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Updated Thursday, December 6, 2012 at 08:18 AM

Now that pot's legal in state, will D.C. delegation defend law?

By Kyung M. Song
Seattle Times Washington bureau

WASHINGTON — Washington state's new marijuana-legalization law, which takes effect Thursday, is a direct affront to federal drug policy. So does Dave Reichert — the King County sheriff-turned-congressman — think users still should be subject to arrest by federal agents?

He isn't saying. Neither is Rep. Cathy McMorris Rodgers of Spokane, the highest-ranking Republican woman in Congress.

And Sens. Patty Murray and Maria Cantwell, both of whom personally opposed making recreational pot legal, haven't exactly been at the forefront of trying to resolve the legal limbo.

The Washington congressional delegation's muted reaction likely will do little to help clarify the state's unprecedented conflict with the federal ban on marijuana. It also leaves unclear whether voters — who approved legalization 56 to 44 percent — can expect their elected representatives to vigorously stand up for the state law.

On Wednesday, the U.S. attorney for Seattle, Jenny Durkan, said in a statement that the Department of Justice (DOJ) still was reviewing legalization measures approved last month by voters in Washington and Colorado: "The Department's responsibility to enforce the Controlled Substances Act remains unchanged. Neither States nor the Executive branch can nullify a statute passed by Congress."

But, as some legal experts expected, the DOJ has not acted.

Other legal experts, as well as marijuana advocates, expect the federal government will quietly let the state laws go forward. As Richard Epstein, a professor at New York University School of Law, put it, the Drug Enforcement Agency is "going to play its version of 'don't ask, don't tell.' "

Colorado's law, which mirrors Washington's new tolerance for personal possession of marijuana, is expected to take effect within 30 days.

Unlike Washington's delegation, Colorado lawmakers have taken more decisive action to defend their state's law. Three House members from Colorado have backed a bill to prevent the federal Controlled Substances Act from pre-empting state laws. Of the 10 co-sponsors of the bill, which was introduced by Rep. Diana DeGette, D-Colo., none is from Washington.

U.S. Rep. Adam Smith, D-Tacoma, has been the delegation's most prominent voice on the right of the state to implement the law. He was one of 18 House Democrats, and the only member from Washington, to sign a post-election letter to Attorney General Eric Holder asking the DOJ to refrain from making arrests.

"I don't want to leave my constituents in a limbo not knowing whether a given activity is legal or not," said Smith, a former prosecutor for the city of Seattle, who said he voted for the law.

Smith has not signed onto DeGette's bill but said he supports it in principle.

Smith noted the DOJ has taken a largely hands-off attitude toward medical marijuana, paving the way for its legalization in 18 states and the District of Columbia. But federal authorities still sporadically assert their power, Smith said.

Since January 2010, federal agents have raided more than 200 medical-marijuana dispensaries, labs and cultivation sites in eight states, including Washington, according to Kris Hermes, spokesman for Americans for Safe Access, an advocacy group for medical marijuana.

Washington's new law has left Democrats and Republicans in the state delegation personally at odds with voters' will.

McMorris Rodgers opposes legalizing marijuana. Reichert's office has repeatedly refused to say whether he thinks the new state law should trump the federal ban. Reichert, whose mother took cannabis in a pill form before she died of cancer in 2011, softened his stance on medical marijuana but not to the point of supporting legalization.

Meanwhile, activists in Seattle plan a public celebration at 7 p.m. Thursday at the Seattle Center fountain, despite the new law's ban on public consumption of marijuana. Seattle City Attorney Pete Holmes said he hoped there would not be "unfortunate flaunting" of public marijuana use, which is subject to a fine of about $50.

"I think (Seattle police) will see how well people comply," said Holmes. If they issue tickets, "we will enforce the law."

Staff reporter Jonathan Martin contributed to this report. Kyung Song: 202-383-6108 or ksong@seattletimes.com

The law changes Thursday

Possession: State criminal penalties for possession of 1 ounce of marijuana (or 1 pound in cannabis-infused food, or 72 ounces of cannabis-infused drink) are eliminated. Public consumption of marijuana, like alcohol, can mean a $50 fine.

Employment: The new law does not change the right of employers to drug-test employees.

DUI: A level of 5 nanograms of THC, marijuana's active ingredient, in a driver's blood becomes equivalent to a 0.08 percent blood-alcohol level for driving under the influence.

Source: Initiative 502



U.S. Attorney Jenny Durkan




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