About Alison Holcomb

ACLU of Washington Drug Policy Director

Recent posts

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  Federal: Illegal, State: Legal

  1 0 Hi, NervousNell.  As requested, here's the policy director weighing in.  :-) In the U.S., we have a system of "dual sovereignty."  The federal government is one sovereign, and the individual states are each sovereigns as well.  Accordingly, people standing on U.S. soil are simultaneously subjects of two different sovereigns: the federal government, and the state within which he or she is standing. Each sovereign gets to create its own laws.  States can create laws on the same subjects that Congress makes laws, and the states' laws can differ from the feds' - as long as they don't run afoul of the Supremacy Clause of the United States Constitution.  The Supremacy Clause, which is Article VI, Clause 2, says, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."  This last phrase, "any Thing in the ... Laws of any State to the Contrary notwithstanding" means state laws can't conflict with federal laws that address the same topic.  This is the source of the "federal preemption" doctrine that says that federal laws preempt - or, trump - state laws whenever the two conflict. In the context of drug laws, we have even more guidance.  The federal Controlled Substances Act contains its own preemption provision, 21 U.S.C. sec. 903.  That provision says, "No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together."  In other words, states can create laws about marijuana that are different than the federal law as long as they do not create a "positive conflict." What's a "positive conflict"?  In County of San Diego v. San Diego NORML, et al., the California Court of Appeals explained that a state marijuana law creates a positive conflict with the federal Controlled Substances Act only when the state law affirmatively requires someone to perform an act that would be a violation of the federal marijuana prohibition.  For example, if Washington were to pass a law that required every farmer to grow at least one acre of marijuana, that law would be subject to federal preemption under 21 U.S.C. sec. 903.  Washington law can't require someone to break federal law. But that doesn't mean Washington can't make marijuana legal under state law.  Washington has a Uniform Controlled Substances Act that is roughly parallel to the federal Controlled Substances Act.  The federal provision that prohibits marijuana possession is 21 U.S.C. sec. 844; the Washington provision is RCW 69.50.4013.  Washington could amend RCW 69.50.4013 to exclude marijuana, so that someone who possessed marijuana wouldn't be breaking state law.  This wouldn't mean that anyone would be required to possess marijuana, just that possession wouldn't violate state law. This would protect somone possessing marijuana in Washington from being prosecuted under state law, but it wouldn't provide protection from prosecution under the federal law.  However, the practical reality is that the federal government doesn't waste resources on small-scale marijuana offenses.  Thirteen states already have laws providing that possession of a small amount of marijuana is not a crime. So, Washington can make marijuana possession legal under state law simply by removing that offense from the state Uniform Controlled Substances Act.  That wouldn't pose any federal preemption problems.  The more interesting question, though, is what would happen if Washington decided to bring marijuana production and distribution under a regulatory system - in a manner similar to alcohol, for example.  Such a system would most likely require someone to break federal law (depositing sales tax in a bank would constitute money laundering, for example) and therefore be vulnerable to a federal preemption challenge.  But how would the political landscape change?  Might a state's expression of its willingness to try something different from our failed experiment with marijuana prohibition catalyze change at the federal level? Alison Holcomb answered in Weed Week about 1 year ago Answer, comment & read 4 more answers »

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  OK, straight up. What are the real risks of recreational or chronic marijuana use?

  1 0 There is some pretty decent science-based information compiled by the California Society of Addiction Medicine available here. Alison Holcomb answered in Weed Week about 1 year ago Answer, comment & read 7 more answers »

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  How much does the war on drugs really cost?

  1 0 We put up a blog post last May that builds off an excellent AP piece analyzing what the War on Drugs has cost the U.S. since it was launched forty years ago, and how the Office of National Drug Control Policy has doctored its books (including a link to the FY2010 budget) to downplay the disparity between the federal dollars spent on failed law enforcement strategies versus the dollars spent on treatment and prevention. Alison Holcomb answered in Weed Week about 1 year ago Answer, comment & read 2 more answers »

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  What would you recommend should be done to encourage the feds to take cannabis off schedule one?

