Advocates for the decriminalization of marijuana could be on a real high in November if Nevada voters take the first step toward legalizing the drug in the state, but even supporters of the measure don't expect it to go through without a fight from Washington.
The initiative, which would have to be passed again by the state's voters in 2004, would not only legalize possession and private use of up to three ounces of marijuana for persons 21 and older, it would authorize the state to regulate the growth, distribution and sale of the drug, much the way it regulates tobacco and alcohol.
The initiative, an amendment to the state constitution, could result in pot being sold in smoke shops, pharmacies or coffee shops, and the state would be authorized to put a tax on marijuana sales, as it does on alcohol and tobacco. Public consumption would still be a ticketable offense, just as the public consumption of alcohol is.
It would still be a criminal offense to sell marijuana without a license, or for anyone to sell pot to anyone under 21 years of age.
Though Ohio has already decriminalized possession of up to 100 grams — a little more than three ounces of marijuana — the Nevada initiative represents a major step forward for advocates of change in the nation's drug laws, such as the National Organization for the Reform of Marijuana Laws, because of the move to create state regulation.
Even laws legalizing medicinal marijuana passed by a dozen states have stopped short of creating state-regulated distribution systems, which has left people for whom pot has been prescribed and groups that have tried to provide them with marijuana open to confrontation with federal authorities that oppose the programs.
Confrontation With the Feds?
That is also the aspect of the measure that is likely to put the state at odds with the U.S. Justice Department, if it passes, just as the legalization of marijuana for chemotherapy patients and people suffering from glaucoma, and the authorization of doctors to prescribe it in several states has run afoul of federal authorities.
"If they were hostile to sick and dying patients getting it, it's not hard to guess what their position would be regarding healthy people 21 years old and up getting and using it for for non-medical purposes," NORML Executive Director Allen St. Pierre said.
Ethan Nadelmann, executive director of the Drug Policy Alliance, which supports decriminalizing marijuana, said the federal government has been sending mixed messages about whether it would take action against the state if Nevada voters approve the measure. He compared the current situation with marijuana to the early 1930s, when states made alcohol legal before Washington repealed prohibition.
"I think the biggest question is whether the federal government is going to prioritize challenging a law that state law enforcement is supporting," DPA Deputy Director of Legal Affairs Judy Appel said. "If this passes, it means the people of Nevada have supported it twice. The question has to be about priorities."
A spokesman for the DEA said there would be no waffling on the agency's part, and that if the measure passes federal agents would go after businesses in Nevada that sell marijuana regardless of whether they are in compliance with state laws, just as they have gone after groups that distribute medicinal marijuana to patients with prescriptions in California.
"This is the wrong message to send, the wrong program for Nevada," DEA spokesman Will Glaspy said. "We will respond to this in a way similar to the approach used for the cannabis buyers clubs. This is still against federal law."
The Justice Department's efforts to block implementation of medicinal marijuana programs and the assisted suicide law that was passed twice by Oregon voters have landed in the courts, and that is where any federal challenge of the Nevada constitutional amendment — if it passes — is likely to wind up.
"If they do challenge it, it's a wide open area of the law," Appel said. "There are certain protections built into the language of the law, but it will depend on what the courts decide. It is an area that has traditionally been left to the courts to decide."
A recent poll found that 48 percent of Nevada's voters supported the measure, with another 48 percent opposed and 4 percent undecided.
That poll was before a flip-flop by the state's largest law enforcement organization, the Nevada Conference of Police and Sheriffs, which first announced it had endorsed the measure, then issued a statement saying that it had not backed the proposal.
"As law enforcement officers, we are duly sworn to uphold the law, even by arresting people for small amounts of marijuana, knowing that most of these cases won't be prosecuted. Many of these people are law-abiding citizens except for the possession charges," then-NCOPS President Andy Anderson, who was on the Las Vegas police force for 28 years, said in the group's statement announcing that the board had voted 9-0 to support the initiative, known as Question 9.
He said that marijuana arrests take officers off the streets, often for as much as half their shifts, as they fill out paperwork, and "we could better spend our time responding to more life-threatening and serious incidents."
"Law enforcement officers support Question 9, the marijuana initiative, because it will put drug dealers in prison, ban smoking marijuana in public places and strictly prohibit children from using marijuana," Anderson said. "Passage of Question 9 will ensure that more cops are on the streets to protect our citizens from violent crime and the threat of terrorism."
Three days later, though, the group announced that Anderson was no longer president and said that NCOPS did not support the measure.
The group released a statement blaming Anderson for the "misunderstanding" and stating that the board does not endorse the proposal, "nor will it support any measure for the decriminalization or legalization of marijuana."
Rise in Decriminalization
Just last year, Nevada legislators passed a law that made possession of less than one ounce a misdemeanor, rather than a felony, joining 11 other states that have softened their laws regarding marijuana.
Nine states have legalized medicinal marijuana and 12 states have passed laws that decriminalize the possession and consumption of small amounts of pot, in most cases turning what was previously an arrestable offense into a ticketable misdemeanor.
California and Arizona approved medicinal marijuana in 1996; Alaska, Washington and Oregon followed suit in 1998; Maine in 1999; Colorado and Nevada in 2000; and Hawaii in 2001.
The 12 states that have passed measures decriminalizing possession of small amounts of marijuana are California, Alaska, Minnesota, New York, North Carolina, Ohio, Maine, Nevada, Nebraska, Colorado, Oregon and Mississippi. Vermont and New Hampshire both had bills before the legislature during their last sessions.
Even with the easing of marijuana laws, a record 734,498 people were arrested on marijuana charges in 2000. According to the Marijuana Policy Project, 88 percent of all marijuana arrests are for possession, not sales or production.
In Arizona, a measure to decriminialize possession of up to two ounces of marijuana will be on the ballot this November. Included in the measure, Proposition 203, is a proposal to have the state redistribute confiscated marijuana to people whose doctors recommended that they use medicinal marijuana.
The proposition would take the burden of prescribing medicinal marijuana off Arizona doctors, many of whom say they are reluctant to write pot prescriptions because of the threat of federal prosecution.
Opening the Door for Kids?
The only other state that has considered a measure similar to Nevada's is Oregon, where voters were presented the Oregon Marijuana Initiative in 1988. The measure would have created a state marijuana regulating board modeled on the state's alcohol board, but it was voted down.
Opponents of decriminalization say that if the proposition is approved, it will only increase marijuana use among teenagers, despite the provision limiting sale to people over 21 and claims by supporters who cite studies of high school students saying it is easier now to get pot than it is to get alcohol or tobacco.
"Would it reduce the social stigma connected with marijuana use [if it were decriminalized and state-regulated]? Yes. That means the use of the drug is likely to go up," said Howard Simon, a spokesman with the Partnership for a Drug-Free America.
He pointed to the high numbers of teenagers who use alcohol and cigarettes, despite the prohibitions on sales of those products to minors and the statements of youngsters that it is easier for them to buy pot.
"Do we want a situation where we're more likely to have kids trying marijuana?" he said. "That's the bottom line."