Pot's Shot Marijuana Decriminalization Struggles in the Legislature

Twelve Democrats are cosponsoring a bill in the state house that would reduce the penalty for possessing up to 40 grams of marijuana to a civil infraction, subject to a $100 fine. It would only decriminalize marijuana possession, not legalize it. Introduced on January 14, this is the first legislative attempt to reform Washington's marijuana laws in decades. Under current state law, possessing even one joint is a misdemeanor punishable by up to 90 days in jail.

But does it stand a chance?

This seems an unlikely year for the legislature to embrace any civil-liberty-lovin' proposals, considering the top item on their agenda: bridging the state's $6 billion budget gap. However, the financial crisis may, paradoxically, prove a windfall. According to data from a report by the Washington State Institute for Public Policy (Evidence-Based Public Policy Options to Reduce Future Prison Construction, Criminal Justice Costs, and Crime Rates), the state spends over $1,000 per misdemeanor arrest and conviction. Using this estimate and applying it to the 11,553 pot-possession arrests (and 3,600 convictions) in Washington in 2007, the ACLU of Washington calculates that the state annually spends over $7.5 million on marijuana enforcement.

"I think any chances of passing will hinge on the opportunity to achieve budget savings and whether this proposal is less unpopular than other proposals for cost savings," says the bill's prime sponsor, Representative Dave Upthegrove (D-33). "Is it more controversial than closing parks?"

Upthegrove also hopes that, as a suburban representative, he gives the bill "a little political cover."

But the bill has already hit a roadblock. Representative Christopher Hurst (D-31), a former narcotics officer and ex-cop who chairs the Public Safety and Emergency Preparedness Committee, refuses to give the bill a hearing. "I am concerned that [the bill] is in direct conflict with federal law," which makes possessing any quantity of marijuana a crime, he says. "If we tell citizens of Washington that marijuana is no longer a crime, and they cross the border and get arrested... or if they go out on their boat [and are arrested by the Coast Guard], they are not going to be happy with us."

However, it's unclear whether the federal government would bother prosecuting people for such a minor crime. Even federal law-enforcement officers can treat possession of up to an ounce of marijuana as an infraction, rather than arresting and jailing an offender. And Representative Roger Goodman (D-45), an attorney and former head of the King County Bar Association's Drug Policy Project, says, "Federal law clearly allows the states to prescribe their own penalties, whether civil or criminal."

"Thirteen other states have already [decriminalized marijuana]"—including Massachusetts, where a measure similar to the one in the Washington State legislature passed a public vote in November by a 30-point margin—"and we haven't seen any of those other states struggle with [the] problem" of federal prosecution, says Alison Holcomb, director of the ACLU of Washington's Drug Policy Project. California has made possession of marijuana a civil infraction, and, like Washington, it also sits on an international border and has a coastline patrolled by federal agents.

Hurst says that if a companion bill passes in the state senate and comes to his committee, he will give it a hearing.

State senator Jeanne Kohl-Welles (D-36) says she'll introduce companion legislation within a week. But the bill faces an uphill battle in the senate, where it will have to get out of the judiciary committee. Three of the committee's eight members are Republicans and another member is conservative Democrat James Hargrove (D-24).

Meanwhile, no Republicans have cosponsored the current bill, making it a lefty long shot that could take years to pass, cosponsor Representative Brendan Williams (D-22, Olympia) acknowledges. Cal Anderson, Washington's first gay legislator, "used to be a voice in the wilderness on gay civil-rights issues," he says. "You just keep plugging away and people start thinking in terms of the change."

This story has been updated since it was originally published.