In announcing the passage of Amendment 64, the Regulate Marijuana Like Alcohol Act, during a newscast this morning, National Public Radio floated the possibility that the measure could wind up before the U.S. Supreme Court owing to pot's illegality at the federal level. And if the proposal wound up there, who would defend it? None other than Colorado Attorney General John Suthers, arguably the most vocal critic of marijuana-policy liberalization among major Colorado officials.
"The Office of the Attorney General will defend Amendment 64, as we do all Colorado laws," notes Suthers's spokeswoman, Carolyn Tyler, via e-mail.
How enthusiastically he might do so is another question. A short time before Tyler's note, the AG's office shared Suthers's official statement about the passage of Amendment 64. (Governor John Hickenlooper and a spokesman for U.S. Attorney John Walsh had already done so.) In his response, on view below in its entirety, Suthers uses quotation marks and strong wording to signal his displeasure at the measure's approval. But he also makes it clear he'll do his duty as the state's attorney general. The introduction begins:
Despite my strongly held belief that the 'legalization' of marijuana on a state level is very bad public policy, voters can be assured that the Attorney General's Office will move forward in assisting the pertinent executive branch agencies to implement this new provision in the Colorado Constitution.
Shortly thereafter, however, Suthers cites Gonzales v. Raich, a 2004 Supreme Court case, as evidence that the jurists recognize "the ability of the federal government to criminally sanction possession, use and distribution of marijuana, even if grown, distributed and used in a single state." (The complete ruling is also below.) As such, he asks that the Justice Department "make known its intentions regarding prosecution of activities sanctioned by Amendment 64" as soon as possible in order to aid Colorado officials moving forward.
For good measure, he adds his view that Amendment 64 proponents improperly claimed that approval of the act would result in a tax windfall for school construction. He maintains that because its authors "did not comply with required language under the Taxpayers Bill of Rights...no such tax will be imposed," making the possible generation of $40 million in revenue "speculative."
That Suthers is no fan of Amendment 64 comes as no surprise. He's frequently decried the expansion of the medical marijuana industry in Colorado, albeit by arguing at times that voters for Amendment 20, the 2000 measure that authorized it, didn't know they were approving such a system -- a complaint he can't make this time around.
Continue to read more about John Suthers and Amendment 64, including his complete statement. In early 2010, Suthers actively lobbied the state legislature against HB 1284, which blessed the creation of a dispensary system. In a letter to members of the Colorado General Assembly, he wrote:
I believe the objective of the legislature in passing medical marijuana legislation should be to implement Amendment 20 and the intent of the voters who passed it. To embrace commercial dispensaries or clinics as a means of distributing marijuana would go far beyond the intent of the voters. In my opinion, it would constitute de facto legalization. But the voters rejected legalization of the drug by a 60/40 margin in 2006. I strongly believe the voters should have a say if the state is going to go beyond the parameters of Amendment 20.
He echoed these thoughts in a March 2010 interview with Westword. "If the legislature wants to take action statutorily, they can. I think most legislators understand that in approving dispensaries, they'd be taking a leap forward legislatively beyond what Amendment 20 says. And that's their right. They could legalize marijuana in Colorado if they wanted to. But I'd say 90 percent of the e-mails and communication that comes into this office are on the anti-expansion side, with people saying, 'This isn't what I voted for.' And they're right. This isn't what they voted for."
He also noted the following about his concern regarding marijuana use in general, especially as it pertains to young people:
"A lot of people say, 'He's just a dinosaur drug warrior,' But I care about future generations, and somebody's got to have their eye on the ball. I've listened to all the debates in the legislature about school dropout rates and so forth, with people trying to understand why it's happening. But has anybody stopped to think the problem is too many kids are coming to school high? That's why we have the dropout rates we do, along with poor parenting -- and this is only going to exacerbate the problem.
"Ten years from now, when members of the legislature look at these rates and see that there hasn't been an improvement -- that they've actually gotten worse -- they'll say, 'We sure made a mistake ten years ago.' That's why somebody ought to point out now that these things have consequences. And I'm perfectly willing to do that."
In the years since then, Suthers has continued to play a similar role. This past May, for instance, he weighed in on a Drugfree.org survey suggesting that teen pot use has been rising throughout the country. "Given the path Colorado has gone down -- creating a marijuana industry far beyond what the voters approved in Amendment 20 -- this growth in teenage marijuana use and the diminished perception of risk are highly predictable," he said in a statement. "I would encourage Colorado policymakers to consider the trajectory we are on as they consider future marijuana laws and policies."
Not the words of a man likely to relish defending Amendment 64. But such a scenario is hardly beyond the realm of possibility.
Here's the Amendment 64 statement, followed by the referenced court case.
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The following statement is to be attributed to Colorado Attorney General John Suthers in reaction to yesterday's passage by Colorado voters of Amendment 64.
"Despite my strongly held belief that the 'legalization' of marijuana on a state level is very bad public policy, voters can be assured that the Attorney General's Office will move forward in assisting the pertinent executive branch agencies to implement this new provision in the Colorado Constitution.
"Coloradans should be cognizant of two caveats, however. First the ability of the federal government to criminally sanction possession, use and distribution of marijuana, even if grown, distributed and used in a single state, was recognized by the U.S. Supreme Court in Gonzales v. Raich (545 US.1,2005). Therefore, absent action by Congress, Coloradans should not expect to see successful legal challenges to the ability of the federal government to enforce its marijuana laws in Colorado. Accordingly, I call upon the United States Department of Justice to make known its intentions regarding prosecution of activities sanctioned by Amendment 64 (particularly large wholesale grow operations) as soon as possible in order to assist state regulators and the citizens of Colorado in making decisions about the implementation of Amendment 64.
"Secondly, the proponents of Amendment 64 told voters that it imposed a surtax of up to 15 percent on marijuana sale that would result in up to $40 million each year going to K-12 schools in the state. In fact Amendment 64 did not comply with required language under the Taxpayers Bill of Rights and no such tax will be imposed. Instead it will be up to the Colorado Legislature whether to refer such a tax to the voters and up to the voters of Colorado whether to actually impose the tax. Therefore, such revenue is speculative and will not be forthcoming when Amendment 64 begins to be implemented."