DON’T RUSH THE GREEN RUSH

There has been a lot of attention recently surrounding the legalization of marijuana especially since Colorado’s law went into effect last month. Can Rhode Island pass a law legalizing pot for recreational use? Should the legislature, the Governor and the Attorney General support a law legalizing pot? Or should the question of legalization be done by voter initiative? I’m not really sure if I care as long as we do it. Just not yet!

The Federal government regulates drugs through the controlled substances act which does not distinguish between medical and recreational use of marijuana. The laws are generally aimed at individuals who possess, grow, or distribute large quantities of marijuana because under federal law, marijuana is treated like every other controlled substance, such as cocaine and heroin. The explicit implication is marijuana has no medicinal effect and is highly addictive. Both implications are false and as a result, more and more state are passing laws contrary to the Federal government’s erroneous assumptions.

The Justice Department surprised many with its aggressive stance regarding legalization of marijuana during Obama’s first term. However, in August of last year, the Department of Justice issued an update to its federal marijuana enforcement policy. And, it is a game changer.

In its statement, the Justice Department makes clear that marijuana remains an illegal drug under the controlled substances act. But, the department identified eight (8) areas of enforcement that federal prosecutors should prioritize. These are the same enforcement priorities that have historically driven the department’s enforcement efforts.

Traditionally, states are relied upon to address marijuana activity through local enforcement of their own narcotics laws. For states that choose to enact laws authorizing the production, distribution and possession of marijuana, the Justice Department expects the states to establish strict regulatory schemes that protect the federal interest identified in the department’s guidance memo. These schemes must be tough in practice and not just on paper. The scheme must include strong state-based enforcement efforts backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the department has informed the Governor’s of the states of Colorado and Washington that the Justice Department is deferring its right to challenge the state’s marijuana legalization laws at this time. This is a game-changer. But if any of the stated harms do materialize, the federal prosecutors will reserve the right to bring individual prosecutions focused on federal enforcement priorities. The department also reserves the right to challenge the regulatory schemes themselves in the states.

The eight (8) areas outlined by the Justice Department serve as a guide and/or a framework for the states when considering implementing an authorizing the use of medicinal marijuana, decriminalization of the use and possession of marijuana and/or the outright legalization of recreational use of marijuana.

1. Preventing the distribution of marijuana to minors,

2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;

3. Preventing the diversion of marijuana from states where it is legal under state law, and some form other states;

4. Preventing state/authorize marijuana activity from being used as a cover or pretext for the trafficking other illegal drugs or other illegal activity;

5. Preventing violence and the use of firearms and the cultivation and distribution of marijuana;

6. Preventing drugged driving and exacerbation of other adverse public health consequences associated with married marijuana use;

7. Preventing growing of marijuana on public lands and the attendant public safety, environmental dangers posed by marijuana production on public lands; and

8. Preventing marijuana possession or use on federal property.

If these principles are adhered too, states may adopt and/or pass laws legalizing the possession, use and distribution of marijuana. States must adopt strict regulatory schemes, which are not inconsistent with federal law.

Just because the Justice Department has stated that it will not prosecute under the conditions set forth in its August memo, does not mean that states should rush the green rush. The fact is that the state of Colorado has been preparing for its legalization, and yet prices have skyrocketed and shortages are creating a problem for those patients who require medicinal marijuana. The laws of supply and demand cannot be ignored.

In Rhode Island, the demand is already greater than the supply, which is why the compassion center prices are exceptionally high and not very compassionate. Moreover, their supplies are limited and always strained. If marijuana were to be legalized in the state of Rhode Island, the demand would increase exponentially and prices would skyrocket. Within 30 days or less, the supply would run dry. So before we act to enact, let’s prepare for the inevitable wave washing across this country and heading east like a tsunami.

First, we should draft legislation, which tailors legalization based upon the specifics of our small and unique state. That legislation should incorporate the current medicinal marijuana law so that no conflicts or inconsistencies result in constitutional challenges by those who would have standing based upon unfair or on equal treatment. Regardless of how prepared we may think we are when it comes to legalizing recreational use of marijuana, the reality is, under the current model, there will never be enough supply, which in turn creates greater demand and higher prices. Shortages also become a real problem in patients that rely on their supply of medicinal marijuana may be the litigants challenging the very law they initially supported.

Because in any scenario, the state government is responsible for the health, welfare and safety of its citizens, it gets drawn into unwanted and unnecessary litigation. Therefore, the leadership in the General Assembly in conjunction with the Governor and the Attorney general, regardless of party affiliation should consider taking advantage of the Justice Department’s memorandum outlining the 8 guiding principles. In addition, this state should adopt the Oakland, California model for commercial farming in order to address shortages, which are inevitable, and already exist. (Link to Oakland Model)

I’m not an economist but I understand the laws of supply and demand. The reality is you can’t rush a plant and the law, as currently written, does not provide for large scale or commercial farming. Therefore, there will be shortages of marijuana due to the increasing demands. Since Colorado’s law went into effect, shortages are causing prices to increase. Demand continues to rise. And eventually, supply dries up and then what? Let’s make sure we do things right this time. We simply need to engage our leaders to embrace the idea of commercial and organic farming and work with our existing farms to produce the supplies needed to support the expanding demand.

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