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Amendment 64's Brian Vicente on how act might be challenged, why he doubts it will be

The passage of Amendment 64, the Regulate Marijuana Like Alcohol Act, was a big win for attorney Brian Vicente, one of the measure's main proponents.

But amid questions about when and how the proposal will take effect come suggestions that court challenges are inevitable. Vicente disagrees and explains why below.

Vicente characterizes the amendment's approval, by a roughly 53-47 percent margin, as "a very meaningful victory for the people of Colorado. They've taken a positive step forward in establishing a smart marijuana policy in the state. They really recognize that marijuana prohibition has failed. I think people of the state are leaders" for that reason.

The 2012 U.S. Supreme Court justices.
The 2012 U.S. Supreme Court justices.

Nonetheless, media outlets such as National Public Radio have hinted that a challenge to the U.S. Supreme Court is likely, since marijuana remains illegal at the federal level. Vicente doesn't dismiss this prospect, but neither does he regard it as an example of metaphysical certitude.

"There really is no challenge that could occur to the state criminal-law changes that were made" on election night, he allows. "Basically, a state has a right to set their marijuana penalties at any rate they choose, and Colorado has chosen to allow adults 21 and over to possess and grow small amounts privately. So the federal government can't touch that."

Other provisions aren't totally bulletproof, though, as he concedes.

"It is possible the feds could use their scarce resources to try to overturn the will of the voters in terms of Colorado's desire to have state-regulated stores, where marijuana is taxed and strictly controlled like alcohol," he notes. "And if that day comes, we'll be ready to fight to validate the will of the voters -- and we hope our state officials will join us in that battle."

One of the most unlikely pot champions in Colorado government -- Attorney General John Suthers, arguably the most vocal critic of marijuana-policy liberalization among major state officials -- has already confirmed he will do so, despite his personal views. And that makes sense to Vicente. "It's my belief that he would be required to work on behalf of Colorado voters, and on behalf of making this law meaningful, by defending it against federal challenges," he says.

Should the feds decide to take on the retail operations, "they could push for some kind of injunction to prevent any rule-making and regulation-writing from taking place," Vicente concedes. "But while it's possible, I don't think it's likely. I would point to the fact that there are now eighteen states with medical marijuana" -- Massachusetts voters added their home to the list this week. "And there are places like Colorado with hundreds of storefronts currently selling medical marijuana, and the federal government hasn't acted to shut down those stores via a court challenge."

Continue for more of our interview with Brian Vicente about Amendment 64.

 

True enough. The feds, as represented by U.S. Attorney John Walsh, have sent closure letters to dozens of dispensaries within 1,000 feet of schools, but allowed the vast majority of centers otherwise following state law to operate. For that reason, Vicente says, "I don't believe they have a strong case."

Another factor: On Tuesday, Washington state approved a similar measure, Initiative 502. As such, the feds would be put in the position of launching a new escalation of the drug war on two enormous fronts simultaneously -- a difficult approach, in Vicente's opinion.

"I think both Colorado and Washington passing these historic measures sends a strong message to the federal government that this is a mandate," he says. "This isn't just one outlier of a state. This is a nationwide movement, and they need to respect that."

And then there's the prospect of President Barack Obama, whose election to a second term means he won't be facing another election, taking actions many of his supporters expected after he assumed office in 2008. Those might include removing marijuana from the Schedule 1 drugs list -- a roster of substances regarded as the most dangerous and wholly lacking in medical benefits.

"We are cautiously optimistic about a second Obama term," Vicente reveals. "We hope that he will live up to some of the promises he made on the campaign trail in '08, when he said he'd allow states to lead on the issue of marijuana reform. And it's absolutely within his power to push through the rescheduling of marijuana on the federal level. I hope he decides to really lead and take this issue on."

Barack Obama.
Barack Obama.

Even with potentially less political pressure, how probable is that to happen? Vicente doesn't offer odds, but he feels an alternative approach would be strategically advantageous. As he puts it, "I think the federal government could take a play from the Colorado playbook and decide to move forward with a more sensible and cost-effective marijuana policy. And in so doing, it would prevent the possibility of costly legislation." Continue for more of our interview with Brian Vicente about Amendment 64.

 

Amendment 64 proponents Mason Tvert and Brian Vicente (from left).
Amendment 64 proponents Mason Tvert and Brian Vicente (from left).

If Obama were to back off strict enforcement of current federal weed laws, Vicente can see marijuana prohibition crumbling on a national level, much as was the case with alcohol during the first third of the last century.

"There absolutely are historical precedents," he says. "In the 1930s, Colorado overturned alcohol prohibition one year before the federal government did -- and this year, Colorado has overturned marijuana prohibition. Hopefully, the federal government and other states will get on board soon. But in the meantime, Colorado has chosen to lead in this area, and we think that's a great thing for the state."

What happens next when it comes to Amendment 64? "Within thirty days, the governor must sign it into law -- and he's promised to do so," Vicente says. "At that point, adults will be immune from criminal prosecution for small personal possession and cultivation. Then, there's a fourteen-month timeline for implementation to get new storefronts off the ground. The legislature and the Department of Revenue are tasked with taking up certain rule-making issues in 2013 to write strict regulations around these new facilities, and to license them as early as October 2013, and as late as January 2014."

Likewise, "the legislature is tasked with writing regulations and issuing licenses for hemp during the 2013 legislative session."

For now, anyone who assumes the amendment went into effect the moment Tuesday's vote became final is advised to take a breath.

"I would stress to readers that until the governor signs Amendment 64 into law, criminal laws remain on the books in Colorado," Vicente points out. "Upon his signature, adults will be able to possess small amounts of marijuana privately. But until that time, it remains a criminal offense. So please use discretion. It's really incumbent on the people of this state to make this a meaningful victory."

And if they do so? "Then," says Vicente, "we can serve as a model for other states around the country."

More from our Marijuana archive: "Amendment 64 approved: Mason Tvert celebrates, John Hickenlooper talks Cheetos."


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