Brian Vicente in 2012, the year Amendment 64 passed.
Brian Vicente in 2012, the year Amendment 64 passed.
File photo

Amendment 64 Co-Author Brian Vicente on Colorado Legal Pot's Fifth Birthday

Monday, November 6, marks exactly five years since Colorado voters approved Amendment 64, which legalized limited recreational marijuana sales in the state. To mark the occasion, Brian Vicente, an attorney who co-authored the measure, will join other key figures in the campaign at a reception, dinner and fireside chat about the march to victory and the way the industry has developed during the last half-decade. In advance of the celebration, whose details are featured below, Vicente offers reflections on the past and a look ahead to the future of legal marijuana in Colorado and beyond.

Among those joining Vicente at the gathering will be Steve Fox, the co-founder and strategic adviser of the National Cannabis Industry Association, as well as the former director of government relations for the Marijuana Policy Project and the current director of VS Strategies. The latter is an affiliate of Vicente's law firm, Vicente Sederberg, LLC, whose growth exemplifies the impact of Amendment 64 nationwide; it now has offices in Boston, Los Angeles, Las Vegas and Washington, D.C., in addition to Denver.

According to Vicente, "The primary authors of Amendment 64 were Steve Fox and myself. But we really had a big-tent approach to drafting. I had been involved full-time in marijuana policy in Colorado since 2005, along with Steve and Mason" — that's longtime cannabis advocate and Yes on 64 co-director Mason Tvert, another speaker at the dinner. "We had worked to change marijuana laws in Denver and Breckenridge and pushed statewide measures, as well as doing impact legal cases and media stunts. We'd essentially demonstrated a fair amount of success over that tenure, and we started eyeballing 2012 as a presidential year, where we'd have a robust turnout from people of color and younger voters — people who historically support marijuana reform."

During this preliminary period, Vicente goes on, "we reached out to some of the bigger national funders of cannabis causes, including the Marijuana Policy Project. We told them that we'd been successful for years and we thought the climate was right for robust state change and thought Colorado could be the first place in history to legalize marijuana, in November 2012."

These conversations took place well in advance of the election. Indeed, Vicente reveals that "the drafting probably began a year out from that date — and it was a long process. I sort of led the drafting in the sense that I was the chief organizer. I wasn't Benjamin Franklin, necessarily, but I was responsible for bringing together as many people as possible. It was a very diverse group of stakeholders, including medical marijuana patients and business owners, all the way to the ACLU."

Vicente concedes that this mission "was a daunting challenge, in that the world had never known what was essentially fully legalized marijuana. So we had to figure out how to present the idea in a way that demystified the concept. When you talked about the word 'legalization,' I think people imagined a sort of laissez-faire law where kids could get marijuana and grow it on the streets or whatever. So we made a conscious effort to frame the language around regulation instead of legalization."

Brian Vicente celebrating at the Amendment 64 victory party.
Brian Vicente celebrating at the Amendment 64 victory party.
File photo

Eventually, the drafters landed on the idea of comparing cannabis regulation to rules surrounding liquor. "When you talk about regulating marijuana like alcohol, people instantly know what it means, to a large extent," Vincente explains. "You have to be 21 and over, it has to be produced with government oversight to make sure it's safe, people can't drive under the influence. Then we looked at the state alcohol code and tried to figure out how to make that into a workable system via the Department of Revenue."

He acknowledges that "it was a big responsibility to write a constitutional amendment, so we wanted to really put a lot of thought into it — and we knew there were certain guiding principles that marijuana reform activists wanted in."

The most controversial of these, in Vicente's estimation, "was cultivation, which didn't poll very well — and even some reform advocates thought that was going too far. But we said, 'We believe that's a key part of the legislation — to allow people to grow their own medical marijuana or marijuana for their own use.' After all, I can brew beer in my own house and the world continues to turn. So what's the big deal about being able to grow a marijuana plant?"

Other major topics included "discussions about taxation and the age of consent," he notes. "Polling showed the public wouldn't support the age of eighteen, for example. And another interesting case that came up was what to do with hemp. We'd spent hundreds of hours developing language for marijuana regulation, and then very late in the game, someone said, 'What should we do about hemp?' And that's the provision I can fully claim I authored. I went home that night and went back to Steve the next day and said, 'Let's just write one sentence that says hemp should be legal and regulated by the Department of Agriculture.' And that sentence spawned a major industry in Colorado."

