Senseless in Seattle: Washington state's decision to legalise marijuana possession is at odds with federal law

A cannabis smoker marks the start of the new law by the Space Needle in Seattle (Getty Images)

It’s a scene that opponents of the new law surely dreaded: a cluster of committed pot-smokers milling around the base of Seattle’s Space Needle tower, lighting up and listening to loud reggae music. At midnight, Washington became the first state in the US to legalise marijuana possession, and a crowd of about 100 was there to celebrate. Despite a stern warning issued hours earlier by the Seattle City Attorney, there were no police officers to break up the party, or to issue the expected $100 fines to those violating the letter of the new law, which supposedly still forbids people to smoke marijuana outside their own homes.

Initiative 502 was passed by Washington voters on election night last month, removing criminal sanctions for anyone aged 21 and over who is carrying up to 1oz of cannabis for personal recreational use; or up to 16oz of “solid cannabis-infused goods”, such as brownies; or up to 72oz of the stuff “in liquid form”. A similar law was passed in Colorado, where it is expected to come into effect in January. Surveys suggest, moreover, that at least three million people across the US have taken up regular pot-smoking in the past five years.

Seattle police are so far taking a relaxed approach to their new responsibilities: in the run-up to legalisation, the SPD departmental website carried an image of “The Dude”, stoner hero played by Jeff Bridges in the Coen Brothers’ movie The Big Lebowski, with the message: “The dude abides, and says, ‘Take it inside!’”; and a YouTube clip from Lord of the Rings, in which Gandalf the Wizard and Bilbo Baggins puff on pipes of “the finest weed in the South Farthing”. In a blog, a police spokesman wrote: “The police department believes that, under state law, you may responsibly get baked, order some pizzas and enjoy a Lord of the Rings marathon in the privacy of your own home, if you want to.”

Colorado’s comparable ballot measure will legalise growing up to six plants for personal use, but selling, growing or sharing weed remains a crime in Washington. “I’m not sure where you’re supposed to get it,” local prosecutor Dan Satterberg told CNN. “If you stumble across some on the street or it falls from the sky, then you can have it. Otherwise, you are part of a criminal chain of distribution.”

Under the new law, state authorities have until December 2013 to establish a legal cannabis trade in Washington, with taxed and licensed stores along the lines of alcohol sales. It is estimated that the system will raise about £2bn in tax revenue over the next five years. Among those hoping to capitalise on the legal market in marijuana is former Microsoft executive Jamen Shively, who has plans for a “premium” marijuana retail business named after his great-grandfather Diego Pellicer, a Spaniard who supplied hemp rope to the Spanish fleet during the Spanish-American war at the end of the 19th century. At the time, that made Pellicer the world’s largest marijuana producer.

“We want to position it similar to a fine cognac, a fine cigar – something to be savoured and enjoyed in small quantities by responsible adults,” Mr Shively told a Seattle news station, “What Kentucky became for Bourbon, the state of Washington is becoming for marijuana.”

There is, however, the small matter of federal law, which still forbids possession of the drug, and considers it in the same category as cocaine and heroin – regardless of the laws of individual states. Pro-legalisation campaigners liken the process to Prohibition, which was rolled back state by state until the repeal of the 21st Amendment in 1933. Marijuana was first banned by Congress with the Marijuana Tax Act, four years later.

However, opponents of legalisation – around one in three Americans, the polls suggest – fear its effects: an increase in addiction among young people, an increase in car-crash risk, an increase in mental illness. Business groups in Colorado have demanded the continued enforcement of federal drug laws, because of uncertainty about their obligations to potentially stoned employees. A legally sanctioned cannabis market would also bring with it the trappings of the alcohol and tobacco industries. According to the four public policy professors who penned the recent Oxford University Press publication, Marijuana Legalization: What Everyone Needs to Know, “If we create a licit market, we should expect the industry’s product design, pricing and marketing to be devoted to creating as much addiction as possible.”

Eighteen states have already legalised marijuana for medical use, beginning with California, which established its medical marijuana programme as long ago as 1996, permitting those with chronic illnesses to grow and buy the drug for pain-relief on the recommendation of their doctor.

Q&A: A guide to lighting up

Where can I do it?

Voters in two states – Washington and Colorado – for the first time approved ballot initiatives to decriminalise recreational smoking of marijuana. The nub of the Washington measure, which lifts the prohibition on anyone 21 or older possessing marijuana, went into effect yesterday. Colorado should begin to enact its own liberalising laws in the new year. Everywhere else, having weed in your wallet remains a bad idea.

So, in Washington, I can smoke a joint wherever I like?

No. Clearly being allowed to possess marijuana does not mean you can light up a joint in restaurants and bars where cigarettes are already banned. In theory, any public cannabis smoking will remain illegal. But police officers in Seattle have been told essentially to look away. It is still banned in federal buildings, military bases and national parks.

If possession is legal in those states, where will you be able to buy it? 7-Eleven?

There are no pot vending machines on the streets of Seattle, yet. In fact, it may be another year before the state comes up with a new licensing system determining who can cultivate, distribute and sell marijuana. So until that time, while it is legal to possess pot in the state it is not legal to buy it. Or sell it.

Well that’s weird. But once that bit’s sorted, there will be no other legal complications, right?

Wrong. There is the matter of federal law. The feds regard marijuana as a Schedule 1 drug, the same category as LSD and heroin. The Justice Department has yet to say what its long-term approach will be to states that decriminalise marijuana, but for now, it maintains that cannabis possession is still illegal everywhere, setting up potential court battles between the federal government and the states. “The department’s responsibility to enforce the Controlled Substances Act remains unchanged,” the US Attorney’s office for the Western District of Washington said in a statement. “Neither states nor the executive branch can nullify a statute passed by Congress.”

Confused?

You should be. But the bottom line is: in Washington and soon in Colorado you will be able to have pot in your pocket without fear of being put in the slammer.

David Usborne