We Won on the Cannabis Front. Now What?

By Dale Schafer

There was a clear winner on November 8th and it was cannabis. Of all the victories, the passage of California’s Proposition 64 rings out as the most important. On a statewide level, adults over 21 already can possess up to an ounce of flower or eight grams of concentrate. Adults can also share with other adults in private places. I’m hearing from my attorney friends that multiple cannabis charges are being lowered or dismissed because of the change in criminal laws. Down the road, non-medical cannabis licenses will fold into the nascent medical regulatory and licensing schemes currently being worked on at the state level, while local jurisdictions engage in knee-jerk bans or ordinances to deal with what is coming.

I was hoping that the passage of Prop 64 and the other medical and non-medical ballot initiatives around the country would bring some clarity and, to a certain extent, they did. However, the election of Donald Trump also created much anxiety about the federal role in the next phase of these growing cannabis movements. What will the next administration do with the Cole Memo and all it represents? What will “legal” states do in response to attempts by the federal government to roll back progress toward states’ rights over cannabis within their borders?

California, the most populous, politically powerful and economically influential state in the Union, has decided to license and allow all adults, and ill people who may benefit, to use cannabis without state sanctions. Further, a legal licensing, regulatory and taxing scheme is on its way. All of this is in violation of federal law. Clearly, two generations of all-out enforcement efforts have not controlled cannabis production and use in California, or in any other state for that matter. The voters in California voted to recognize that reality and begin to change the cannabis paradigm away from prohibition and toward legality.

President-elect Trump has shouted the law-and-order mantra that we old folks recognize from the Nixon era. His choice of Alabama Republican Jeff Sessions for Attorney General does not bode well for acceptance and tolerance of cannabis states’ rights. The Supreme Court in Gonzales v. Raich affirmed the federal government’s legal right to control intrastate cannabis activities under the Controlled Substances Act. However, all Federal law enforcement agents, working with all local and state law enforcement officers, cannot actually stop the advancement of cannabis laws at the state level or the normalization of cannabis into the fabric of American life. What will be done?

When Angel Raich and Diane Monson took their case to the Supreme Court, there were no state regulations, licenses or laws for what they proposed. That has changed. Those needed regulations, licenses and laws are, or soon will, exist. With “blue” states expressing concerns about the Trump election, one would hope that “legal” cannabis states now have an incentive to mount a state level defense of their laws and not require individuals to fight the federal government alone. Cannabis also has now grown beyond strictly “blue” vs. “red” battles and it clearly was more popular than Trump was in states where it was on the ballot.

There will be a new Congress, but it appears that support to rein in the drug war still exists. Enough Democrats are currently in Congress to slow or stop overreach by a new Administration that is against cannabis reform. Anyone who is interested in furthering the gains already made would seemingly have an interest in lobbying their local and state governments to stand up for this issue. Because the realities of national politics are facing us all, we need massive efforts to lobby the federal government to maintain the gains of cannabis, and drug law reform in general. There seems to be true populous support for this and we should use that to our best advantage.

I was hoping this election would give clarity to cannabis around the nation and instead we got other problems. President Obama cannot help us in the little time he has left. It is up to us to become truly political, to organize and to wield our considerable power to further our past efforts. Otherwise, things could be dark indeed.