In the lead-up to the 2012 election, Amendment 64 critics came out in force. Nearly every major elected official in the state argued against it, including Governor John Hickenlooper, who signed it into law that December, and a parade of law enforcement representatives certain that catastrophe was on the horizon. "We weren't super-shocked that opponents were offended by the law," Vicente insists. "They basically were offended generally by the idea that people could buy marijuana and not be forced to go on the black market anymore. But by doing things like continuing to criminalize DUI, we sort of defanged the opposition, in a sense."

On the other side of the fence, some marijuana progressives didn't think Amendment 64 went far enough — but Vicente feels the Yes on 64 folks "were able to head off a lot of that because of our deep experience in working in marijuana policy in Colorado for nearly a decade at that point." This background also helped prevent errors in the proposal, including one that was embedded in Amendment 20, the 2000 measure that legalized medical marijuana in Colorado: The earlier measure "allowed people to grow six plants but didn't necessarily cover the actual amount of marijuana produced and harvested at that individual house. A lot of times, if you harvest six plants at once, you'll have more than two ounces. So that was sort of a drafting error, and we fixed that so the resulting harvest would be protected. I'd defended people in court on that issue, so I think we were pretty thoughtful on that."

Even so, Vicente believes that "Colorado definitely took a leap of faith with Amendment 64. We said, 'We're going to be the first place in the world to do this,' and we beat Washington state by a time zone. And by pretty much any measure, marijuana legalization has been successful in Colorado. If you look at the economics, the number of jobs, the $500 million in tax revenue and fees that have come into the state, the lessening of arrests, it's been a positive thing. And it's worth saying that public polling has shown support for marijuana legalization grows year by year. It's become much more mainstream and accepted."

Not that Amendment 64 is perfect. "Looking back, it would have been nice to build in more of a social-justice component to the law," Vincente allows. "Subsequent states have put in more employee protection and other provisions that allow for certain groups historically disadvantaged by the Drug War to have the right to get preferential treatment in terms of business licenses and things of that nature. I think it would have been nice to address that. But at the time, we put in as much as we thought we could get away with and feared that we were pushing things too far."

There's been additional criticism in regard to Amendment 64's language regarding social use, but Vicente defends it: "I think it's actually quite strong. It says local communities can decide what they want to do in terms of licensing businesses for social use. A lot of us agree that's sort of the next frontier, but when we wrote the law, we said it's up to local communities to decide — and unfortunately, we've seen a lot of bureaucracy. Local leaders, the Denver mayor and Revenue folks have been reluctant to move forward, even though voters have said time and time again that they want social use. So we need to continue to push the power brokers on top about social use, particularly in Denver."

Today, the battle against legal marijuana isn't over in Colorado, as evidenced by the regular appearance of sky-is-falling reports from the Rocky Mountain High Intensity Drug Trafficking Area, a federally funded law enforcement organization. "I think it's hard for drug prohibitionists who have spent their entire lives demonizing marijuana and marijuana users," he says. "It's difficult for them to admit that they were wrong. But it's worth noting that for every report the RMHIDTA puts out, there are ten that show the positive results of marijuana legalization done by government entities and groups on the left and the right. The opponents' efforts have been increasingly marginalized, but they're hanging on to the last threads of the Drug War as hard as they can."

As for the November 6 event, Vicente says, "It's about celebrating a benchmark and the past five years and what got Colorado to this point — but I think there will also be some discussion of the future of marijuana policy and the need to continue to fight for progressive drug laws in Denver and beyond. It will be fun to share some insider war stories — some interesting and funny anecdotes that haven't gone public."

The Five Years Later Banquet will run from 6 to 9 p.m. on the 6th at the Ritz-Carlton, 1881 Curtis Street in Denver. Speakers will include Vicente, Fox, Tvert, Yes on 64 advocacy director and Students for Sensible Drug Policy executive director Betty Aldworth and Marijuana Policy Project founder and executive director Rob Kampia. Click for more information about the event.

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