D.C. Legalizes Marijuana: Now What?

Law School Professor Christopher A. Bracey discusses the future and legal implications of Initiative 71.

November 19, 2014
Voters in Washington, D.C., passed Initiative 71 with a solid 69.5 percent majority during November elections, legalizing marijuana in the District. The new measure allows D.C. residents who are 21 or older to possess and grow small amounts of marijuana. The city joins several other U.S. states that have made marijuana legal, despite federal laws that classify marijuana as an illegal narcotic. Initiative 71’s fate remains to be seen—Congress has a 30-day period to review and potentially strike down the law.
 
While marijuana may be legal in Washington for now, universities and colleges will abide by federal law and prohibit marijuana use on campus. GW policy does not permit students, faculty, staff or visitors to possess or use marijuana for any purpose, even if they are 21 years or older.  
 
“GW’s policy is consistent with and required by federal law, and GW’s Code of Student Conduct will continue to subject students who possess or use marijuana to disciplinary sanctions,” the university said in a statement. Faculty and employees must follow rules outlined in their respective handbooks.
 
In an interview with George Washington Today reporter Julyssa Lopez, Professor and Associate Dean of the Law School Christopher A. Bracey explained Initiative 71, its impact on D.C. residents and the challenges reconciling federal and state marijuana laws.
 
Q: Voters in Washington, D.C., approved Initiative 71, legalizing marijuana in the District. Can you describe what the new law means?
A: Initiative 71 was a ballot initiative that followed on the heels of a decision last spring to decriminalize the possession of small amounts of marijuana. It has four main components. Under D.C. law, persons 21 years of age or older may now possess up to two ounces of marijuana for personal use; grow up to six cannabis plants within the person’s principal residence; transfer without payment—which means to give, but not sell—up to one ounce of marijuana to another person 21 years of age or older; and use or sell drug paraphernalia for the use, growing or processing of marijuana.
 
It is still illegal under D.C. law to possess significant quantities of marijuana and/or to sell marijuana, even if you are 21 years of age or older.
 
Q: Have we learned anything from other states in terms of how to enforce restrictions?
A: I think there are many more questions being raised at this point. D.C.'s limitation on the amount of marijuana one is allowed to possess and the prohibition on commercial sale allow it to avoid many of the larger issues, such as regulation, testing of product, review of health effects, etc. Perhaps that is the biggest lesson learned and internalized by D.C.: Approach this issue incrementally and learn from the experience of the trailblazing states.
 
Q: Congress has 30 days to review the law. Is it likely they'll strike it down?
A: It is difficult to predict, given Congress' direct oversight of the city. The relationship is different than that of a state and the federal government. With a Republican Congress, one might imagine the status of the law to be quite precarious. 
 
Indeed, some members of Congress have already suggested that they will attempt to overturn the initiative. On the other hand, conservatives champion the principle of federalism and states’ rights. This would suggest that many conservatives would view this as a matter for D.C. voters to decide free of federal intervention. The optics of such a permissive posture on this issue in the nation's capital may prove too much to bear or be the tipping point for greater acceptance.
 
Q: How will the law affect universities and colleges? Will university policies likely comply with federal law?
A: Colorado state colleges and universities responded very quickly to legalization— they simply banned marijuana from campus. I would predict that D.C. colleges and universities would adopt a similar posture.
 
Q: States—including Colorado and Washington—have also passed marijuana laws, despite being in direct conflict with federal law. Has the discord between federal and state law caused any problems?
A: Yes. Possession and distribution of marijuana remain crimes under federal law, despite permissive state laws. 
 
Although federal prosecutors have relaxed enforcement against personal use, the Department of Justice has said that federal authorities will continue to prosecute to prevent a number of things from developing, including: 
 
• Distributing marijuana to minors 
• Moving revenue from the sale of marijuana to criminal enterprises, gangs and cartels 
• Diverting marijuana from states where it is legal under state law in some form to states where it is illegal 
• Using state-authorized marijuana activity as a cover or pretext for trafficking of other illegal drugs or other illegal activity 
• Preventing violence and the use of firearms in the cultivation and distribution of marijuana 
• Exacerbating adverse public health consequences associated with marijuana use, including drugged driving 
• Growing marijuana on public lands and the attendant safety and environmental dangers posed by marijuana production on public lands 
• Possessing marijuana or using it on federal property
 
In addition, states that allow the commercial sale of marijuana are having difficulty establishing commercial relationships with national banks. Banks are understandingly wary of investigation or prosecution in connection with the marijuana trade. They are seeking greater clarity on federal enforcement priorities. There are federal tax implications as well. Thus, the industry remains in a period of uncertainty because of the conflict between state and federal law.