  0 0 The answer depends on whether you think whole-plant cannabis should continue to be treated as a controlled substance, like prescription medications, or instead primarily as an herb that has both medicinal and intoxicant uses.  If the latter, there's no reason to reschedule it - you could remove it from the federal Controlled Substances Act altogether and place it under different regulatory controls, perhaps like legal intoxicants or herbal remedies. The legal mechanics of rescheduling (to, say, Schedule II, III, or IV), and the U.S. history of attempts, are covered pretty well here.  Politically, one would want to continue to build the science base around the medical benefits and actual (versus imagined or exaggerated) potential for harm, which the federal government has made extremely difficult through its stifling of research into the therapeutic uses of cannabis. Removing whole-plant cannabis from the Controlled Substances Act altogether ultimately has to happen at both the federal and international level (due to treaty obligations), but needs to start with the states.  Congress is not likely to move until states push them to do so. To move the states, you have to move the people - and not just the people who are already with you.  Sen. Jeanne Kohl-Welles's introduction of SB 5615 and Rep. Dave Upthegrove's introduction of HB 1177 in the Washington state legislature in 2009; Rep. Mary Lou Dickerson's introduction of HB 2401 in 2010; and Rep. Dickerson's introduction of HB 1550 in 2011 all provide great examples of how to move a state's conversation around cannabis law reform from the choir to the mainstream: see Exhibit A, B, C, D, E, F, G, and H.  Creating a space for dialogue that is free of both the Reefer Madness and Cheech & Chong stereotypes allows us to engage a broader audience in a serious discussion about whether a new approach to cannabis - one based on a public health model rather than prohibition and criminalization - might serve our communities better. Once you've engaged people in talking about the possibility of a new approach, you can start to hammer out the details of what that new approach might look like.  And then you can ask them to vote it into law. The proposal might meet a court challenge, but until a state's legislature or voters demonstrate the political will to try something new, Congress will not be moved to change federal law to allow the experiment to proceed. Alison Holcomb answered in Weed Week about 1 year ago Answer, comment & read 2 more answers »

• Comment on Alison Holcomb's answer…

  0 0 Mark, you're welcome. Protosaurus, the Single Convention on Narcotic Drugs, 1961 (http://www.unodc.org/pdf/convention_1961_en.pdf), amended in 1972, established four Schedules of substances subject to the agreements contained in that treaty. The United States is a signatory (Party). Cannabis and Cannabis resin are listed in Schedule I. Article 28 of the Convention (cannabis), read in conjunction with Article 23 (opium poppies), specifically allows Parties to create government agencies which may license cannabis producers. In the U.S., that agency is the DEA, and the DEA has licensed the University of Mississippi to produce cannabis. Ol' Miss currently has the government monopoly on cannabis production in the U.S. For more information: http://www.aclu.org/drug-law-reform/matter-lyle-craker. Article 28 also specifically excludes industrial hemp (generally recognized as cannabis containing a THC concentration of less than 0.3%). Alison Holcomb commented about 1 year ago

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  Who is responsible for the state schedule designation of marijuana in Washington, what schedule is it, and what, if anything, is being done to re-sche

  1 0 The state Board of Pharmacy has the authority to schedule and reschedule controlled substances under RCW 69.50.201. The state legislature could also reschedule by amending the Uniform Controlled Substances Act to remove marijuana from Washington's Schedule I. The problem is that until the federal government - through either the Drug Enforcement Administration (DEA) or Congress - reschedules marijuana within the federal Controlled Substances Act, rescheduling at the state level serves little purpose. This is because the ability to prescribe controlled substances is controlled by the federal government through DEA registration. If the DEA believes a prescriber "has committed such acts as would render his [or her] registration ... inconsistent with the public interest" (by, say, prescribing marijuana), the agency can initiate proceedings to revoke his or her DEA registration.  This would prevent the medical professional from prescribing medications and thereby make it difficult to continue practicing medicine. This is exactly the tactic taken by the federal government when California passed our nation's first medical marijuana law in 1996.  The feds threatened the DEA registration of any California doctor who recommended marijuana in compliance with state law.  The ACLU sued and won an injunction.  The distinction between a prescription and a medical marijuana recommendation was key to the decision: On appeal, the government first argues that the "recommendation" ... is analogous to a "prescription" of a controlled substance, which federal law clearly bars.  ...  If, in making the recommendation, the physician intends for the patient to use it as a means for a patient to obtain a controlled substance, then a physician would be guilty of aiding and abetting the violation of federal law. Conant v. Walters, 309 F.3d 629, 635 (9th Cir. 2002). Federal control of the ability to prescribe is why Oregon's rescheduling of marijuana last summer had no effect on practitioners' ability to prescribe it. Alison Holcomb answered in Weed Week about 1 year ago Answer, comment & read 2 more answers »

