.

[21] From the Cole Memorandum for All United States Attorneys on Guidance Regarding Marijuana Enforcement, by J. Cole, August 29th, 2013.

[22] Study by Hillard Heintze, ‘Independent Analysis of Police Data and Review of Professional Complaint Processes’ 2016.

[23] Report by the Drug Policy Alliance, ‘Colorado Marijuana Arrests After 64’ 2015.

[24] From the Colorado Department of Revenue, Section 1. Marijuana Tax Data, ‘Total Marijuana Taxes, Licenses & Fees’ 2015.

One thought on “Amendment 64: A Colorado Legalization Amendment

  1. I found this to be really informative. Many articles about marijuana are emotion-based and arguments do not get in details with the process of the bill passing nor motives behind it. Well done whoever wrote this article, very convincing and I’m glad you ended by saying reform is still viable. Although highly controversial, it’s good to see supporters that are willing to negotiate both sides of the ethical claims regarding marijuana.

    Liked by 1 person

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