I-502: An Open Letter To Marc Emery, From A Supporter

As for the initiative Mr. McKay is sponsoring; I-502 is not legalization, and in fact, creates a new form of prohibition. It is incredibly difficult for many of us who spend our lives working for legalization, to oppose this initiative. However, we cannot in good conscience support something that will further criminalize our citizens, specifically targeting the most vulnerable of our citizens, medical patients.

Currently, there are thousands of arrests for cannabis possession in Washington. Many of these are for over an ounce, and many of these occur at roadside. As the law stands, if you do encounter law enforcement while driving, and you have THC in your blood, the officer must prove your impairment to issue a DUI. Since THC processes through each individual at a unique rate, there is no way to determine impairment based on a number – therefore, the proposed 5ng limit in I-502 is completely arbitrary.

There are tens of thousands of medical cannabis patients in Washington State. Most of them will be over the 5ng limit constantly, due to their increased tolerance and need to medicate regularly for their medical conditions. This does not mean they are constantly impaired, but that a 5ng limit does not take into consideration their needs and simply incriminates them (and the proposed zero tolerance policy for those under 21 immediately criminalizes any patient in that age group, of which our state has many).

The same applies to heavy recreational users who build up a tolerance over time. I-502 institutes a per se law, and does not include rebuttable presumption, so any person caught on the road over 5ng is immediately guilty of a DUI, with no applicable defense in court – even patients. This strips our citizens of the right to a fair trial.

Studies have been done to determine a significant and science-based level of THC/blood content at which we may draw a legal line. So far, we have yet to establish a limit that we can use to reasonably determine intoxication. In fact, the State of Colorado appointed a working group commission to study the validity of a 5ng limit (the same proposed in I-502). They came to the conclusion that there is no consensus to apply such a limit, and that it has the distinct possibility of prosecuting innocent (unimpaired) individuals.

A State Representative here in Washington, Mr. Roger Goodman, proposed an 8ng limit for this state, and personally withdrew his proposal after suffering public backlash, and examining the science. He helped Colorado defeat the bill proposing a 5ng limit. Furthermore, organizations like NORML and MPP (which goes as far as calling this same limit absurd) have been lobbying and fighting against per se DUI limits for cannabis for decades. This is not just a few small voices in Washington crying foul – there has been an on-going effort to deter the implementation of a per se DUI limit in states across the country.

If you need more proof of how negative this policy is, look to our Drug Czar. One of his top priorities is establishing a per se limit on a national level.

I would also like to speak on the presumption that, should I-502 pass, adults will be capable of opening cannabis retail locations or purchasing up to an ounce, without fear of arrest or prosecution. Ignoring the fact that two adults riding in the same car together each carrying a legal ounce would still be considered guilty of a constructive possession felony charge; ignoring the fact that two adults passing a joint to each other (even if it’s rolled from a legal ounce) would still be guilty of distribution (which smacks of entrapment from lack of protection provided for people who will think smoking a joint with a friend will be legal); ignoring all of these facts, I-502 is not written to withstand the looming threat of federal pre-emption (if a state law comes in conflict with our federal laws, the state law is nullified and federal law presides).

Besides the fact that I-502 can, and likely will, be federally pre-empted, there is the real risk of the federal government directly targeting and attacking the individuals who open, or attempt to open, the cannabis retail locations this initiative claims we will be allowed to establish.

Since I-502 does not include any home-grow provision, every person who wishes to cultivate, process, or distribute cannabis will have to seek a permit from the State Liquor Control Board. Each individual will be mandated to put their name on a list, which will be readily available for the federal government to access, and do what they will with the information (the fingerprints of all applicants will be sent to the FBI), putting individuals in the position to face swift and harsh federal penalties, similar to the travesty you’ve faced. 

If the federal government is cracking down on medical dispensaries and co-ops in this state, what would give anyone reason to believe they would be any less harsh towards actual recreational retail locations? Unfortunately, there are those who won’t worry about putting their name on that list, since they will be under the impression that they are operating under the legal guidelines 502 offers them.

It is for all of these reasons, that your statement about activists in Washington strikes me to the core. Your words have dealt a tremendous blow to the heart of cannabis activism in this state. The grassroots activists that you refer to, that oppose I-502, have been fighting to defend our citizens from unjust cannabis laws – and continue to do so, through battling prohibition,
and now the newest form of prohibition proposed by I-502.

Again, it is a very difficult thing for those of us who support legalization to oppose this initiative. Were it not for the criminalization of every cannabis consumer who drives (again, by mandating something our Drug Czar heavily promotes), there are many of us who would consider supporting it as a step in the right direction, or at the very least wouldn’t be in opposition to it. Unfortunately, this is not the case, and many of us feel this will be incredibly detrimental to the cause as a whole, and specifically to the citizens of Washington State (and any other states that would choose to follow our example, should we pass this initiative).

It is demoralizing to have people talk us down over such legitimate concerns. People such as Mr. Russ Belville, who you mentioned, and who I also greatly respect for the work he has done for this movement. I will agree he wrote only positive-influence pieces before he started saying things like “I have lost my patience for patients. Yeah, yeah, you’re sick and disabled, sorry to hear it.”

This is a poor representation of our culture, and I cringe to hear someone affiliated with the movement say such apathetic things about sick and disabled individuals. In my work as a cannabis activist, I often advocate those new to the movement look to people such as yourself as a role-model. You have done more and sacrificed more for this cause than most will ever do, and for that I feel many should look to you as an inspiration.

Your stance on I-502, however, leaves me with the painful and overwhelming disappointment of having to state that, in this instance, you are wrong.

I hope that what I have stated here will not offend you in any way, as I have tried to express only my incredible gratitude towards you and your family for the contributions you have made to this movement, and I sincerely hope that it will make you think through this situation with a new perspective. All we can do is educate people and hope they make the right decisions with that knowledge. I hope this gives you the information you need to reconsider your support for I-502, and your feelings towards activists here in Washington.

Thank you again for everything you have done for this movement. I hope you are well, and I wish for your swift return to freedom and your family.

Sincerely,