What Legal Pot in Washington Will Look Like

Washington’s
marijuana legalization initiative
, which takes effect on
December 6, is broadly similar to
Colorado’s
: Both initiatives eliminate penalties for possession
of up to an ounce by adults 21 or older, and both call for
state-licensed pot shops, in Washington’s case to be regulated by
the state liquor control board, which is supposed to adopt
regulations by December 2013 and start issuing licenses in 2014.
But Washington’s Intitiative 502 is considerably more restrictive
and prescriptive than Colorado’s Amendment 64. Here are some of the
significant differences:

Home cultivation. Unlike Amendment 64,
I-502, does not allow people to grow their own pot. Alison Holcomb,
director of the Yes on I-502 campaign, says pre-drafting research
indicated that voters were not receptive to home cultivation. Since
“marijuana isn’t quite yet out of the black market, and won’t come
out of the black market, even under I-502, until other states make
it a legal product and the federal prohibition goes away,” she
says, “there is still concern among parents, families living in
neighborhoods, saying ‘I’m not quite ready for my next-door
neighbor to start growing marijuana in their basement.'”

DUI standards. I-502 establishes a per se
standard for driving under the influence of marijuana: five
nanograms of THC per milliliter of blood. Amendment 64 does not
address the issue, except to say that “driving under the influence
of marijuana will remain illegal.” Under current Washington law
(which is similar to Colorado’s), Holcomb says, an arrest requires
evidence of impairment, and a conviction requires evidence of
consumption, but neither is tied to a particular THC level. The
more specific standard can help or hurt defendants, depending on
the situation. Pro-legalization critics of I-502 worry that regular
consumers, such as patients who use marijuana for symptom relief
every day, may hit the five-nanogram limit even when their driving
ability is not impaired. Holcomb emphasizes that blood cannot be
drawn for a test without reasonable suspicion that a driver is
impaired, and she argues that jurors “might be skeptical that the
person was actually impaired [if] the results were not at that
threshold level.” But she concedes that any per se rule,
whether for marijuana or alcohol, carries a risk of punishing
people who do not in fact pose a public safety threat. 

Retail restrictions. While Amendment 64
leaves the details of regulating pot shops to the Colorado
Department of Revenue, I-502 includes specific rules aimed at
making the stores as unobtrusive and uncontroversial as possible:
no consumption on the premises, no products visible from the
street, no identification beyond a single plain sign of specified
size, and no outdoor ads on publicly owned property (including mass
transit systems) or “within one thousand feet of the perimeter of a
school grounds, playground, recreation center or facility,
child care center, public park, or library, or any game arcade
admission to which is not restricted to persons aged
twenty-one years or older.” That same location restriction applies
to the stores themselves. The idea, says Holcomb, is to make the
privately operated pot shops resemble old-style state-run liquor
stores—”very bland, very boring,” and inconspicuous, so “you have
to specifically seek it out to go there and buy marijuana….We
don’t want to treat people like criminals for making the choice to
use marijuana, and at the same time we don’t want to promote
marijuana use.”

Taxes. Amendment 64 tells the state legislature
to impose an excise tax “at a rate not to exceed fifteen percent”
on sales of marijuana to retailers. That cap expires on January 1,
2017. But since a 1992 amendment to Colorado’s constitution
requires that all tax increases be approved by voters,
it is not clear
whether this levy actually will be imposed.
Colorado Attorney General John Suthers
says
Amendment 64 did not comply with the constitution’s
requirements for new taxes, so a second vote will be necessary
before the state can collect any revenue from marijuana sales.
Washington has no such requirement, and the tax imposed by I-502 is
much heavier: 25 percent at each of three levels (grower to
processor, processor to retailer, and retailer to customer). As a
result, prices paid by consumers, taking into account wholesaler
and retailer markups (which add to the taxable price), will be more
than double what they would be without taxes. Then again,
production costs and markups should be much lower in a legal
market, even with the threat of federal prosecution. A 2010 RAND
Corporation analysis
of marijuana legalization in California suggested pretax retail
prices might be one-tenth the black-market price, in which case
even an effective tax in the range of 100 percent to 200 percent
may not seem very onerous, although it will create a strong
incentive for evasion.

There is at least one way in which Washington’s initiative is
more permissive than Colorado’s: Unlike Amendment 64, it does not
let local governments ban marijuana stores within their
jurisdictions. In fact, it charges the Washington Liquor Control
Board with ensuring “adequate access to licensed sources
of useable marijuana and marijuana-infused products to
discourage purchases from the illegal market.” Holcomb says
allowing local bans would undermine that goal. Furthermore,
Washington is taking a bigger leap than Colorado, which already has
state-regulated medical marijuana dispensaries, many of which

may decide
to get into the recreational market. Washington’s
medical marijuana law, by contrast, does not explicitly authorize
dispensaries, although as in California they operate in more
tolerant jurisdictions (such as Seattle) as patient-caregiver
collectives. Another significant difference that could eventually
make Washington’s new law either stricter or more liberal than it
is now: Unlike Amendment 64, which can be changed only by another
constitutional amendment, I-502 can be amended by the state
legislature. For the first two years after passage, amending an
initiative requires a two-thirds majority, but after that a simple
majority suffices.