opinion

4 reasons why recreational marijuana has a shot in Arizona

Arizona voters may have another shot at legalizing marijuana for recreational purposes if Rep. Mark Cardenas and Rep. Todd Clodfelter have their way.

They're proposing House Concurrent Resolution 2037, which would refer a ballot measure to voters that would allow adults 21 and older to possess up to an ounce of marijuana for personal use and grow up to six plants.

And this time, the bipartisan effort may work, though there are significant hurdles as well.

Reefer madness has spread across the United States. Beginning in 1996, when California became the first to legalize medical marijuana, state after state has joined California’s trail-blazing path.

To date, 30 states – including Arizona – and the District of Columbia have legalized medical marijuana, and 10 of those jurisdictions have fully legalized marijuana.

Legalization has failed, time and again

But Arizona’s history with marijuana legalization is far from mellow.

In 1996, red-blooded Arizona was poised to join California in the record books when voters passed Proposition 200 to legalize medical marijuana. The Arizona Legislature snuffed out that budding joint venture, repealing the legalization effort a few months later. But like a garden weed that does not die so easily, marijuana had taken root in Arizona and was poised to grow.

The voters, not liking what the Legislature had done in gutting their marijuana initiative, passed the Voter Protection Act in 1998, which, among other things, prohibits the Legislature from repealing voter-passed laws. Then in 2010, Arizona voters narrowly passed Prop. 203, which legalized medical marijuana. This time, the Legislature could not repeal the law.

In 2012, Colorado and Washington set the marijuana scene ablaze by legalizing recreational marijuana. Soon after, Arizona lawmakers considered following suit. In 2014, former state Rep. Ruben Gallego, a Phoenix Democrat, introduced a bill to fully legalize marijuana. The bill failed, as has every similar legislation introduced since then.

In 2016, Arizona voters narrowly failed to pass a legalization initiative. Many think that Prop. 205 went up in smoke because it gave priority in licensing to existing marijuana businesses, leaving only a precious few licenses open to free-market competition.

4 reasons why it might work this time

Will this legalization effort succeed when so many have failed in Arizona? A few things make this bill a more likely candidate for success:

First, this time the marijuana proposal has a Republican co-sponsor. This could make it easier for Republican legislators to support.

Second, the bill would refer the matter to the voters, who could affirm it (or not). Legalization, then, would ultimately be up to the people, rather than the Legislature — perhaps making this bill more palatable to lawmakers.

Third, the fact that this is a bipartisan proposal may not only help muster enough legislative support but could also result in a well and fairly drafted ballot measure. The Cardenas-Clodfelter bill was likely drafted by legislative staff and lawyers, whose business it is to write laws that fit seamlessly into the statutory scheme in Arizona. The Legislature might want to take this opportunity to get its imprint on marijuana legalization.

Fourth, it's popularly believed that Prop. 205 failed largely because of the licensing issue. The initiative could be redrafted and represented to the people with no input from the state Legislature. And once passed, because of the Voter Protection Act, the Legislature could do very little to implement, fix or change this law. That means the Legislature has the chance to act now or forever hold its peace.

Uncle Sam may still be in the way

Not all is smooth sailing for legalization in Arizona, however. The federal government may be poised to dull the buzz.

The federal Controlled Substances Act lists marijuana as a Schedule I drug, making it unlawful to grow, transport or possess. First-time possession is a misdemeanor criminal offense, carrying a possible sentence of one year of incarceration, a $1,000 fine or both.

This federal law is supreme, and the federal government may choose to enforce it. Historically, this has not been the case for two reasons. First, states prosecute most drug crimes, and states that have legalized marijuana do not prosecute marijuana possession crimes.

Second, the Obama Administration followed a hands-off approach to federal enforcement, as explained in a 2013 memorandum issued by Deputy Attorney General James Cole.

But on Jan. 4, Attorney General Jeff Sessions rescinded the Obama-era policies and issued a memorandum instructing federal prosecutors to weigh “all relevant considerations” in determining whether to file charges, including marijuana charges.

State marijuana policy had been flourishing because the federal government had allowed it to, but now that federal prosecutors may assert their authority in this area, perhaps the Arizona Legislature will choose to proceed cautiously to avoid any conflict with the federal government. To be blunt: This may not be the time Arizona legislators choose to join the legalization camp.

Of course, only time will tell what happens with marijuana legalization, in Arizona and across the country. But, for now, the current legalization effort in Arizona faces two hurdles: a Republican-controlled Legislature that has historically disfavored legalization efforts, and a federal government looking to reassert its authority.

Jessica Berch is a lecturer at the Sandra Day O'Connor College of Law at Arizona State University where she teaches civil litigation and constitutional law courses. Contact her at jessica.berch@asu.edu, 480-965-4859, @jessicaberch.

READ MORE: