Prohibition in America never ends with a bang. Take alcohol, the subject of two constitutional amendments and about as clean cut a federal case as one could ever conceive. Ratified in 1920, the Eighteenth Amendment banned booze’s “manufacture, sale, or transportation,” full stop, though some fixers such as Joe Kennedy amassed fortunes using complicated legal maneuvers to navigate around those plain and terrifying words.
Thirteen years later, the Twenty-first Amendment began with the straightforward clause “The 18th article of amendment to the Constitution of the United States is hereby repealed.” Then came the fine print—and the politics.
Spirits were still outlawed in states and localities that decided to stay sober, the amendment stated. That latter clause is why Utah—Utah!—felt comfortable voting to put the national Prohibition-ending amendment over the top. Some states post-Prohibition punted the wet or dry decision to the counties. Others states decided to allow boozing again statewide, with a raft of restrictions. After all, there were serious concerns it might lead to dancing.
As the prohibition of alcohol slowly ebbed, the looming question mark was the black market. Would bootleggers go legit? Would speakeasies come out of the shadows? Would rum runners slow down?
It would mean paying taxes on a substance that had been extremely profitable, to a government that had been at times vicious in its crackdowns. By and large, booze businessmen eventually swallowed their pride and went straight, for solid financial reasons.
“The customer is always right,” rang the old motto of department stores. America’s black market trade in booze made a lie of it. “Prohibition always trades out good drugs for bad drugs,” said my friend Joel Miller, author of the drug war history Bad Trip. Crackdowns reduce contraband in variety and quality, and hike the price to well above normal market rates.
Thanks to black market merchants and rampant police corruption, boozehounds could still lay their hands on alcohol during Prohibition, technically, but it wasn’t anything to write to Robert Parker about. Miller said, with some hyperbole, “We traded wine and spirits for bathtub hooch, the kind that makes you go blind half the time.” No wonder consumption went down.
Prohibition’s end gave drinkers the opportunity to pull out the stopper, to send the horrible hooch down the drain and to reach for better booze on a higher shelf. It did this on close to a national scale, after a relatively short period of time of enforcement of a horribly unpopular law.
In hindsight, we can see why the saloon would ultimately beat out the speakeasy. It increased choice, reduced violence and returned the American drinking man to his rightful barstool.
Pot is different. It was outlawed and periodically cracked down on after 1937. President Richard Nixon really launched the national war on weed as we know it with the establishment of the Drug Enforcement Agency in 1973. That struggle persists, in most of these United States, unto the present day.
State-based legalizers had mixed results at best until they struck Red Dirt in Colorado and Washington with ballot initiatives in 2012. Voters, not politicians, decided enough was enough, though let it be noted that Washington’s Initiative 502 was endorsed by losing GOP gubernatorial candidate Rob McKenna, and opposed by his Democratic opponent Jay Inslee.
Colorado’s pot legalization path is taking a modified county rule approach, with most pot shops open for business starting January 1. Well over 60 localities have enacted outright bans on any pot sales. These are called “smokeless counties,” though the term is misleading because they can’t do much about the private pot smoking of adults over 21 or bust them for growing up to six plants for personal use.
Cautious Colorado cities have taken a wait-and-see approach on allowing sales, with a few tragicomical results. The southeastern town La Junta rejected petitions to put pot sales on the ballot because…let’s let this 100-percent accurate, jaw-dropping Huffington Post headline explain it: “Legal Weed Sales Halted in Colorado Town Due to Lack of Staples in Paperwork.”
Other, more adventurous locales have inhaled deeply and passed that joint on. In Denver, the story is different than in La Junta, as we will no doubt be reading soon, because the Denver Post appointed former arts editor and music critic Richard Baca to be its inaugural “marijuana editor.”
Baca will oversee the paper’s pot coverage as well as the launch of a separate website just for pot news. “Wonder if they’ll run weed reviews,” one wag writes. There’s no good commercial reason for the new site not to do just that, if Baca wants to compete for readership of established pot publications such as High Times.
And if not, there are plenty of other Mile High pot stories to tell. Some recent hits, if you’ll, pardon the unavoidable pun, include:
• Colorado ski resorts, worried about people slaloming while stoned, are considering cracking down.
• Smokeless counties are jostling for dope sales tax dollars, complaining that they will still have to deal with the social problems that come with greater marijuana consumption, as locals can buy pot nearby or grow their own.
• The state is becoming a modern Mecca for medical marijuana pilgrims.
• A whole generation of drug dogs may have to be retired early because they can’t be taught to unlearn old tricks. Retraining them to “alert on” (i.e., bark at) cocaine but not pot is not possible. Thus their use in establishing probable cause for searches and the like is legally dicey.
Washington took a more statewide approach than Colorado. It gave the task of regulating marijuana sales over to the Washington State Liquor Control Board, which had just overseen the closure or privatization of all the state run liquor stores.
Both actions were ordered by voter initiative. Folks who draft initiatives here trusted the board to do its job much more than the legislature. The Control Board has tried to replicate something similar to the system set up to distribute booze in state for pot, with modifications. The board pledged it would respect the votes of cities and localities if they did not want pot sold locally, for instance.
Licensed Evergreen State pot dispensaries had already been set up with the purported purpose of serving only qualified medical marijuana users, and were subject to crackdowns when they went beyond this warrant. Many of these dispensaries were set to sell pot to all adults over 21 as of January 1, with other shops to join them. The state is issuing licenses for a price allowing people to grow their own pot or to grow pot for sale to the dispensaries, creating a fledgling free market for marijuana.
At the same time, and for the last 40-plus years, the local black market in marijuana has been, well, growing. It has well-established distribution channels, a diversity of relatively high quality products—according to potheads—and delivery available for a price that will not break the budget of most users who toke up to the upper end of casual usage.
Washington’s black market in marijuana has run-ins with law enforcement, but is not taxed and usually offers users pot with higher concentrations of THC, the hallucinogenic substance in weed, than the dispensaries will want to sell. For new users, that’s not a serious sticking point. However it doesn’t take a prophet to predict that many potheads are going to see the state-sanctioned scrub as an inferior product at a higher price.
Which fires up the burning question: Might the limits of the current reforms give black marketeers a chance to stay in business in Washington long past January 1?
Miller argued that liberalizing “needs to be commensurate with the complexity of the market.” Given how developed the pot market has become, it’s going to take “a lot of liberalization to lure people out of the shadows, otherwise the people who are used to operating with zero restrictions will continue to scoff the law.”
He pointed out that smuggling of legal but heavily taxed substances such as tobacco is on the rise. He gave the example of cheap Nevada cigarettes being shipped into California by the truckload. As long as California’s taxes remain high and Nevada’s low, he said, we should expect more of the same.
Pot, likewise, is rarely interdicted, by the federal government’s own reckoning. Marijuana growers and distributors have proven adept at getting the lion’s share of their product to market, around the attempts of law enforcement to keep that from happening. With a more relaxed legal regime but a formidable regulatory regime for legitimate distributors, illegal pot dealers might be emboldened rather than edged out.
That was a good insight, but what did actual scofflaws have to say on the subject? It seemed like a good idea to go talk to a drug dealer and find out.
Tracking down a serious pot peddler to interview is not as easy as you’d think. It’s not hard to find people who smoke pot and deal small amounts on the side, but they’re marginal players in the industry with little insider-y insight as to its future. People further up the distribution chain are more interesting, but harder to reach.
Pot-inspired paranoia didn’t help this search. Requests for interviews were sent out to about 30 known pot users in Bellingham and other parts of Whatcom County. These requests went out the week of December 6. That is the date on which, by law, possession or consumption of marijuana by those at least 21 years old was no longer even nominally illegal.
The overwhelming response was a non-response. Potheads likely saw the words “American Spectator” and thought the story screamed “Narc!” even though that word no longer has much legal force to it. Only two users would even consider talking and only if their names were not mentioned.
Fortunately one user, who we’ll call Woodstock, proved chatty. He said he personally knew “like five or six dealers, probably” in Bellingham who could sell him dope. Did he know any in Lynden? “One. Ish. I know of one,” he said.
He delivered a bewildering tutorial on the quantities that people order pot in, of “dubs” and “40 sacks” and the like. Woodstock said that too many dealers put their fingers on the scale to pad profits. The key was to be “really tight with the person” who sells you pot. He bragged, “My dealer weighs me out to the ounce.”
He prevailed upon that dealer—who we’ll call Snoopy because, why not?—to meet in a public place for an interview. Snoopy looked and fit the demographic of your stereotypical Bellingham pothead: college-age white male in vaguely hipsterish threads.
Snoopy proved intelligent and proud, lecturing on the crop cycles of marijuana, profit margins, and the different law enforcement regimes of various states. What did he think of the attempts to launch a fledgling market? “It’ll work,” he said, without hesitation.
Plenty of new people will try pot “just because it’s legal.” Dispensaries will be able to have 15 or 20 different strands, far more variety than any dealer can carry. The permitting system will mean the “market will be flooded with inferior weed,” Snoopy opined, “but new customers won’t care.” Some of the higher end reefer may find its way into his supply line.
Was Snoopy worried the competition would put him out of business? He waved it off. “It’s not bad. They’re going to tax it,” he said. That puts him at an advantage, since he doesn’t pay taxes.
The pot peddler figured that he could continue to give his cultivated group of clients better reefer at lower prices than the dispensaries for the foreseeable future. “Five years from now,” he said, “the black market will still be all right.”
How about 10 years out? He paused a bit before answering that one. Snoopy said finally that “nothing” the government could do would shut him down, but he seemed to say it with more braggadocio than conviction.
The larger question that looms over legalization in both Colorado and Washington is: What will the federal government do?
Though pot has been made legal in both states, it is still outlawed federally. The Tenth Amendment ought to give states some say here, but good luck getting courts to agree to that. Decisions of folks in the White House and the Department of Justice are thus all important.
“States have obviously started to loosen up. The federal government just doesn’t know what to do about it,” said Miller. He called the federal government “schizophrenic on the issue.” He pointed out that President Nixon talked up treatment yet gave us the modern war on drugs. Then things were much “clearer” under Presidents Ronald Reagan and George H.W. Bush, “but in the wrong direction.”
Bill “I didn’t inhale” Clinton, didn’t dare go there. He thought voters wanted a law-and-order presidency and aimed to give it to them, his own impeachable peccadillos notwithstanding. Clinton canned Surgeon Joycelyn Elders not after she opined Johnny ought to be taught how to masturbate by the public schools, but after she said a few words in favor of drug legalization.
Bush the Second lost the popular vote in 2000 and had to go into special Supreme Court-mandated Florida recount overtime after 11th hour revelations surfaced of a DUI that had been swept under the carpet. His was an AA presidency. There was no chance he was going to back liberalization, even if he wanted to, for fear of reminding voters of the thing that almost cost him the office.
President Barack Obama insulated himself against drug accusations by openly confessing to extensive pot and cocaine use in his biographies. During his campaigns, however, he promised conformity with the generally hard line on drugs preferred by his predecessors, not a departure from it. Under his watch, agents of the DEA continued to raid plenty of pot distribution centers around the country that enjoyed the blessing of state or local governments.
In Lynden, Washington, following the guidelines of the State Liquor—and pot!—Control Board, the city council voted for a one year moratorium on allowing marijuana sales in city limits. It did so initially not for prohibitionist reasons but for prudential ones. The city didn’t want to allow a dispensary only to have it raided by feds or tangled up in litigation. Many other cities and towns did the same thing for the same reason.
Then the Justice Department unexpectedly backed off. In late August, the DOJ sent a letter to the 50 state attorneys general with an all-important clarification. The top law enforcement body announced it would not take legal action to challenge states that decide to legalize, thus clearing the way for the Great Pot Legalization Experiment of 2014.
Eyebrows raised briefly in November when the DEA raided a Colorado house of a man who had applied for a pot permit. The agency quickly explained itself. The man had been targeted because of a connection to Mexican narco-traffickers. This should in no way be considered part of a broader crackdown. Locals could get back to rolling their own without fear of reprisal.
So let the good times roll? Well…we’ll see.