• Comment on Alison Holcomb's answer…

  0 0 I'm with you, THC. We definitely need to keep working toward full relegalization. Many thanks to you for the work you're doing toward that goal, and on behalf of Washington's patients. Alison Holcomb commented over 2 years ago

• Comment on Alison Holcomb's answer…

  0 0 Thank you so much. I was flattered to be asked to serve as a panelist, and it's good to hear that my efforts to be informative were appreciated. Thanks for the excellent questions! Alison Holcomb commented over 2 years ago

• Comment on Kevin's answer…

  0 0 Naturopathic doctors, as well as physician assistants, osteopathic physician assistants, and advanced registered nurse practitioners, were added to the list of health care professionals who can authorize the medical use of cannabis under Washington state law by the passage of SB 5798 this legislative session. The law goes into effect June 10. (Previously, only MDs and ODs could authorize.) However, bipolar disorder is not one of the qualifying conditions under the law. A prior attempt to add it through petition to the Medical Quality Assurance Commission failed. Alison Holcomb commented over 2 years ago

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  If pot were legal for possession in WA, OR and BC - what tax impacts?

  1 0 Tough question.   You've identified indirect costs that aren't easily quantified - the hardships to families resulting from a breadwinner being locked up or saddled with a criminal record , e.g. - which can translate to additional burdens on taxpayers.  On the other side of the coin, estimating revenues necessarily entails rough approximations of how the price of cannabis, and usage rates, would be impacted by bringing it under the control of a regulated market. How many taxes are collected, and where they are funneled, is also a question of legislative drafting.  For example, last session's HB 2401 , which would have regulated the cannabis market through the Liquor Control Board , proposed imposing a tax of 15 percent per gram .  It also would have created a "marijuana revolving account," with 98 percent of LCB revenues going to the Washington State Department of Social & Health Services' Division of Behavioral and Health Recovery for substance abuse treatment and prevention .  The remaining 2 percent would be retained by LCB for administrative costs. But we do have some figures to consider that come straight from Washington state agencies. According to the fiscal note for HB 2401: Revenues The Department of Revenue (state general fund) would receive roughly $46 million in the first year , increasing to $61 million in FY2019. The Liquor Control Board would receive $140 million in the first year , with 98 percent of that of that going to the marijuana revolving account for substance abuse treatment and prevention services , increasing to $173 million in FY2019. Savings Cities and counties would save $2,655 in court, prosecution, defense, and jail costs per each misdemeanor possession case not charged, for a potential minimal savings of $11,774,925 annually , based on the 4,435 misdmeanor possession cases that resulted in conviction in 2009.  However, there were likely an additional 8,000 cases filed in court in 2009 that didn't result in conviction .  There were 12,428 misdemeanor pot cases filed in Washington courts in 2008.  Cases that don't result in conviction still require prosecution, defense and court time - and can include jail time from an initial booking - so it's not unreasonable to estimate that annual savings could be closer to $20 million. Cities, counties, and the Washington State Patrol save $375 in officer time for each adult misdemeanor marijuana arrest that doesn't happen.  The fiscal note for HB 2401 identifies 8,273 of these in 2008, for a grand total of $3,102,375 in annual savings . Counties would save $7 million annually in prosecution, defense, and jail costs associated with the 700 marijuana-related felony sentences imposed in FY08. Roughly $1.5 million per year in state general fund savings would result from the Department of Corrections not seeing those 700 felony convictions, and another $222,700 per year from the Washington State Patrol Crime Lab not analyzing the pot in those cases.   Alison Holcomb answered in 420: The Straight Dope About Pot over 2 years ago Answer, comment & read 2 more answers »

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