Can DC Decriminalize? Fully Legalize?


You have to love a scrappy fighter. The District of Columbia legalized marijuana for medical use in 2010. In March 2014, the DC City Council moved to decriminalize private recreational use. On June 25, 2014, House Republicans moved to block funding for that law. The Senate has yet to agree, but confusion reigns as to what that might actually mean, if it did pass.

On June 29, 2014, The Washington Post reported that advocates for full legalization are poised to place full legalization on the ballot in November. If Congress blocks the funding, however, city officials would be legally prohibited from tallying the votes in November. There is a lot going on here, and the story is about home rule as much as it is about marijuana.


Home Rule

To bring everybody up to speed without going too far back into the mists of time, Washington, D.C., is governed like no place else in the United States. Since 1973, it has had some limited authority to govern its own affairs, with an elected mayor and council. All legislation approved by the council, including the city’s budget, is subject to approval by Congress, in which residents of the District have no voting representation. When dealing with politically hot issues, such as gay marriage or pot legalization, members of Congress may vote in ways that appeal to their constituents, rather than in the interest of the residents of the District. Add to this a dollop of racial tension: The District is largely African-American. Congress is not.


The Move to Decriminalize

In March, DC scaled back the penalty for possession of up to one ounce of marijuana to $25, approximately the cost of a parking ticket, and half the fine for underage cigarette smoking. Public consumption remains a crime. The law had been scheduled to take effect on July 17, 2014, after a 60-day Congressional review period.

The measure was hailed as a move for fairness in a city that has the highest arrest rate in the country for marijuana possession. According to The Washington Post, an ACLU report found that 91 percent of those arrested for marijuana possession in 2010 were African-American.


Congress Tries to Block DC

The measure, introduced on June 25 by Republican Rep. Andy Harris of Maryland, would preclude the District from spending any money “to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any” federal controlled substance. (Just to catch the full flavor of the Congressional mood, another amendment to the same spending bill would include a prohibition on D.C. spending its own money on abortions for poor residents.)

The language brought back some bad memories. Some fear that 2014 is shaping up like 1998. That was the year that 69 percent of DC residents actually voted to approve a ballot measure to legalize medical marijuana, but a similar maneuver by Congress blocked implementation of the measure for a dozen years.


What Does this Mean?

It is not entirely clear what this means because decriminalization does not necessarily cost any money, except for the expense of collecting fines. Some have suggested that the delicious irony of defunding is that it would leave DC with decriminalization but no ability to enforce civil fines or impose jail time, which looks remarkably like outright legalization.

The city, taking a more cautious stance, has announced its intention to implement the reduced penalties, while acknowledging that the future of decriminalization is uncertain. It has also warned that the amendment might force the city to shut down its entire medical marijuana program.


Advocates Want Initiative 71 on Ballot

Apparently acting on the theory that the best defense is a good offense, legalization advocates seem to have more than enough signatures to put Initiative 71 on the ballot in November. That Initiative would permit personal possession of up to two ounces of marijuana for those over 21, growing up to three plants and use or sale of paraphernalia associated with consumption, growing or processing.

The Washington Post poll from this past January suggests overwhelming support for legalization. But if Congress were to prohibit the District from spending any money to carry out any law to legalize any federally controlled substance, would that not prevent officials from counting the votes on the Initiative? That is the nightmare scenario.

It may be a race against time. Of course, the Senate may not approve a measure that includes the prohibition on spending to implement decriminalization or legalization. If it does, it may matter whether the measure becomes effective before or after the November election.  In any event, without laboring the obvious, it is fair to say that there will be a lot to watch in local DC politics and the trend toward legalization over the next few months.

Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

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